ig Satay pa Bt ee feces 9 eg ete Ay a seen anya aeRO ESPEN MS eer aees rau sus dere CO MET NTS paoREDp apeecccaneavae aatuseonaze Ost staraen ee pe res eRe ee oases woe mewepncene a oe RIOT ETRE SESS OT ORITE an Sa ee erm cgpgeceapetesne ati Schoen — F AERC, an ote eee ae Me cane mam eresetppael Gp izeortonon pe EER CT « & THE MUNICIPAL CODE OF OHIO INCLUDING All sections of the General Code of Ohio relating to Municipal Corporations, with all Amendments and Supplements thereto, together with complete Annota- tions of Decisions and all Necessary Forms. BY WADE. H.AELEIS, LED. SEVENTH EDITION BY EDGAR L. WEINLAND Of: che Columbas Bar ¢ 2 CINCINNATI THE W. H. ANDERSON COMPANY 1924 COPYRIGHT 1903 THE W. H. ANDERSON CO. CincinnatTI, O. COPYRIGHT 1905 THE W. H. ANDERSON CO. CINCINNATI, O. COPYRIGHT 1906 THE W. H. ANDERSON CO, CINCINNATI, O. COPYRIGHT 1909 THE W. H. ANDERSON CO. CINCINNATI, O. COPYRIGHT 1912 THE W. H. ANDERSON CO. CINCINNATI, O. COPYRIGHT i aa teat aa THEW. H.: ANBERSOW:CD. CINCINNATI, O. Pee ses ees ce COPYRIGHT 1924 THE W. H. ANDERSON Co. Cincinnatt, O. PREFACE TO THE SEVENTH EDITION Since the publication of the last edition of this work many amendments and supplements to the General Code, relating to municipalities, have been enacted by the Legislature. Like- wise a great many decisions have been rendered affecting the municipal law of Ohio. As in the last preceding edition, Part I embraces those sections of the General Code in Title XII, Part First, entitled “Municipal Corporations”; Part II consists of the laws relating to municipal corporations, but not contained in Title XII, Part First, arranged according to the subjects to which they relate, and as far as possible in the order in which such subjects are treated in Part I. Part III contains those provisions of the Constitution which relate directly to municipalities, with special reference to the provisions for ‘“Home Rule’’. The forms and orders of procedure have been revised and new forms added, particular attention being given to those relating to the adoption of special charters. References to the opinions of the Attorney General have also been added to the annotations. Epear L. WEINLAND. Columbus, Ohio, March 1, 1924. 258796 PREFACE TO THE FIRST EDITION (By Wave H. ELuts.) The purpose of this publication is to present in convenient form all the laws of Ohio affecting municipal corporations, to- gether with annotations of the decisions thereon, compiled to April 1st, 1908, and all forms of ordinances, resolutions and. procedure in conformity with the statutes as they exist since the enactment of the new municipal code. Part I. consists of the new code proper, and all sections of the Revised Statutes re-enacted by it, incorporated at the places where such statutes should appear if made a part of the code itself. The sections of the new code are double leaded and those of the old statutes are set in solid type. The sectional numbers at the top of each page in Part I. refer to the sec- tions of the new code. Part II. consists of all related statutes on the subject of municipal corporations not incorporated in the new code, nor expressly repealed by it. Many of these are doubtless repealed by implication; many others are unconstitutional, being of special application, but they are nevertheless contained herein in order that the entire body of statutes affecting the munici- palities of the state may be found together. The desirability of presenting this work for such service as it may render to the new city and village officials and to the bar of the state, at or before the time when the new municipal code goes into effect, has necessitated much haste in its preparation, and this fact is relied upon to secure a pardon for errors and imperfections. In compiling this work the editor has been assisted by Mr. Ellis G. Kinkead and Mr. Challen B. Ellis, of the Cincinnati bar. ABBREVIATIONS. LBL = Sires GOmea ieEEL AG irae Weekly Law Bulletin, Ohio Law Bulletin ete etnias Oras Ohio Circuit Court Reports. EAS a1 ES ES Ra Ohio Circuit Court Reports (New Series) BEDE ela re? Senn. ML eee. Ohio Circuit Decisions. DOV i crn eer cet Pen ss Cleveland Law Reporter. eee Mr tile So kh Cincinnati Superior Court Reporter. EUR Oe ORE Sees eee es Disney’s Cincinnati Superior Court Reports. DAY tON: 40-0 54s ve BARR Dayton Term Reports Digested. Ce BSG ST a ea Ohio Decisions Nisi Prius. LD Eres ah 4 ESS Pret a ee Ohio Decisions (Reprint). ON on eae ie einer acr yt Se Federal Reporter. ERP Sa td) OPI OT. Handy’s Cincinnati Superior Court Reports. yl SS Re Anat cone ae ia Weekly Law Gazette. ES Se ee ey aoe Goebel’s Probate Reports. Oe er Ss pss 2 a ave ee Ohio Nisi Prius Reports. Be (IN Seyret Ohio Nisi Prius Reports (New Series). A SY ERIE OO Ohio Reports. Ont Oh VAs ee earn Ohio Courts of Appeals. if CROSSE eee eee ee Ohio Circuit Decisions. Oh. App..................Ohio Appellate Reports. (6 via) 21D ican a a a Ohio Federal Decisions. OO) SUR RRR re ae Ohio Law Reporter. (1: an a eee cae ee Ohio State Reports. ich "Ori haga eam nan Ohio Supreme Court Decisions, Unreported. DRO Reman crete a ciclo: susie American Law Record. WHPPANS 2 ures cate cae Tappan’s Reports. 1 )3.01 1 rs, Sasa ae ea United States Reports. Wedd el aig 08s di'n'y um: ae oe Western Law Journal. SER NL aorta gah enasein aot ais Western Law Monthly. Ue ie A i aR ae ge Wright’s Ohio Supreme Court Reports. TABLE OF CONTENTS. Pai © | THE MUNICIPAL CODE Containing all sections of Title XII, Part First, of the General Code. PAGE DIVISION 1. CLASSIRICATION: AND UCRBAILION core sten tienen 1 GuAprER 1. “ClaSSifiGatiOn : oi sits.0i6 a) easier acais lke eoteioialokere tame eats 1 Optional plans of government.................-; 16 MAO DEIGIMVOL PDLAI A > tints ore cero cr enste ote eae eth wager ol eames 16 HBlection PRO VASLOMS Hyerachcca ete ne Poin o «arale ae oe eee 19 Commission span, «vice 3:0 pects: itm = atmos cana wes 21 City” MaANaSer MPLA). ace. asc neyanerstsio-s antares’ ars ip wememeyee 23 Pederaloep lan teehee. ce rons sicterete tata te eter eee 27 General’= prowmislOnse® acatrisss >.’ Sars i arta 33 Initiative, referendum, recall.............-..+-- 43 G@HAPTER2. Incorporation <> soieu.-. os areeisiexter? wie ere everest 46 Cuapter 8. Annexatidn and detachment of territory..... 5 Xone a Annexation on application of citizens............ 67 Annexation on application of corporation. ..... (3 Annexation of one corporation to another. ..... 76 Detachment-£LOm COrpOravions. sais. state sneer 85 OHAPTmR<4> “Plato ve 1. ecreie sc coneteels -otevetnpann Wieuep els “ape ot 9 neat ees 92 Original aplatseeent Fee ty. Wee. vero cuqelc cetera ees 92 Vacating platsicc wipe sete o clede.< ie,* «etn ome eens 99 Revision of Plates. o>. epg wea os Oe 102 Lost or destroyed records........-..........<.. 104 DIVISIONAIL - GENBRAL” POW BHRSE sicetscciclek o's 210: ale ss create tuna 106 CHAPTER 1. Enumeration of POWEYIS.........-+ +. see eeeeeeeees 106 Municipal service. .......eeceee eres eee cr eee ewee 109 Streets and: Parks irtocecr cents oie ss cone terete 115 Buildings and constructions. ...........+++.++-- 123 Docks, landing and ferrieS.......-.++++s:s.seee 127 Fran Chises in cacscietanaiwie scgveansucysyetaus sisieks a odes vw'cls suc ois 386 SLAC Well hee All Chae ee UL CLODN w aivesnaernel eo gh cusTevbieoxdun sions 400 OWT eva a etcce es totehare cinta a. Coonale lod dinrone sca ae ar cnenonn cress tea 415 Collection: Gf -ASSGSSmMentSc.. 3 aon cuees os ice ack ee 433 CRAPTER Os eBOLTO WIN Sc MOTO Yio, corked ctv ais oreke Slee o dust Riots 6S oes ~-» 449 ; Bonds. for specificapurposess<%.. 4.1......1.. AReIAR 466 DiwestON Ty.- INSTITUTIONS AND “UTIEIEINS hice. cae ose 487 @RAPTEn Ay - Waterworks: soe 26 fede edi ci Aces OC WEEE s wes SETTERS 487 CHAPTER 2. Gas) xwaterwand ‘electricity 5. .s ccay oss ts bee oe 499 EU PECME ULE LLL GL OS Wie cas ssmisa ie tatters cae iens canvas la an, 515 CHAPINR. 3. Universitics*andlibrariese:s .22 22% ties 488 ne teen 533 Universities - «iNet 20... 1200 aae beeen ee 533 PsP PATICH a's 5 Ho 8 ot Fox dar aer chix osc TP EIR were nkae swale dhe ehele 534 PRAT YSN SP LITT ice etre dicts mr tleiete ok ote cena cae 539 LEMOVET Ve HASSOCTAUIONS sc. acc swe ccyecteenw © carte tenes 540 ALE MAM ORICS eet ont loneoieere sear Casa aie eats ne 541 WresP TIEN are TOSDIUAIS 12 te acc Sark avdblenc econ kakisMiois sone ce brass 542 Manieipalhospitals....<2 6.22 otecceeen tek nee 542 Trustees: of. hospital fundstv.uennn: ee MBPT 547 CHAPTERS MOE ATI ooo oe eto ee ee ee 2 Sees, Jcmaloe aba cae 552 PORicrCOMIMISSTIONGTS .).\2 «0:00 aplecteesie cco mevnan sae 552 MRUSICOS OLapark:. TUNG «0s. wcuemene cmrereeaikies 6.5 558 Cian umbeo. CUMATEDS wNOMECR a 208. «.< .sccsises aieww ete uae nuk 564 Ce ee PIS IMGTiE® , .. . Aguelticn. dois as meee oy: 0 kb cheocc ca cae 566 Casrrre 8. Reformatory institutions. ..c. oc ein aes cee ceceaceus 569 HOUsessol LOLIe Ge ae com crwnemmel es. sk ck eel cele 569 PElsOncuangeg arion NOMSES ceutwcg ac cons ase aca aloes 576 URN C LYON IS OC ere son cu Meme cue re nce Rs rk 517 TROME OU SMR OI COS anew ee ee ea 588 OS Git RT ES 7 1 Rp 589 Wonreremes fOM CILIGS scr «bsmewwkhs Pos ke kiccs oclelees 591 COMOLGMIGS TObnVillAPeSat. set tseckle 5 oe cla eS uoa ss ee e's 595 DM OMEEOEINOLOTIOS Gs craida tis fare eahls > «0 vics secvivelee ee 598 CATO IG Stats dath rarciitnst oP ltt uated Eboric.avid'<.io, «a. os age cle viene 604 CHAPTER 10, Municipal pawn department...................5 606 vi CONTENTS. PAGE DEVISION V: ORGANIZATION? <..:.j0' Gee eee ee Cee eee 615 CGIitIES. cA Eick Sots oo ieee ind ee re oc eee 615 OrezaniZationy exc... Sate eee. ele eer 615 POWETR! o-csers tors 9 desieie, allele, eek apse toe, ae eee 620 ViTIA SOS" oc os cccraclstenepece ict gsicteneloneustiae oraotelal ters terstanate 627 OFPSARIZATION carci orang wacdseeerae se iets eer 627 POWER: oe ete stee cee. « nis e aioe mar ebeerette Relate atone 628 Contracts oxen Sars ae re oe eee ee ee terete eras 630 Cities-and villaBes ro etre aces exe's ore eats oteheaia 632 OFdGINANCES 2s Sone 8 ae ete ey hal a te alone eAarete eae 632 Powers and duties ee Berets he Re ahem es 656 SUBDIVISION LL. HOXCCULIVG. se ee 792 Sanitary plant....... csc cece eee rece cee eeee 795 OPAPP TaD OL VA SCT VLCC cecnlecs: a sree. so cre gertiiar seco roagiink ote. S10) ora eueayis or se 799 CuaprTer 13. Trustees of the sinking fund..................+- 800 Gitieswand villagesia f.: scineaasan - que nde. = «5 800 Chibi Osu tertncnbs ear ederr tre ho meidnrra tenets sks « 807 PaxecGOMM1SS LON At « Sate see tre atene ~ehencer tay c+. 6.3) 807 SWRHLVESTO NG Rie et CLa Le met atetenetiteterestetatehere ate to ttetaliete tetetetePetetnce ts = tears 809 CHAPTER Glan 817 CHAPTER QPoOlice .COUrtSAcestns.-c0m-a die rope Te eteonrene Saar wR 3 < 825 CUAPTER, o. (Clerk .Of - POlIGEMCOUNE. S1Au falta ta. lakes olen es + we 835 DIVAS LON -V Ime MISCHUGAN DOU Ses... cre cecsmataieie «as sees ee ge sls. 6 9s 838 CAPT Dw mae CIS TOs PUNO Sinc . tare ete +c loi eeet nt ies ciece Gteuecceleam< «cetera 838 Cities andy i aM CR os pice sr Pee each oo Satan oar sore 838 PUMOMTON IS GIST OMe LUIMG. se snetvgeis sis a aieleleterece ace -< 838 POLICAPTOLICL CUNO Cok. co eters she Fates SAE ete yee 8 843 Sanitary. police, pension funds . Siren... 848 Miremen’s. indemnity .-fund.....ue oer a. . 2 852 GHAP TR POMP IGM DIINO INES cc. ciccete crepiters ence sr sals ects te gg a eee 6 856 Cities and villages..... “aca op BICMOS Re Ree IIe 856 CHAPTER EO Me GONOLaly PEOMISIONS st acre cic sisups ss career ta peaes sve 3 863 @itiogman Gem LA SOs cogs eta sickes stage ekesepens + 863 SIO VISLUR TIO Mme sete Weer tt, os coder ak 863 Oficial oath and WONG scr. 6 eA Deets te <2 863 MISCONUUCL. in - OMGE sno ood ore PU rer eee ce cae 870 PU PUCALIONO fot. cetera. ace e ee RR. ce eae 872 Interpretation -of this -titla Toon. eee eee 872 vili CONTENTS. PART - II. RELATED STATUTES Not contained in Title XII, Part First, of the General Code. PAGE STREETS, AND PUBLIC! GROUNDSteihie..- 2-2... - eee 877 County . bridges in” muni¢ipalitieses.- set. ...- . enc sos 877 Township ,roads. partly. Iinamtunicipalitysis.... 2.3... 2. 880 County roads-partlyin municipality. a.- se 4 ote 880 Labor of prisoners on roads and streets................. 891 National roads partly inemunicipality.... .a«.. aioe. ne ee 892 Roads and bridges of private corporations............... 893 Turnpike companies: peeanenit. te. Wense a. see ca oe 893 Bridge seOnEpaAWteseag : Cetae ALGe POOR AG Areas oe ee ere 895 AVENUE. COM PATIICS org sais seer a SOMES Wi iarcie notes, ee 896 Road. LOpaitslxc SON. AROS RINGNL 3s ont eet 897 Distribution> of. roadttemet . Ste reees os. . oe 897 Traffic regulations. +. MaMa. AN eile theese ols = tos ae. na trae 897 County. ditches-in .municilpality. eerste oe cow wn eee 902 Joint sewers and sewage disposal works................. 902 Telegraph and telephone companies....................- 906 Sewerage: -companiesssee Fie 205. ie. PER. . A ee 910 Adverse: possession: of Streets tt. fats tiie. 6. oe wclenee ce 912 Obstructions, disturbances, etc., in streets................ 912 Animals: ‘running: at- larger errs. Coa. oss atrerem aa Sine wie 915 Miscellaneous) .sicx . Gin cleW aie om sins Se) Gast SSP peel 917 Streets on Stabe La GS acters ete avine ee epe eye Inet tee ee a 917 Motor vehicles: ccnict. tee ees oe tients cinta arate eee teresa 917 Motor busses’ >: Bers eh et eee ee 919 Canal tow Dat ee eae ata ce sata es tere a elaine haat teaming 921 Conveyance of property to board of education......... 921 Il. STREET RAILROADS IN MUNICIPAL LIMITS........... 922 Street. and interurban -railroadsies.i6.ac5i). <0 Eeitaeee 922 Inclined: plane TAIPOa ds at ee ete cn. alone mints eras ates eae eee 940 Blevated railroads. ....... «mswewsce a. s Gaba aees «> ter. eereeae 941 IOUT: — ono core a sese oie iaretce "a acne ign s dette aa” taacn. « Seen cote aie aun 946 Terminal‘ AEPOUs os ae «cn 5s eaeaemia mts « sree oo sialon s lees eiemea 1226 Dance halls. ..’c<2 tek biliat eclebst ok te voles wlels manuee opramane c's 1227 Flags of buildings. ........ceeeeceeeeeeeerer eee reecceces 1228 Initiative and referenduM..........e eee e eee e eet ee eeeees 1228 Junk GeAlers. .os<0-00 0.5.02. 0Bl eine Shin's -'bSlaleWe » Piaiely o/e eis 1229 Market house COMPANIES. ..... eee eee e cere rere rece eeecee 1231 fuseum and park companieS..........sesse eee eee reeees 1233 Peddlers and itinerant vendors.......--+eee sere eeeeeeees 1233 TOW. 6. icor.s ovsie a eoaie sa We 'iee 00k 6 Won's poy Gam Mage #000 se 1235 Voting on submitted question.........+sseeeeeceseereees 1236 PART III. CONSTITUTIONAL PROVISIONS Relating to Municipal Corporations, Home Rule, Forms and Order of Procedure. Constitutional provisions relating to municipalities...... 1239 Flome’ Rule “seen as ese see cates wep tee ee s+ een eee 1248 Order of procedure for adoption of CHATUEIS sta see ay ae 1257 PORTIS orcs eee eeaititie crokeone ae ere ere sence: Scale au shen ets Eaey crea wecatrehs 1258 WEINLAND’S EDITION OF ELLIS’ ANNOTATED OHIO MUNICIPAL CODE. Pee Lek, TEE MUNICIPAL CODE CONTAINING ALL SECTIONS OF TITLE XII, PART FIRST, OF THE GENERAL CODE. ase ro ae 00° JASE e's nena iti Lita. Be 4 QiTIT JO #4 a + RIO JAHRE THE MUNICIPAL CODE. DIVISION I. CLASSIFICATION AND CREATION. CHAPTER 1. CLASSIFICATION. Sec. 3497. [Classification.]* Municipal corporations, which at the last federal census, had a population of five thousand or more, shall be cities. be villages. All other municipal corporations shall Cities, which, at any future federal census, have a population of less than five thousand shall become villages. Villages, which at any future federal census, have a population of five thousand or more, shall become cities.” (1) Constitutional provisions.—The provisions of the eighteenth article of the Constitution as amended in September, 1912, continue in force the general laws for the government of cities and villages until the 15th day of November following and thereafter until changed in one of the three modes following: (1) By the enactment of general laws for their amendment, (2) by additional laws to be ratified by the electors of the municipality to be affected thereby, (3) by the adoption of a charter by the electors of a munici- pality in the mode pointed out in the article. State ex rel. v. Lynch, 88 ON ere Sec. 1, Art. XVIII of the Consti- tution, as to classification of munici- pal corporations, is not self-executing and the provisions of Sec. 3497 gov- ern its execution. Murray v. State, 91 0.8. 220. [96 v. 20, §1.] (2) Old and new section num- bers.—Before the enactment of the Municipal Code of 1902, the laws relating to municipal corporations, including the various special gov- ernmental acts, were incorporated in Part First, Title XII, of the Revised Statutes, (§§ 1536 to 2729- 11, inclusive). In the act embody- ing the Municipal Code of 1902, (96 Ohio Laws 20-106), most of these sections were repealed and there were substituted for them the sec- tions of the Municipal Code num- bered from 1 to 231. A large num- ber of sections in the former Title XII, however, were not repealed, nor were corresponding sections of the new code substituted, but, in- stead, the sections thus left unre- pealed were incorporated into the new code by reference, which:specifi- cally retained such sections in force. A few unimportant sections in former § 3497 Title XII, mostly inconsistent with the code provisions, were neither repealed nor incorporated by refer- ence. Amendments to the Municipal Code were made from time to time, either by amending particular sec- tions of the act of 1902, or by amend- ing the sections of the Revised Stat- utes incorporated by reference in the act of 1902. Prior to the enactment of the present General Code, therefore, the Municipal Code proper consisted of the 231 sections of the act of 1902 with their amendments and supple- ments and those sections of the Revised Statutes which had been specifically retained in force by that act. In the early editions of this work, Part I, entitled ‘‘The New Code Proper,” consisted of all the Municipal Code sections and all see- tions of the Revised Statutes specifi- cally re-enacted by that code, in- eorporated at the places where such statutes should appear if made a part of the act itself. In the edition of Bates’ Revised Statutes, issued subsequent to the act of 1902, the Municipal Code sec- tions, with all sections of former Title XII, which had not been re- pealed by the new code, (and the amendments and supplements to both), were renumbered by the edi- tor and designated as §§1536-1 to 1536-1008, inclusive. In the decisions of the courts where the code or its re-enacted sections are considered, the sections cited are referred to sometimes by the number of the code section or the number of the re-enacted sec- tion of the Revised Statutes, and sometimes by the new number given THE OHIO MUNICIPAL CODE. 2 by the editor of Bates’ Revised Stat- utes, In the General Code, the laws relating directly to municipal cor- porations form Title XII of Part First and consist of §§ 3497 to 4678, inclusive. These sections embrace practically all the provisions of the 231 sections of the Municipal Code with their amendments and supple- ments, and such provisions of the Revised Statutes re-enacted in the Municipal Code as were contained in Title XII of the Revised Statutes and not repealed by the code, to- gether with such other provisions directly relating to municipal corpo- rations, though not formerly con- tained in Title XII or the Muni- cipal Code, which the Codifying Commission considered should be grouped under the title “Municipal Corporations.” In the present edition of this work, Part I consists of those sec-. tions of the General Code (with all amendments) which are contained in Title XII, G. C. There is indicated at the end of each section the former statute, the provisions of which have been sub- stantially embodied in the General Code section. Where the previous provision was contained in a section of the Revised Statutes, this is in- dicated by the number and the let- ters “R. S.;” where the former pro- vision was contained in a section of the Municipal Code, this is indi- cated by a reference to the page and section of the act in 96 Ohio Laws, (the original Municipal Code) and if the Municipal Code section was subsequently amended or sup- plemented, this is indicated also by a reference to the page and number of the volume of the laws subsequent to 3 CLASSIFICATION, that of the session of 1902, where such amendment or supplement was made. In the case of those sections of the General Code which embody provisions of former Municipal Code sections, there are further indicated, in notes, the old repealed statutes from which the Municipal Code sec- tions were themselves taken. Title-——The act of October 22, 1902, was entitled “An act to pro- vide for the organization of cities and incorporated villages, and to re- strict their power of taxation, as- sessment, borrowing money, con- tracting debts, and loaning their credit, so as to prevent the abuse of such powers, as required by the Con- stitution of Ohio, and to repeal all sections of the Revised Statutes in- consistent herewith.” This title adopted the language of § 6, Art. 13, Const. of Ohio. In Parsons v, Co- lumbus, 50 O. S., 460, it is held that the duty imposed by this section of the Constitution with respect to re- strictions upon municipalities is ad- dressed to the conscience and judg- ment of the legislature, and is not the subject of judicial correction. Title as aid in construction.—The title of an act may be considered to explain its object and remove am- biguities. Burgett v. Burgett, 1 O. 469, 480; Steamboat Monarch v. Finley, 10 O. 384, 387; State v. G. A. Society, 11 0. 1, 10; L. B. So- ciety v. Lewis, 7 O., 1st part, 80, 86; Hogg v. Zanesville C. & M. Co., 5 QO. 410, 415; Burgunder v. Weil, 60 O, S. 234, 242; Hall v. Siegrist, 13 Dec. 46; State v. Muhlhern, 74 O. 8. 363, Validity of Act.—The municipal code of 1902 was held to be consti- tutional and to have been properly and regularly passed in Zumstein, a § 3497 taxpayer on behalf of the City of Cincinnati vy, Mullen e¢ al., 48 B.,, E7367 ‘OL. 84382. Validity of Sec. 3497.—This sec- tion is not in conflict with Sec. 1 of Art. XVIII of the Constitution, but provides the method of transition thereunder. Murray v. State, 91 O. S. 220. Classification.—Present and for- mer.—The division of all municipal corporations into cities and villages marked a new departure in the mu- nicipal law of Ohio, under the Con- stitution of 1851. The Municipal Code of 1852 (50 O, L. 223-237) divided municipal corporations into four classes, viz., cities of the first class, cities of the second class, in- corporated villages and incorporated villages for special purposes. The Municipal Code of 1869 (66 O. L. 149) provided the same classifica- tion as that of 1852. The establish- ment of grades within the two classes of cities, the division of grades into first, second, third, etc., and the subdivision of particular grades have been matters of gradual growth. The most recent statute governing classification, previous to the enactment of the new code, was passed in 1898 (§ 1546 R. S., 93 O. L. 601) and divided municipal cor- porations into 14 classes, viz., cities, villages and hamlets; cities being divided into two classes first and second, the first class being divided into three grades, first, second and third, with provision for a future fourth; and the second class into eight grades, first, second, third, third a, third b, third e, fourth and fourth a. Villages had previously been divided into a first and second class (§ 1549 R, S., 89 O. L. 302.) There were never any towns in Ohio, § 3497 established by the legislature under the Const. of 1851, although § 30 of Art, II and § 6 of Art. VIII rec- ognize a class of municipal corpora- tions to be so designated. Decisions on classification.—Until the decisions of June, 1902, which brought about the extraordinary ses- sion of the Ohio legislature and the enactment of the new Municipal Code, the Supreme Court had uni- formly upheld the classification of cities for purposes of organization and distribution of powers. State ex, rel. Atty. Gen. v. Covington, 29 O. 8S. 102; State v. Brewster, 39 O. S. 653; State v. Pugh, 43 O. S. 98; State ex. rel. v. Hawkins, 44 0. S. 98; State ex rel. v. Hudson, 44 O. S. 137; Marmet v. State, 45 O. S. 63; State ex rel. v. Cincinnati, 52 O. S. 419; State ex rel. v. Rattermann, 58 O. S. 731. Acts relating to par- ticular grades and classes of cities were, when attacked on constitu- tional grounds, subjected to the re- quirements of § 26 of Art. 2, ordain- ing that all laws of a general nature shall have uniform operation throughout the state, and § 1 of Art. 13, forbidding the General As- sembly to pass any special act con- ferring corporate powers. If the subject matter of an act was one of general interest and concern, and the act was restricted in operation to a class or grade of cities it was void. Cincinnati v. Steinkamp, 54 O. 8. 284; State ex rel. v. Ketter, 45 B. 443; State ex rel. v. Cowles, 64 O, S. 162. Even though an act conferred corporate power, however, and was special in the sense that it operated in but one city of the state, it was upheld if it operated uni- formly within the grade and class to which it was made to apply. State THE OHIO MUNICIPAL CODE. 4 ex rel. v. Baker, 55 O. S. 1; Alter v. Cincinnati, 56 O. S. 47; State v. Toledo, 48 O. S. 112; State ex rel. v. Cowles, 64 O. S. 162. But the classification was required to be reasonabie and not illusory or arbi- trary. Costello v. Wyoming, 49 O. S. 202; Bronson vy. Oberlin, 41 O, S, 476. The later decisions, preceding those in the Cleveland and Toledo cases in June, 1902, discredited the doctrine of classification for any pur- pose by refusing to extend it, and prepared the way for its final over- throw. Geier v. Cincinnati, 63 O. S. 568; Cincinnati v. Trustees of Hospital, 66 O. 8. 440; Cincinnati v. Willen, 66 O. S. 633; State ex rel. v. Cowles, supra. In the Cleveland and Toledo cases (State ex rel. Atty. Gen. v. Beacom, 66 O. S. 491, and State ex rel. Knisely v. Jones, 66 O. S. 453) the acts in controversy provided a different organization or agency for exercising municipal powers in the one city from that provided elsewhere in the state. Similar acts had been upheld in earlier cases cited above. But the court now declared that classifica- tion as it had developed in Ohio, had become and had ceased to have any basis in differ- ences of population or local require- and refused to recognize as effectual to “isolation,” ments, such classification designate recipients of municipal powers, whether in the strict sense such powers are governmental or corporate. It seems unquestionable that the effect of these decisions is to hold unconstitutional for any and all purposes the classification of municipalities in this state as the same was in force immediately prior to the passage of the Code of 1902. 5 CLASSIFICATION. Classification no longer permissi- ble-——Whether the exclusive classi- fication of municipal corporations into cities and villages, provided for in § 3497, is the only one that would be permissible under the Constitution was not until recently expressly decided by the Supreme Court. In the Toledo case (66 O. S. 453), the court distinctly an-. nounces that the question whether the provisions of § 6, Art. XIII, of the Const. of Ohio, ordaining. that the legislature “shall provide for the organization of cities and vil- lages by general laws,” mean to pro- hibit any other classification, is not decided. The question was also left open in C. L. & A. Ry. Co. v. North Bend, 70 O. S. 46. The extraordi- nary session of the General Assem- bly, in 1902, adopted a resolution, submitting to the electors of Ohio, at the November election, 1903, a proposed amendment to the Consti- tution, which would have empow- ered the legislature to divide the cities of the state into three classes, based upon population (see 96 O. L. 117). This amendment was lost by a decisive vote. In the case of Elyria v. Vande- mark, 100 O. S. 365,the court held that the constitution, by Art. XVIII, Sec. 1, having classified municipali- ties on a basis of population, the legislature is without authority to make further classification thereof for the purpose of legislation affect- ing municipal government. In its opinion, the court says: ‘It is to be observed that the constitutional con- vention not only did not confer any power whatever upon the legislature to make any classification of munici- palities, but it denied the legislature such authority by retaining and ex- § 3497 ercising that jurisdiction itself. It thereby withheld that subject abso- lutely and entirely from legislative control and permitted it to be no longer a matter of statutory juris- diction.’’ Status of Hamlets—The munici- pal code of 1902 did not recognize hamlets except as it did not specifi- cally repeal those sections of the Revised Statutes relating to their creation, government and powers and except as § 100 of the Code re- enacted the ‘‘Longworth act,’’ as passed by the regular session of the 75th General Assembly, April 29, 1902, (95 O. L., 318), which then authorized the issue of bonds for public improvements by ‘‘cities, vil- lages, hamlets and_ townships.” Hamlets were included in former classifications. (§ 1546 R. S., 93 O.: L. 601, repealed.) They were recog- nized by the statutes as municipal corporations (§ 1550 R. S., repealed) and held to be such in Annexation of Newburgh, 15 C. C. 78, and State ex rel. v. Wagar, 19 C. C. 149, 151. Section 1549 R. 8., repealed by the Code, seems to have made hamlets of all municipal corporations having less than 200 inhabitants. The session of the legislature in 1906 amended the Longworth Act and left out all reference to ham- lets. On the other hand, the same session amended one of the sections relating to hamlets so as to make it conform to the act relating to street commissioners and road su- pervisors. But notwithstanding the amendment referred to and the fail- ure to repeal the hamlet statutes, it would seem that the new code abolished hamlets and made them villages instead. See C. L. and A. § 3497 St. Ry. Co. v. North Bend, 70:0. S. 46. In the General Code all the stat- utes relating to hamlets have been omitted. See as to status of ham- lets prior to code of 1902, Billington v. Hoverman, 18 C. C. 637; State ex rel. v. Wagar, 19 C. C. 149; annexa- tion of Newburgh, 15 C. C. 78; Carey v. State, 70 O. S. 121. Construction of Code.—‘‘A code of statutes relating to one subject is presumed to be governed by one spirit and policy and intended to be consistent and harmonious, and all of the several sections are to be con- sidered in order to arrive at the meaning of any part, unless a con- trary intent is clearly manifest.’’ Cincinnati v. Guckenberger, 60 O. S. 353. Effect of Codification and Revi- sion.—The revision of all statutes on a particular subject presumably does not change the construction of the original, although the language has been changed. State ex rel. v. Shelby Co., 36 O. S. 326; Allen v. Russell, 39 O. S. 336; State ex rei. v. Auditor, 43 O. 8. 311, 315; State ex rel. v. Stockley, 45 O. 8S. 304, 308. But a clause added in a revision which qualifies the former opera- tion of astatute must be given effect. Collins v. Millen, 57 O. S. 289. See also Giffin v. Brooks, 3 C. C. 110. Mere change in phraseology in a revision does not change former con- struction unless evidently intended. Ash v. Ash, 9 O. S. 383; Tyler v. Winslow, 15 O. 8. 364, 368; Hamil- TON ve stot. Rh. De. Namilton) 16 O. S. 429, 482; Stannard v. \Case, 40 O. S. 211, 214; Conger v. Barker, 11 O. S. 1; Boley v. Ohio L. Ins. and Trust Co., 12 O. S. 139, 144; Dutoit v. Doyle, 16 O. S. 400, THE OHIO MUNICIPAL CODE. 6 405; Brower v. Hunt, 18 O. 8. 311, 338. Former law invoked to remove doubt.—State ex rel. v. Brewster, 44 O. S. 249, 252; Heck v. State, 44 O, 8S. 536, 538, Repeals by implication—Where a law revises the entire subject matter of a former act and is evidently a substitute for it, the earlier act must be regarded as repealed by implication. Shelby Co. v. Frego, 26 O. S. 488, 491; Lorain Plank Road v. Cotton, 12 O. S, 263; Moore v. Vance, 1 O. 1, 10. And where a later statute flatly contradicts an earlier one, the ear- lier one is repealed by implication. Work v. Massie, 6 O. 503. But where the two statutes can well stand together there can be no repeal by implication. See State v. Davis, 23 O. S. 434. De facto governments of mu- nicipalities prior to first Monday in May, 1903, see Citizens’ Light & Heat Co. v. Springfield, 47 B, 710; Friedman v. Cincinnati, 13 Dec. 404; Columbus v. Federal Gas & Fuel Co., 14 Dec. 261 (aff’d Cir. Ct. Mch. 20, 1904). Muncipal corporations not re= created.—The Code of 1852 was held not to have annihilated and re- created pre-existing municipal cor- porations of the State, but to have re-organized and continued them, leaving their corporate identity un- affected. Fosdick v. Perrysburg, 14 0. S. 472. Under the present constitution the legislature can neither create a corporation by special act nor con- fer additional corporate power by special act on those already existing any more than it can do these things in respect to private corporations. ih CLASSIFICATION. State v. Cincinnati, 20 O. S, 18; State v. Cincinnati, 23 O. S, 4465; State v. Mitchell, 31 O. S. 592. Ordinances continuing in force—The Municipal Code of 1902 contained the provision that “all by- laws, ordinances and_ resolutions heretofore lawfully passed or adopted by the council, board of legislation or other legislative body ‘in any municipal corporation, and not inconsistent with this act, shall remain in force until duly altered or repealed.” Only such ordinances in force at the time of the adoption of the Mu- nicipal Code of 1902, would con- tinue in force, as, if passed under the code, would be authorized by its provisions. See Neff v. Bates, 25 O. S. 169; Hubbard v, Norton, 28 O. S. 116. On the other hand, an ordinance formerly passed but not authorized by the laws then in force would not be valid, even though authorized by the new code, notwithstanding the provision in the Municipal Code con- tinuing in force all former ordi- Sec. 3498. state. | + § 3498 inconsistent with the Cotter v. Doty, 5 O. 393, nances not new code. 398. An ordinance that was unconsti- tutional would, of course, not be continued in force. See Zanesville v. Auditor, 5 O. S. 589, An ordinance fixing a_ salary would continue in force, if the au- thority passing the ordinance has the power under the code and the salary does not exceed the maximum therein provided. even though the law under which the ordinance was passed is repealed by the Code. Moore vy. Cincinnati, 26 O. 8. 582. An ordinance providing for the annexation of contiguous territory, not inconsistent with the new code, was held to continue in force, under a provision such as that in the above section. Croll v. Franklin, 40 O. 8. 340. Judicial notice.—The courts take judicial notice of the statutory law of the state and of the population of its cities. DeMuth v. State ex rel., 27 OF CY ASS85s+7 One App. 245; aff’d. 96 O. S. 519. [Population, proclamation of by secretary of When the result of any future federal census is off- cially made known to the secretary of state, he forthwith shall issue a proclamation, stating the names of all municipal cor- porations having a population of five thousand or more, and the names of all municipal corporations having a population of less than five thousand, together with the population of all such corporations. A copy of the proclamation shall forth- with be sent to the mayor of each municipal corporation, which copy shall be forthwith transmitted to council, read therein and made a part of the records thereof. From and after thirty days after the issuance of such proclamation each muni- cipal corporation shall be a city or village, in accordance with the provisions of this title. [96 v. 20, § 2.] § 3499 (1) Old Sections.—Compare §§ 1617-1622 R. S., repealed, relating to the duties of certain state officers to determine what municipalities were to be advanced or reduced in grade or class. Validity and effect.—This section and §§ 3497 and 3499 are not incon- sistent with Sec. I, Art. XVIII, of the constitution, and their pro- visions regulate the method of tran- THE OHIO MUNICIPAL CODE. 8 sition from one class to the other. Murray v. State ex rel., 91 O. S. 220. A municipal corporation which had a population of less than five thousand at the last federal census did not advance to a city when it was made to appear by an official census taken by the municipal cor- poration subsequently thereto that it had a population of more than five thousand. Jb. Sec. 3499. [Officers of, when advanced or reduced.]* Of ficers of a village advanced to a city, or of a city reduced to a village, shall continue in office until sueceeded by the proper officers of the new corporation at the next regular election, and the ordinances thereof not inconsistent with the laws relating to the new corporation shall continue in force until changed or repealed.? [96 v. 20, § 2.] (1) Old Sections.—Compare §§ 1581 and 1588 R. S., repealed, relat- ing to officers continuing in office and ordinances remaining in force pending advancement of hamlets, villages and cities. Validity and effect.—This section and §§ 3497 and 3498 are not incon- sistent with Sec. I, Art. XVIII, of the constitution, and their provi- sions regulate the method of tran- sition from one class to the other. Murray v. State ex rel., 91 O. S. 220. (2) Officers holding over.— Where officer is authorized to hold his office after expiration of term until a successor qualifies, there is no vacancy during such period, and incumbent holding over is a de jure officer. State ex rel. v. Howe, 25 O. 8. 588. Where officer legally holds over until a successor qualifies, he holds on as of his old term. State ex rel. v. Killits, 8 C. C. 30. Whether sureties on officer’s bond can be held for such extended term, quere. Ib. Officer does not hold over unless a successor is provided for. McHugh v. Cincinnati, 1 C. 8S. C. R. 145. Officer removed for misconduct cannot hold over under law autho- rizing incumbent to continue in office until his successor is elected or ap- pointed. State ex rel. v. Hawkins, 44 O. S. 98, 117. Where a new code provided for one officer who was to perform the duties theretofore performed by three under the previous act, the office of the three was held abolished. McHugh vy. Cincinnati, 1 C. S. C. R. 145. 9 CLASSIFICATION. Where a new code created a new office, but made no provision for filling it, it was held there was a vacancy until the next annual elec- tion, and the person elected to the office held only until the next an- nual election. State ex rel. v. Cook, 20 O, S. 252, The constitutional provision against affecting the salary of an officer during his existing term, does not apply to an officer holding over until his successor is elected and qualified.. Woehler v. Toledo. & B. 282. Where an office is abolished by a new law, if the duties of the office were specific and limited and not continuous during the year, the an- nual salary must be apportioned, not by the time of service, but by the duties actually performed, and therefore may be wholly earned at the time of abolishment of the office. Ha parte Lawrence, 1 O. S. 481. Mandamus will not lie at the suit of one claiming succession to an of- fice unless the act under which he claims is valid, and this is true, al- though defendant’s title may also be invalid. State ex rel. v. Jones, 66 O, S. 453. Veto power of Mayor.—Upon ad- vancement of a village to a city as Sec. 3500. § 3500 provided by law, village officers become city officers and the mayor, in such case. has the power to veto. Wise v. Barberton, 20 C. C. (N.S8.), 390 (aff’d. 88 O. S. 595). Ordinances continuing’ in force.—Only such ordinances would continue in force, as, if passed under the new code, would be authorized by its provisions. See Neff v. Bates, 25 O. S. 169. On the other hand, an ordinance formerly passed but not authorized by the laws then in force would not be valid, even though authorized by the new laws, notwithstanding the provision continuing in force all former ordinances not inconsistent with the new laws. Cotter v. Doty, 5 O. 393, 398. An ordinance that was unconsti- tutional would, of course, not be continued in force. See Zanesville v. Auditor, 5 O, S. 590. Compensation of Councilmen.— Where there is no valid ordinance fixing the compensation of council- men, upon the induction into office of the first council elected after the advancement of a village to a city, such council can fix the compensa- tion of its own members. Wise v. Barberton, 20 C. C. (N. 8.) 390, (aff’d. 88 O. S. 595). [Reduction by action of citizens.] A city from which territory has been detached since the last federal census, may surrender its corporate rights as such city and be reduced to a village in the manner hereinafter specified. [99 v. 392 § 1.] Sec. 3501. [Petition, what to specify.] A petition for the purpose signed by at least one hundred citizens of the city shall be presented to the council setting forth that by reason of the detachment of territory the population of the city has been reduced to less than five thousand, that a majority of the citizens thereof desire to surrender its corporate rights and § 3502 THE OHIO MUNICIPAL CODE. 10 that it be reduced to a village, and containing a prayer that the council authorize the taking of a census in the city for the purpose of ascertaining its population. [99 v. 392 § 2.] Sec. 3502. [Resolution of council to take census.] Upon presentation of such petition, the council by resolution at its next regular meeting shall authorize the city auditor to cause a census of the city to be taken and report the result thereof to the city council. It shall be necessary to read the resolution but once and it shall be published as other resolutions of a general or permanent nature. [99 v. 393 § 3.] Sec. 3503. [Enumerators; appointment, oath and compen- sation.] Within five days from the time he is authorized to cause such census to be taken, the city auditor shall appoint five persons to take the enumeration, who shall each be allowed by the auditor out of his contingent fund three dollars per day as compensation for services. Each person so ap- pointed shall take an oath or affirmation to make such enumer- ation accurately and truly to the best of his skill and ability. For the purpose of taking such census, each enumerator shall be provided with a book in which he shall record correctly the name of each resident of the city with the name of the street and the number of the house in which he lives. [99 v. 393 § 4.] Sec. 3504. [Return of enumeration shall be certified. ] With the return of the enumeration to the auditor, each enumerator shall return the book containing the list of the names and addresses, and duly certify with his affidavit that he has taken and returned the census accurately and truly to the best of his knowledge and belief, and that such lists con- tain the names of all persons so enumerated and none others. The auditor of the city or any officer authorized to administer oaths may administer such oath or affirmation, and take and certify such affidavit. [99 v. 393, § 4.] Sec. 3505. [Resolution of surrender.] Within ten days from the date of their appointment, the enumerators shall com- plete the enumeration and return their books to the auditor, whereupon the auditor shall make an abstract of the enumera- 11 CLASSIFICATION. § 3506 tion and transmit it to the council at its next regular meeting after the report of the enumerators to the city auditor. If the result of the census shows that the population of such city is less than five thousand, the council by resolution shall declare the corporate rights of the city surrendered and that such city is reduced to a village. [99 v. 393, § 5.] Sec. 3506. [Procedure if council or auditor fail to act.] If the council fails to authorize the city auditor to take the census of such city, or the auditor fails to proceed under authority properly given, upon the presentation of a copy of such original petition of one hundred citizens to the com- missioners of the county in which the city is situated, the com- missioners shall forthwith appoint five enumerators resident electors of such city who shall perform all and singular the duties imposed upon enumerators appointed by the city auditor as hereinbefore provided, after having taken an oath or affir- mation to take the census of the city accurately and truly to the best of their skill and ability. [99 v. 3938, § 6.] Sec. 3507. [Transcript to be transmitted to council.] Within ten days from the date of their appointment, the enumerators provided for in the preceding section shall com- plete their work of enumerating and return their books duly verified to the county commissioners, whereupon the com- missioners shall canvass the result of the census so taken, and the county auditor shall make a transcript thereof and transmit a certified copy of such transcript to the council of the city for which the enumeration was taken. A copy of such transcript shall be spread upon the journal of the council and if the census so taken shows the population of such city to be less than five thousand, the council shall pass a resolution as herein provided and the city shall forthwith become a village. [99 v. 394, §7.] Sec. 3508. [Record of resolution; copy to secretary of state.] The auditor shall thereupon cause two certified tran- scripts of the resolution to be made, one of which shall forth- with be delivered to the recorder of the county in which the city is situated, who shall record it in the proper records in § 3509 THE OHIO MUNICIPAL CODE. 2 his office, and the auditor shall forward the other to the secretary of state. [99 v. 394, § 8.] Sec. 3509. [Effect of surrender of corporate rights.] The surrender of corporate rights as herein provided for shall not affect rights accrued or liabilities incurred by such city or the power to settle claims, dispose of property or levy and collect taxes to discharge liabilities incurred, but shall remain in force and effect as also the corporate character of such municipal corporation in respect thereto as though no surrender had been made. After the presentation of such petition, such city or the council thereof shall not incur or create any new debt or liability or enter into any new contract or increase the debts and liabilities of such city in any manner during the pendency thereof until the result of the census is declared, except that current expenses may be paid or provided for. [99 v. 394, § 9.] Sec. 3510. [Collection and disbursement of taxes.] Taxes which at the time of the surrender remained due and unpaid shall be collected and, with all moneys in the treasury of the city, shall be applied to the objects for which they were raised. Moneys which remain on hand after the debts and liabilities of the city are discharged shall be paid into the treasury of the village and all property owned by the city at the time of the surrender shall become the property of, and the title thereto vest in, the village. [99 v. 394, § 10.] Sec. 3511. [Payment of expenses incurred by the commis- sioners.] When such census is taken pursuant to the order of the board of county commissioners, the necessary expenses thereof shall be paid from the county treasury as other county expenses, but shall be charged against the municipal corpora- tion in which the census was taken and the amount so paid by the county shall be retained by the county auditor from funds due such municipal corporation at the time of making the next semi-annual distribution of taxes. [99 v. 394, §11.] Sec. 3512. [When boundaries of municipality become iden- tical with those of township.]* When the corporate limits of 13 CLASSIFICATION. § 3513 a city or village become identical with those of a township, all township offices shall be abolished, and the duties thereof shall thereafter be performed by the corresponding officers of the city or village, except that justices of the peace and con- stables shall continue the exercise of their functions under municipal ordinances providing offices, regulating the dispo- sition of their fees, their compensation, clerks and other officers and employes. Such justices and constables shall be elected at municipal elections. All property, moneys, credits, books, records and documents of such township shall be de- livered to the council of such city or village. All rights, interests or claims in favor of or against the township may be enforced by or against the corporation.’ (1) See old §§ 1623, 1625, 1627 R. S., repealed. (2) Extent of merger.—Under the act of March 7th, 1872, which contained a provision excepting jus- tices of the peace and constables from the operation of the merger law, similar to the one in the pres- ent section, it was held that the act preserved the corporate existence of such township for the sole purpose of electing justices of the peace and constables, evidently to meet the constitutional requirement that jus- tices of the peace shall be elected by townships, but that for all other purposes the township organization in this class of cities and villages was abolished. McGill v. State, 34 O: §, 228, 251. Effect of merger.—Under the former statutes it was held that where a township is merged into a city, the directors of a county in- firmary may maintain a suit against the corporation for the costs of tem- porary relief furnished a pauper; and such action may be prosecuted [96 v. 20, §3.] either in the county of plaintiff or directors or in that in which the city is situated. Directors, ete., v. Toledo, 15 O. S. 409. It was also held under the for- mer statutes that where the cor- porate limits of a city or village be- came identical with those of a town- ship and the office of township clerk was thereby abolished, the office of the clerk of such city or village became a depository for chattel mortgages. Curtiss v. McDougal, 26 O. S. 66. Municipality is part of town- ship.—Where the boundaries of a city are not coterminus with those of a township the territory within , such city does not cease to be part of the township or townships within the limits of which it is situated, for election purposes. State vy, Ward, 17 O.S, 543. Justice of the peace residing in territory annexed to city of Toledo may hold court therein. State ex rel. v. Morse, 94 O. S. 485. See also Op. Atty. Gen. (1919), p. 977. Sec, 3513. [How villages may surrender their corporate > § 3513 THE OHIO MUNICIPAL CODE. 14 powers.]! Villages may surrender their corporate powers © upon petition to council of at least forty per cent? of the electors thereof, to be determined by the number voting at the last municipal election, and an affirmative vote of a majority of such electors at a special election which shall be provided for by council, and conducted, canvassed, and the result certi- fied and made known as regular municipal elections within the corporation. If the result of the election is in favor of such surrender, the clerk of the village shall certify the result to the secretary of state and the recorder of the county, who shall record it in their respective offices, and thereupon the corporate powers of such village shall cease. (1) Old Sections.—See old sec- tions 1633-1647 R. S. inclusive, re- pealed. The sections (1633-1642 R. S.) allowing cities to surrender cor- porate powers and be reduced to villages, are repealed, without any corresponding provisions being made in the code. It is no longer op- tional with a municipality to be a city or village. Municipalities over 5,000 population at the last federal census, are necessarily cities, unless changed by the next federal census. But when cities have been reduced in size by detachment of territory, provision is now made for their re- duction to villages; see §§ 3500-3511 ante. (2) Number of Petitioners.— Under former law it was held that in mandamus in Common Pleas Court to compel the council of a village to order an election on the [96 v. 21, §4.] question of surrender of corporate powers, the issue of whether the requisite number had signed the petition was not one of right tri- able by a jury, and that either party might appeal to Circuit Court. Dutten v. Hanover, 42 O. S.. 215, It was held to be the duty of council before taking action upon such a petition to satisfy itself that the petition contained the requisite number of qualified petitioners, and for this purpose, council might refer the petition to a committee to make examination. Ib. Signers of such a petition might withdraw their names at any time before final action thereon by coun- cil, and if the number of names is reduced below the requisite amount, council must refuse to order an elec- tion. Ib. FORM OF PETITION TO COUNCIL FOR SURRENDER OF CORPORATE POWERS. To the Council of the Village of... Ae pa vAryi) , State of Ohio: The undersigned, being forty per cent. of the electors of the village of Pde iets , respectfully represent that it is their desire that the corporate powers of said village be surrendered, and that the said village become a part of the township organization within the territorial limits of which it is 15 CLASSIFICATION. § 3514 situated, and they therefore pray you to cause an election to be held in said village in the manner provided by law to determine the sense of the electors thereof upon that subject. (This petition must be signed by 40 per cent. of the electors of the village. ) FORM OF ORDINANCE ORDERING ELECTION, Ordmance: Nowg.o.t sane Ordering election on question of surrendering corporate powers. Be it ordained by the council of the village of.......... , State of Ohio: See. (1) That upon the...... ST Oda soles, as , 19...., there be held a special election in the village of........ s State OF Ohio,-at. oo... : (here in- sert place of holding election) by the qualified voters of said village to vote upon the question of surrendering the corporate powers of said village and of reducing said village to be a part of the township organization within the territorial limits of which it is situated. Sec. (2). The ballots cast at such election shall contain the words, “For Surrender” or “Against Surrender” and such election shall be held and conducted as regular municipal elections within the corporation. Sec, (3). This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed. this........ OEY) OE idee ois eon) eS Attest: President of Council. Rad 6) ee fel Sywiys Che 0 w Ula 6) b kel a) eo loye ype, « 6 fe Clerk. FORM OF CLERK’S CERTIFICATE. To the Honorable, the Secretary of State of the State of Ohio, [or Re- corder of ‘the county of.......... I: This is to certify that at a special election duly provided by the council and held in the viillage of.......... , State of Ohio, on the...... day of ee eka, ate ,19...., a majority of the asians of said village voted in favor of the surrender of the corporate powers of said village. Given under my hand and official seal, this..... GB OL an cot spk cuaeest OPS One Gre! Cl eribtateves ae Oisre ae ele Old: 0.00 B66) 6. CNR 4,0 (8 Le Sec. 3514. [Rights and liabilities not affected.] Such sur- render of corporate powers shall not affect vested rights or accrued liabilities of such village or the power to settle claims, dispose of property, or levy and collect taxes to pay existing obligations, but after the presentation of such petition, council shall not create any new liability until the result of the election § 3515 THE OHIO MUNICIPAL CODE. 16 is declared, nor thereafter, if such result is in favor of the surrender of corporate powers. Due and unpaid taxes may thereafter be collected, and all moneys or property remaining after such surrender shall belong to the school district em- bracing such village.* (1) Under former statutes it was held that officers of a municipality, after its corporate rights had been extinguished, cannot by resignation [96 v. 21, §4.] avoid the duty of levying and col lecting the taxes to pay its debts. Gorgas v. Blackburn, 14 O, 252. Sec. 3515. [Judicial notice of classification.] All courts shall take judicial notice of the classification of municipal corporations, and their advancement, reduction and surrender of powers.? [96 v. 21, § 4.] (1) Under the classification of cities which had obtained before the enactment of the Municipal Code of 1902, courts were not bound to take judicial notice of, the grades and OPTIONAL PLANS ARTICLE 1. Sec. 3515-1. §1. classes of municipal corporations, Bolton v. Cleveland, 35 O. S. 319; Massa v. State, 3 C. C. 9; but see State v. Constantine, 42 O. S, 437. OF GOVERNMENT. ADOPTION OF PLAN. [Petition for submission of question of organizing municipality under specific plan.] Whenever electors of any municipality, equal in number to ten per- centum of those who voted at the last regular municipal election, shall file a petition with the board of deputy state supervisors of elections or board of deputy state supervisors and inspectors of election, as the case may be, of the county in which such municipality is situated, asking that the ques- tion of organizing the municipality under any one of the plans of government provided in this act be submitted to the electors thereof, said board shall at once certify that fact to the council of the municipality and the council shall, within thirty days, provide for submitting such question at a spe- cial election to be held not less than sixty nor more than ninety days after the filing of such petition. Any such elec- tion shall be conducted in accordance with the general elec- tion laws of the state except as otherwise provided in this 17 CLASSIFICATION. § 3515-2 act and the council of any municipality holding such an elec- tion shall appropriate whatever money may be necessary for the proper conduct thereof. [103 v. 767, Art. I, §1.] [Sec. 3515-2.]1 §2. [Petition for submission of question of choosing commission to frame charter.] The proposition to adopt a plan of government provided in this act shall] not be submitted to the electors of any municipality less than ninety days before a regular municipal election. If in any municipality, a sufficient petition is filed, requiring that the question of choosing a commission to frame a charter be sub- mitted to the electors thereof, the proposition to adopt a plan of government provided in this act shall not be submitted in that municipality as long as the question of choosing such commission or adopting a charter framed thereby is pending therein. In any municipality while the proposition of adopt- ing any one of the three forms of government herein provided for is pending, then no other proposition herein provided for shall be submitted until said pending proposition is adopted or rejected. [103 v. 767, Art. I, § 2.] (1) Section numbering.—This and following sections are numbered in accordance with the plan adopted bered either by the Legislature or the Attorney General have been given sub-section numbers enclosed in Page & Adams General Code. in brackets. Those sections which were not num- [Sec. 3515-3.] §3. [Form of ballot in submitting question of organizing under plan.] In submitting the question of or- ganizing under any one of the plans of government provided in this act to the electors of any municipality the board of deputy state supervisors of elections or board of deputy state supervisors and inspectors of elections, as the case may be, shall cause to be printed on the ballots the following ques- tion, ‘‘Shall the (name and plan) plan of government, as pro- vided in chapter ...... section of the General Code of Ohio be adopted? Immediately following such question there shall be printed on the ballots the following proposi- tions in the order here set forth: ‘SHior the. adoption, of the (..< «ice ss'. Neplan “Against the adoption of the (............ ) plan.’ § 35154 THE OHIO MUNICIPAL CODE. 18 When the question is on the adoption of the federal plan of government there shall also be submitted the question, ‘Bor councilmen-at-large,’’ and ‘‘For councilmen-by-wards.”’ There shall also be printed on the ballots at any such elec- tion the following supplementary proposition: ‘‘HWor the adoption of the recall. ‘‘ Against the adoption of the recall. Immediately to the left of each of the propositions shall be placed a square in which the electors by making a cross (X) mark may vote for or against any such propositions. [Mailing copies of plan to electors; filing arguments for and against.] At least thirty days prior to any such election the deputy state supervisors of elections or board of deputy state supervisors and inspectors of elections, as the case may be, of the county shall mail a copy of the proposed plan of government and the supplementary propositions as specified in this act to each elector of the municipality whose name appears on the poll or registration books of the last regular general election, and each such copy shall contain on the front cover thereof a fac-simile ballot and the date and hours of the election. Any elector may, at least forty days prior to such election file, with said board a written argument of not more than three hundred words for or against any pro- posed plan of government or for or against any other propo- sition submitted and, upon payment of the cost of printing, said board shall cause the same to be printed and a copy thereof mailed with the copy of the proposed plan to each elector or otherwise distributed to every voter as far as prac- ticable. [103 v. 767, Art. I, § 3.] [Sec. 3515-4.] §4. [Result of adoption.] If, when sub- mitted in any municipality the proposition of adopting a plan of government provided in this act is approved by a majority of those voting thereon, such plan, together with any of the supplementary propositions that may have been approved by a majority of the electors voting thereon, shall become the charter of such municipality. When so adopted, this act shall go into effect immediately, in so far as it applies to the nomination and election of officers provided for herein and 19 CLASSIFICATION. § 3515-5 in all other respects it shall go into effect upon the first day of January following the next regular municipal election. All officers of any plan of government superseded by the adop- tion of any plan provided in this act, except members of the commission or council, shall continue in office and in the per- formance of their duties until the commission or council elected hereunder shall have provided by ordinances for the performance of the duties of such officers, whereupon the terms of all such officers shall expire and their offices be deemed abolished. [103 v. 767, Art. I, § 4.] [Sec. 3515-5.] §5. [Submission of supplementary proposi- tions.] In any municipality where a plan of government pro- vided in this act has been adopted any of the supplementary propositions, not previously adopted, may be independently submitted to the electors at any municipal election in the manner provided for submitting the question of adopting such plan of government. If the proposition to adopt a plan of government provided in this act is rejected by the electors of a municipality, it shall not again be submitted in that municipality within one year thereafter. [103 v. 767, Art. I, §9.] Sec. 3515-6. §6. [Board shall file certificate of results of election.] Immediately after an election upon the adop- tion of any plan of government or proposition provided herein the board of deputy state supervisors of elections or board of deputy state supervisors and inspectors of elections, as the case may be, of the county in which such election is held shall file with the secretary of state a certificate of the re- sults thereof. [103 v. 767, Art. I, § 6.] ARTICLE II. ELECTION PROVISIONS. [Sec. 3515-7.] §1. [Applicable to each plan.] The sec- tions of this article shall apply to and be a part of each of the plans of government provided in this act. [103 v. 767, Bre ule § 1] [Sec. 3515-8.] §2. [Nominations and elections.] .Regular municipal elections shall be held on the first Tuesday after § 3515-9 THE OHIO MUNICIPAL CODE. 20 the first Monday in November in the odd numbered years, and shall be conducted and the results canvassed and an- nounced by the regular election authorities. Candidates to be voted for at the regular municipal elections shall be nomi- nated as provided by law. [103 v. 767, Art. II, § 2.] [Sec. 3515-9.] §3. [Ballots.] The ballots used in ail elec- tions provided for in this act shall be without party marks or designations. The names of candidates on such ballots shall be printed in rotation as follows: The ballots shall be printed in as many series as there are candidates for the of- fice for which there is the greatest number of candidates. The whole number of ballots to be printed shall be divided by the number of series and the quotient so obtained shall be the number of ballots in each series. In printing the first series of ballots the names of candidates for each office shall be arranged in alphabetical order under the title thereof. After printing the first series the first name in each list of candidates for the various offices shall be placed last in such list and the next series printed, and the process shall be so repeated until each name in the largest list of candidates shall have been printed first an equal number of times. The ballots so printed shall then be combined in tablets, so as to have the fewest possible ballots having the same order of names printed thereon together in the same tablet. The bal- lots shall in all other respects conform as nearly as may be to the ballots prescribed by the general election laws of the state. [103 v. 767, Art. II, § 3.] [Sec. 3515-10.] §4. [Regular election.] The candidates at the regular municipal election, equal in number to the places to be filled in each office, who received the highest number of votes, shall be declared elected. In case it cannot be determined which of two or more candidates shall be de- elared elected, by reason of the fact that they have received the same number of votes, the election authorities shall de- termine by lot which of said candidates shall be declared elected. [103 v. 767, Art. IT, § 4.] 21 CLASSIFICATION. § 3515-11 ARTICLE III. COMMISSION PLAN. [Sec. 3515-11.] §1 [Form of government.] The form of - municipal government provided for in this article shall be known as the commission plan. In municipalities organized hereunder the only elective officers shall be the members of the municipal commission provided for in this act. Three commissioners shall be chosen in municipalities having not more than 10,000 inhabitants according to the last preceding federal census and five commissioners in all other municipali- ties. All such commissioners shall be elected from the munici- pality at large. [103 v. 767, Art. III, §1.] [Sec. 3515-12.] §2. [Election; term; vacancies.] At the first election held after the adoption of the commission plan the entire number of commissioners shall be chosen. In mu- nicipalities having three commissioners the candidate having the highest number of votes at such first election shall hold office for four years and the remaining commissioners for two years. In municipalities choosing five commissioners the two candidates receiving the highest number of votes at such first election shall serve for four years and the remaining commis- sioners for two years. At all subsequent elections except where a commissioner is chosen to fill out an unexpired term, commissioners shall be chosen for a term of four years. Va- cancies in the commission shall be filled by the commission for the remainder of the unexpired term. If the term of a commissioner whose place becomes vacant does not expire on the first day of January following the next regular mu- nicipal election, then such person chosen by the commis- sioners shall serve only until such regular election, at which time a commissioner shall be elected to fill the remainder of the unexpired term. When a vacancy occurs as the result of a recall election such vacancy shall be filled in the manner provided for such cases. [103 v. 767, Art. III, § 2.] [Sec, 3515-13.] §3. [Meetings of commission.] At ten o’clock a. m. on the first day of January following a regular municipal election the commission shall meet at the regular place for holding such meetings, at which time the newly elected commissioners shall assume the duties of their office. § 3515-14 THE OHIO MUNICIPAL CODE. 22 Thereafter the commission shall meet in legislative session at least twice each month and in administrative session at least once each week, at such times as may be prescribed by ordinance or resolution, but no legislative business shall be considered or acted upon at administrative sessions. Upon written request of the chairman or any two members special legislative sessions of the commission shall be called by the clerk. Any such request shall state the subjects to be con- sidered at such special meeting and no other subject shall be there considered. [103 v. 767, Art. III, § 3.] [Sec. 3515-14.] § 4. [Signing of ordinances.] Every ordi- nance or resolution passed by the commission shall be signed by the chairman or two members, filed with the clerk within two days and by him recorded. [103 v. 767, Art. IIT, § 4.] [Sec. 3515-15.] §5. [Powers of the commission.] The powers conferred upon municipalities by the constitution of Ohio, and any additional powers which have been or may be conferred upon municipalities by the general assembly, shall be exercised by the commission or under its direction, un- less the exercise of such powers shall have been expressly conferred upon some other authority of the municipality or reserved to the people thereof. [103 v. 767, Art. III, § 5.] [Sec. 3515-16.] §6. [Administrative officers.] The com- mission shall appoint a clerk, treasurer, auditor and solicitor ; but provision may be made by ordinance for the performance of the duties of clerk and treasurer by the same person. [103 wer, arte}: 6] [Sec. 3515-17.] §7. [Creation and discontinuance of of- fices.] Subject to the provisions of this act the commission shall have authority to create and discontinue departments, offices, and employments; to appoint or provide for the ap- pointment of all officers and employes of the municipality ; to remove any such officers or employe by a majority vote of all members and by ordinance or resolution to prescribe, limit or change the compensation of such officers and em- ployes. [103 v. 767, Art. HI, § 7.] 23 CLASSIFICATION. § 3515-18 [Sec. 3515-18.] § 8. [Supervision by commissioners.] The commission may, at its discretion, assign the direction or supervision of particular departments or branches of the gov- ernment to individual commissioners; but such action shall in no manner release the commission as a whole from responsi- bility or the condition of any department or branch of gov- ernment so assigned. [103 v. 767, Art. III, § 8.] ARTICLE IV. CITY ‘MANAGER PLAN. [Sec. 3515-19.] §1. [General description.] The form of government provided in this article, to be known as the ‘“‘City manager plan,’’ shall consist of a’ council of five or more citizens, according to the population of the municipality as determined by the last preceding census, who shall be elected at large. The council shall constitute the governing body of such city with power to pass ordinances, adopt regu- lations, appoint a chief administrative officer, to be known as the city manager, approve all appointments made by the city manager, except as otherwise provided in this act, fix all salaries, appoint a civil service commission and all boards or commissioners created by ordinance. [103 v. 767, Art. IV, §1.] [Sec. 3515-20.] §2. [Size and term of council; vacancies.] The number of councilmen shall be in proportion to the popu- lation of the municipality, as determined by the last preced- ing federal census, as follows: A municipality having not more than ten thousand inhabitants, five; more than ten thou- sand and not more than twenty-five thousand inhabitants, seven; more than twenty-five thousand inhabitants, nine. All councilmen shall serve for a term of four years and until their successors are elected and have qualified. Except that at the first election in municipalities having five councilmen, the candidates having the three highest number of votes shall serve for four years, the other two councilmen shall serve for two years, and in municipalities having more than five councilmen the majority of councilmen having the highest number of votes shall serve for a period of four years and the others for a period of two years. Vacancies in the council Shall be filled hy the council for the remainder of the unex- § 3515-21 THE OHIO MUNICIPAL CODE. 24 pired term, but any vacancy resulting from a recall election shall be filled in the manner provided for in such cases. [103 TOR UATUSHEY segoatn [Sec. 3515-21.] §3. [Meetings of council.] The council shall meet at the usual place for holding such meetings, at ten o’clock a. m. on‘the first day of January after its elec- tion, at which time the newly elected councilmen shall assume the duties of their office. Thereafter the council shall meet in regular session at least twice each month at such times and places as shall be fixed by ordinance. The elerk shall call special sessions of the council upon written request of the chairman or of any two members. Any such requests shall state the subjects to be considered at such special meeting and no other subject shall be there considered. [103 v. 767, ATE- LV. 78.3. | [Sec. 3515-22.] § 4. [Signing of ordinances.] Every ordi- nance or resolution passed by the council shall be signed by the chairman or two members, filed with the clerk within two days and by him recorded. [103 v. 767, Art. IV, § 4.] Sec. 3515-23. [Powers exercised by council.] The powers conferred upon municipalities by the constitution of Ohio, and any additional powers which may have been or may be conferred upon municipalities by the general assembly, shall be exercised by the council unless the exercise of such powers shall have been expressly conferred upon some other authority of ‘the municipality or reserved to the people thereof. [Police justice; appointment, term, jurisdiction, records, etc.] The council may appoint some justice of the peace, resident of the municipality, to be police justice for the term of two years, who shall during the term, unless removed by a two-third vote of the members of the council, have juris- diction of all violations of the ordinances of the municipality, with full power to hear and determine the same, and shall have the same power, be entitled to the same fees, perform the same duties, be subject to the same responsibilities as the mayors of cities. Said police justice shall charge and receive the same fees as are allowed by law to justices of the peace, 25 CLASSIFICATION. § 3515-24 and shall retain the same for his services, shall turn over to the treasurer of the municipality all fines collected by him as such police justice. Such justice of the peace so appointed shall be styled ‘‘police justice’’, and in such style he shali sign all process and records during the time he shall serve. He shall keep a docket in which he shall enter, as is provided by law, all cases brought before him. Such docket shall be provided by and be the property of the municipality. At the end of each month such police justice shall make a report to the council of all cases brought before him as such police justice. [108 v. 1186; 103 v. 767, Art. IV, §5.] Sec. 3515-24. [Council may provide for officers; prescribe their duties and salaries.] The council shall appoint a clerk, treasurer, auditor and solicitor; but provisions may be made by ordinance for the performance of the duties of clerk and treasurer, or clerk and auditor, by the same person. Coun- ceil may provide that the treasurer or auditor may be em- ployed as cashier in the electric light or water department,‘ or both, of such city, and as clerk to the city manager and as clerk to the civil service commission of such municipality. Council may provide that a part of the salary of the auditor shall be paid from the income of any publicly owned utility or cemetery, operated by such municipality; such part’ of the auditor’s salary so to be paid shall be fixed by the coun- cil with reference to the proportion of the auditor’s ser- vices devoted to such utility or cemetery. Council may also provide that the treasurer or auditor may be employed as cashier of any such utility or cemetery or both, and as clerk to the city manager and as clerk to the civil service com- mission of such municipality; and any auditor or treasurer who is employed as such cashier may be paid for such services from the funds of such utility or cemetery, in addi- tion to his salary as auditor or treasurer. [110 v. 78; 108 v. 1186; 103 v. 767, Art. IV, §6.] (1) Auditor who is employed as in addition to his salary as City cashier in the water works or elec- Auditor in cities operating under tric light department may be paid the city manager plan. Op. Atty from the funds of the departments Gen. (1920), p. 582. [Sec. 3515-25.] §7. [Creation and discontinuance of of- § 8515-26 THE OHIO MUNICIPAL CODE. 26 fices.] Subject to the provisions of this act, the council shall have authority to create and discontinue departments, offices and employments; to appoint or provide for the appointment of all officers and employes of the municipality; to remove any such officer or employe by a majority vote of all mem- bers and by ordinance or resolution to prescribe, limit or change the compensation of such officers and employes. [103 VEST, Arte eles te [Sec. 3515-26.] §8. [City manager.] The council shall appoint a city manager who shall be the administrative head of the municipal government under the direction and super- vision of the council and who shall hold office at the pleasure of the council. [103 v. 767, Art. IV, § 8.] Sec. 3515-27. [Duties city manager.] The duties of the city manager shall be: (a) to see that the laws and ordi- nances are faithfully executed; (b) to attend all meetings of the council at which his attendance may be required by that body; (ec) to recommend for adoption to the council such measures as he may deem necessary or expedient ; (d) to appoint all officers and employes in the classified service of the municipality, subject to the provisions of this act and the civil service law; (e) to prepare and submit to the council such report as may be required by that body, or as he may deem advisable to submit; (f) to keep the council fully advised of the financial condition of the munici- pality and its future needs; (g) to prepare and submit to the council a tentative budget for the next fiscal year; (h) and to perform such other duties as the council may determine by ordinance or resolution; (i) and to sign all contracts and bonds for and on behalf of the municipality. [110 v. 78, 79; 103 v. 767, Art. IV, §9.] Sec. 3515-28. [Salary, oath, bond, seal.] The city manager shall receive such salary as may be fixed by the council, council may provide that such part of the salary of the city managers as it deems proper shall be paid from the income of any publicly owned utility operated by such municipality, or from any public cemetery; said part of the salary of the city manager so paid out of the income of such public utility 27 CLASSIFICATION. § 3515-29 or cemetery shall be fixed by the council with reference to the proportion of the city manager’s time devoted to such utility. Before entering upon the duties of his office, the city manager shall take the official oath required by this act and shall execute a bond in favor of the municipality for the faithful performance of his duties in such sum as may be fixed by the council. The city manager shall be furnished with the corporate seal of the corporation, in the center of which shall be engraved the coat of arms of the state, as described in the General Code, and around the edge of which shall be the words, ‘‘Manager of the city of —_—_____—.,,”’ or, ‘‘Manager of the village of —————__—_, state of Ohio,’’ as the case may be. [110 v. 78, 79; 108 v. 1186, 1187; 103 v. 767, Art. IV, § 10.] ARTICLE V. FEDERAL PLAN. [Sec. 3515-29.] §1. [Form of government.] The form of government provided for in this article shall be known as the federal plan. In municipalities adopting this plan the only elective officers shall be mayor and members of council as provided for in this act. The mayor, the auditor, and heads of departments appointed by the mayor, shall consti- tute a board of control as hereinafter provided. [103 v. 767, Art. V9.2. [Sec. 3515-30.] §2. [Council; term and number of mem- bers.] All legislative power of the municipality shall be vested in a council consisting of not less than five (5) nor more than fifteen (15) members. In municipalities of less than ten thousand population members of the council shall be elected at large; in all others they shall be elected from wards or at large, as determined by the vote provided for in article 1, section 3 hereof. The term of office shall be two years when the council is elected by wards and four years when the council is elected at large. Except that at the first election in municipalities where the council is elected at large, and having three councilmen, the candidates having the two highest number of votes shall serve for four years, the other councilman shall serve for two years, and in such municipali- ties having more than three councilmen the majority of coun- § 3515-31 THE OHIO MUNICIPAL CODE. 28 eilmen having the highest number of votes shall serve for a period of four years and the others for a period of two years. When the council is elected by wards the number of council- men shall be in proportion to the population of the munici- pality, as determined by the last preceding federal census, as follows: A municipality having not more than ten thousand inhabitants, five councilmen; more than ten thousand and not more twenty-five thousand, seven councilmen; more than twenty-five thousand and not more than fifty thousand, nine councilmen; and for each twenty-five thousand inhabitants in excess of fifty thousand, the number shall be increased by one; but the total number of councilmen shall not exceed fif- teen. When the council is elected at large the number of coun- cilmen shall be in proportion to the population of the munici- pality as determined by the last preceding federal census, as follows: A municipality not having more than ten thousand inhabitants, three councilmen; more than ten thousand and not more than twenty-five thousand, five councilmen; more than twenty-five thousand and not more than fifty thousand, seven councilmen, and for each twenty-five thousand inhab- itants in excess of fifty thousand the number shall be in- ereased by one, but the total number of councilmen shall not exceed nine. [103 v. 767, Art. V, § 2.] [Sec. 3515-31.] §3. [Wards; when cities have a council elected by wards.] For the first election of members of the council after the adoption of the federal plan, in any munici- pality having ten thousand inhabitants or more, the munici- pality shall be divided into wards by the legislative authority existing under the plan of government to be superseded. Immediately after the proclamation by the secretary of state as to the population of the municipalities of Ohio, as deter- mined by the federal census decennially taken, the council shall have power to re-divide the municipality into wards upon the basis of its population; the object and purpose be- ing that the wards of any municipality as fixed hereunder shall be.as nearly equal in population as may be and com- posed of contiguous and compact territory, bounded by nat- ural boundaries or street lines. Any member of the council elected from wards, who, at any time for his election was a 29 CLASSIFICATION. § 3515-32 resident of the ward which he represents shall forfeit his of- fice if he removes from such ward, and the council shall fill the vacancy for the unexpired term. [103 v. 767, Art. V, § 3.] [Sec. 3515-32.] §4. [Meeting of council] At ten 0’clock a. m. on the first day of January following a regular mu- nicipal election the council shall meet at the usual place for holding such meetings, at which time the newly elected coun- cilmen-shall assume the duties of their office. Thereafter the council shall meet at such times as may be prescribed by ordi- nance or resolution; but it shall meet at least twice each month. Special sessions of the council shall be called by the clerk upon written request of the mayor, the chairman, or any two members. Any such report shall state the subjects to be considered at the meeting and no other subjects shall be there considered. [103 v. 767, Art. V, § 4. ] [Sec. 3515-33.] §5. [Mayor’s veto.] Any ordinance or resolution passed by the council shall be signed by the chair- man or two members and presented to the mayor. If the mayor approves such ordinance or resolution he shall sign it, but if he does not approve it, he shall return the same to the council with his objections within ten days thereafter, or if the council be not then in session at the next regular meet- ing thereof, which objections the council shall cause to be entered in full on its journal. If the mayor does not return an ordinance or resolution within the time specified it shall take effect in the same manner as if he had signed it. The mayor may approve or disapprove the whole or any item or part of any ordinance or resolution appropriating money. When the mayor refuses to sign any ordinance or resolution or part thereof and returns it to the council with his objec- tions, the council shall, after the expiration of not less than one week, proceed to reconsider it, and if upon reconsidera- tion the resolution or ordinance or part; or item thereof dis- approved by the mayor is approved by the vote of two-thirds of all the members elected to the council it shall then take effect as if it had received the signature of the mayor. In all such cases the votes shall be taken by ‘‘yeas’’ and ~ DaVS:? and entered on the journal. [103 v. 767, Art. eae or 515-34 THE OHIO MUNICIPAL CODE. 30 [Sec, 3515-34.] §6. [Creation and discontinuance of of- ficers.] The council shall have authority to create and dis- continue departments and offices other than those provided for in this act, and to provide for the appointment of all such officers, but the functions and number of subdepart- ments, and the number and salaries of subordinates and em- ployes shall be fixed by the executive heads of the various departments, all of which provisions, however, shall be sub- ject to the rules and regulations of the civil service com- mission as authorized by law. [103 v. 767, Art. V, §6.] [Sec, 3515-35.] §7. [The executive power.] The execu- tive power of the municipality shall be vested in the mayor, the heads of the departments hereinafter named, and such other executive officers as are provided for herein or as shall be provided for by ordinance. [103 v. 767, Art. Nietaba [Sec. 3515-36.] §8. [The mayor.] The mayor shall be elected at the regular municipal election for a term of four years and shall assume office on the first day of January next following his election. He shall appoint a director of public service, a director of public safety, a solicitor, and a treas- urer. The council may provide by ordinances for combining the offices and duties of the directors of public service and public safety. The mayor and heads of departments shall not hold any other federal, state, county or municipal office, except that of notary public or member of the state militia, nor be an employe in any such office. [103 v. 767, Art. V, § 8.] [Sec, 3515-37.] §9. [Powers and duties of mayor,] The duties of the mayor shall be (a) to see that the laws and or- dinanees are enforced; (b) to recommend to the council for adoption, such measure as he may deem necessary or expedi- ent; (c) to keep the council fully advised of the financial condition and future needs of the municipality; (d) to pre- pare and submit to the council such reports as may be re- quired by that body; (e) to appoint, whenever he deems it necessary competent, distinterested persons not exceeding three in number, to examine without notice the affairs of any department, officer, or employe, and the result of such exami- 31 CLASSIFICATION. § 3515-38 nation shall be reported to his office, and also transmitted to him by the council without delay; (f) to perform such other duties as the council may determine by ordinance or resolu- tion, not in conflict with the provisions of this article. Any person or persons appointed by the mayor to examine the affairs of any department, officer, or employe, shall have the same power to compel the attendance of witnesses and to compel the production of books, papers and other evidence and to punish for contempt, as is conferred upon the council or committee thereof, by this act. [103 v. 767, Art. V, §9.] [Sec. 3515-38.] §10. [Appointment and removal of offi- cers.] Subject to the provisions of this act, all officers, clerks and employes of the several departments and subdivisions thereof, shall be appointed, employed, suspended or removed by the head of the department. The mayor may, without as- signment of reason, remove any department head appointed by him. [103 v. 767, Art. V, § 10.] [Sec. 3515-39.] §11. [Acting mayor.] If the mayor be temporarily absent from the municipality, or become tempo- rarily disabled by sickness, accident, or for any other cause, the heads of the departments named in this act shall during such absence or disability perform the duties of the mayor under the designation of the acting mayor in the following order: solicitor, director of public service, director of public safety, auditor, treasurer. If the mayor shall die or remove his residence from the municipality during the term of his office, the succession to the office of mayor shall be from the heads of the departments in the same order as aforesaid, and such successor shall become the mayor of the munici- pality for the unexpired term. In the event of any temporary disability or absence on the part of any director or head of department hereinbefore provided for, the mayor may in writing designate some suitable person to perform his duties until he resumes his office. [103 v. 767, Art. V, § 11.]: [Sec. 3515-40.] §12. [Director of public service.] The de- partment of public service shall be under the charge of a di- rector to be appointed by the mayor as hereinbefore provided. He shall have the care, management, construction and im- § 351541 THE OHIO MUNICIPAL CODE. 3Z provement of all utilities owned or operated by the munici- pality; of all public ways, grounds, cemeteries, buildings, sewers and structures of every kind, except buildings and structures used in connection with the work to be performed under the direction of the director of public safety as here- inafter provided; of the making and preserving of survey maps, plans, drawings and estimates relating to the publie work under the charge of the department: and of all matters and things in any way relative to or affecting the highways, footways, waterways, harbors, wharves and docks, within the municipality, and he shall exercise the powers heretofore vested in the trustee of waterworks, park commissions, plat- ting commissions, street commissions, city engineers, or other board of officers relating to the work herein committed to the care and management of the director of public service. [103 TOT oul ty (VGey ae [Sec, 3515-41.] §13. [Director of public safety.] The de- partment of public safety shall be under the charge of a di- rector to be appointed by the mayor as hereinbefore provided. The director of public safety shall have charge of the police, fire, health, charities and corrections, and building inspection of the municipality, and all powers and authority by any eeneral law heretofore vested in boards or officers having au- thority over police, fire, health, charity and corrections, and building inspection shall be, and are hereby vested in the di- rector of publie safety. He shall have charge of the admin- istration of all infirmaries, charitable, correction and penal institutions. He shall make such rules and regulations as are necessary and proper for the employment, discipline, instrue- tion, education, reformation, and the conditional release and return of all prisoners confined in any penal institution under his control. [103 v. 767, Art. V, § 18.] [Sec, 3515-42.] §14. [Board of control.] There shall be a board of control composed of the mayor, who shall be the president thereof, the auditor, and the heads of the depart- ments appointed by the mayor. The board of eontrol shall have stated meetings at least twice a week; shall keep a rec- ord of its proceedings; shall cause its votes to be taken by yeas and nays, and entered on the record and a majority of 33 CLASSIFICATION. § 3515-43 all the members of the board shall be necessary to adopt any motion, or order. No ordinance or resolution involving any expenditure of money for public improvements shall be passed until the same shall have been approved by the board of control, except upon a two-thirds vote of the council. [103 v. 767, Art. V, §14.] [Sec. 3515-43.] §15. [Seats in council.] The mayor and the heads of the several departments shall have seats in the eouncil. The mayor shall be entitled to introduce ordinances and take part in its proceedings and deliberations on all questions, and the heads of departments shall be entitled to . take part in its proceedings and deliberations on all questions relating to their respective departments, subject to such rules as the council shall from time to time prescribe, but without the right to vote. [103 v. 767, Art. V, § 15.] [Sec. 3515-44.] §16. [Powers of municipality.] In mu- nicipalities adopting the federal plan, the powers conferred upon municipalities by the constitution of Ohio, and any ad- ditional powers which have been or may be conferred upon municipalities by the general assembly shall be exercised by the officers and authorities provided for in this article unless the exercise of such powers shall have been expressly con- ferred upon some other authority of the municipality or re- served to the people thereof. [103 v. 767, Art. V, § 16.] ARTICLE VI. GENERAL PROVISIONS—APPLICABLE TO EACH PLAN. [Sec. 3515-45.] §1. [Applicable to each plan.] The sec- tions of this article shall apply to and be a part of each plan of government provided in this act. The powers conferred upon municipalities by the municipal code so far as ap- plicable shall govern unless otherwise provided by law. Such provisions may be proposed by the legislative authority of any municipality, or by the electors of such municipality by petition in the manner prescribed by law for the submission of initiative petitions. Such provisions shall take effect and be in foree when approved by the majority of the electors voting thereon. In municipalities adopting the commission plan of government provided in this act, the term ‘‘council’’ § 351546 THE OHIO MUNICIPAL CODE. 34 as used in this article and in article VII, shall be held to re- fer to the commission. [103 v. 767, Art. VI, §1.] [Sec. 3515-46.] §2. [Treasurer.] The treasurer shall be the custodian of all moneys of the municipality, and shall keep and preserve the same in such manner and in such place or places as shall be determined by the eouncil. He shall pay out money only on warrants issued by the auditor. [103 v. 767, Art. VI, § 2.] [Sec. 3515-47.] §3. [The auditor.] The council shall choose an auditor whose duty it shall be to keep an accurate account of all taxes and assessments, of all money due to and all receipts and disbursements by the municipality, of all as- sets and liabilities of the municipality, and of all appropria- tions made by the council. He shall at the end of each fiscal year, and oftener if required by the council, audit the ac- counts of the several departments and officers, and shall audit all other accounts in which the municipality is interested. He may prescribe the form of reports to be rendered to his de- partment, and the method of keeping accounts by all other departments, and he shall require daily reports to be made to him by each department showing the receipt of all moneys by such department and the disposition thereof. The auditor shall upon the death, resignation, removal, or expiration of the term of any officer, audit the accounts of such officer, and if such officer shall be found indebted to the municipality he shall immediately give notice thereof to the council and the solicitor, and the latter shall forthwith proceed to col- lect the same. [103 v. 767, Art. VI, §3.] [Sec, 3515-48.] §4. [Payment of claims.] No warrant for the payment of any claim shall be issued by the auditor until such claim shall have been approved by the head of the department for which the indebtedness was incurred, and each head of department and his surety shall be liable to the municipality for all loss or damage sustained by the municipality by reason of the negligence or corrupt approval of any claim against the municipality in his department. Whenever any claim shall be presented to the auditor he shall have power to require evidence that the amount claimed is 35 CLASSIFICATION. § 3515-49 justly due and is in conformity to law and ordinance, and for that purpose he may summon before him any officer, agent, or employe, or any department of the municipality, or any other person, and examine him upon oath or affirmation rela- tive thereto, which oath or affirmation he may administer. [103 v. 767, Art. VI, § 4.] [Sec. 3515-49.] §5. [Clerk.] The council shall choose a clerk and such other officers and employes of its own body as may be deemed necessary. The clerk shall keep the records of the council and perform such other duties as may be re- quired by ordinance or resolution. All officers and employes chosen by the council shall serve during the pleasure thereof. [103 v. 767, Art. VI, § 5.] [Sec. 3515-50.] §6. [Solicitor.] The solicitor shall act as the legal adviser to and attorney and counsel for the mu- nicipality, and for all officers in matters relating to their of- ficial duties. He shall prepare all contracts, bonds, and other instruments in writing in which the municipality is con- cerned, and shall endorse on each his approval of the form and correctness thereof, and no contract with such munici- pality shall take effect until the approval of the solicitor is endorsed thereon. He or his assistants shall be the prosecutor or prosecutors in any police or municipal court, and shall per- form such other duties and have such assistants and clerks as may be required or provided. [103 v. 767, Art. VI, § 6.] [Sec. 3515-51.] §7. [Qualifications of councilmen.] Mem- bers of the council shall be electors of the municipality. They shall not hold any other public office or employment except that of notary public or member of the state militia, and shall not be interested in the profits or emoluments of any contract, job, work or service for the municipality. Any members who Shall cease to possess any of the qualifications herein required shall forthwith forfeit his office and any such contract in which any member is or may become interested may be de- clared void by the council. [103 v. tOl rh. V1, Ose. | [Sec. 3515-52.] §8. [Salaries and attendance of council- men.] The council shall by ordinance fix the salary of its § 3515-53 THE OHIO MUNICIPAL CODE. _ 36 members which shall be paid in equal monthly installments. For each absence from regular meetings of the council, un- less authorized by a two-thirds vote of all members thereof, there shall be deducted a sum equal to two per cent. of such annual salary. Absence for ten successive regular meetings shall operate to vacate the seat of a member unless such ab- sence is authorized by council. [103 v. 767, Art. VI, §8.] [Sec. 3515-53.] §9. [Chairman of council.] At the first ~ meeting following each regular municipal election, the coun- cil shall elect one of its members chairman, who shall pre- side at meetings of the council and perform such duties as may be imposed upon him as presiding officer, by the coun- Ci. Five v, (Ol, Alt. Vii, Sond Sec. 3515-54. [Legislative procedure.] A majority of all members of the council shall constitute a quorum to do business, but a smaller number may adjourn from day to day and compel the attendance of absent members. The affirmative vote of a majority of the members of the coun- cil shall be necessary to adopt any motion, or ordinance or resolution and on the passage of every ordinance or reso- lution the vote shall be taken by ‘‘yeas’’ and ‘‘nays’’ and entered upon the journal. Each proposed ordinance or reso- lution shall be in written or printed form, and shall not contain more than one subject which shall be clearly stated in the title; provided, however, that general appropriation ordinances may contain the various subjects and accounts for which moneys are appropriated. No ordinance, unless it be declared an emergency measure, shall be passed until it has been read on three separate days, the first and second reading of which may be by title only and in case said measure shall be printed and a copy thereof placed on the desk of each member then said third reading may be by title only, provided that the rule requiring every ordi- nance to be read on three separate days may be suspended by a three-fourths vote of all members elected or appointed to council, taken by ‘‘yeas’’ and ‘‘nays’’ on each ordinance, and entered on the journal. [110 v. 78, 79; 103 v. 767, Art.« ¥1,§:10.] 37 | CLASSIFICATION. § 3515-55 [Sec. 3515-55.] § 11. [Publication of ordinances.] All or- dinances or resolutions shall be in effect from and after thirty days from the date of their passage except as otherwise pro- vided in this act. Ordinances of a general nature, or provid- ing for public improvements, or assessing property shall, upon passage, be promptly published one time in not more than two newspapers of general circulation in the munici- pality. Such ordinances shall be printed in the body type of the paper under head lines in eighteen point type, which shall specify the nature of such legislation. For the publi- cation of ordinances no newspaper shall be paid any higher price than its maximum bona fide commercial rate. [103 v. VOT, Art. VI; § 11.) [Sec, 3515-56.] §12. [Annual tax ordinances.] An an- nual tax ordinance to determine the amount of the tax levy shall be prepared by the mayor, the chairman of the commis- sion, or the city manager, as the case may be, under the di- rection of the council. For the purpose of preparing such ordinances the mayor, the chairman of the commission, or the city manager, as the case may be, shall require from the head of each office or department for which appropria- tions are made, a detailed statement, upon uniform blanks furnished by the mayor, the chairman of the commission, or the city manager, as the case may be, of the expenses of such office or department for the previous year or years and the estimated expense for the next year. The tax ordinance pre- pared by the mayor, the chairman of the commission, or the city manager, as the case may be, shall set forth in detail the probable revenues of the municipality from every source, in such form as to indicate the means by which it is proposed to provide for the estimated expenditure set forth in such ordinance, and shall also include detailed statements of the contemplated expenditures of the municipality and of each office, department and functional division thereof. After the tax ordinance is prepared by the mayor, the chairman of the commission, or the city manager, as the cage may be, oppor- tunity shall be given, after at least one weck’s notice, for public hearings thereon. The ordinance ghall then be sub- — mitted to the council and by them to the county budget com- § 3515-57 THE OHIO MUNICIPAL CODE. 38 mission which shall fix the total maximum tax levy permitted to the municipality for the ensuing year. The council shall then fix the actual tax levy for the ensuing year, but such levy shall not be higher than the estimate submitted by the mayor, the chairman of the commission, or the city manager, as the case may be, or exceed the limit fixed by the county budget commission. Such levy shall not be higher than the maximum now provided for by law. [103 v. 767, Art. VI, § 12.] [Sec. 3515-57.] §13. [Annual appropriation ordinance.] An annual appropriation ordinance shall be prepared by the council from estimates submitted by the mayor, the chairman of the commission, or the city manager, as the case may be, in the same manner as herein provided for the annual tax ordi- nance. The annual appropriation ordinance shall be sub- mitted to the council at its first meeting in January and the total of any appropriation ordinance passed by the eounceil shall not exceed the total balances carried over from the pre- vious year, plus the estimated revenue of the current year. Supplemental appropriations shall not be made during the current year except from a contingent fund regularly set aside by the council in the annual appropriation ordinance or unless by an ordinance passed as an emergency measure. [108 vy. (Ot, Art. Vie es [Sec. 3515-58.] §14. [Limitation on appropriations.] No money shall be drawn from the treasury of the municipality except in pursuance of appropriations made by the council, and whenever an appropriation is so made the clerk shall forthwith give notice to the auditor and treasurer. Appro- priations may be made in furtherance of improvements or other objects or work of the municipality which will not be completed within the current year. At the end of each year all unexpended balances of appropriations shall revert to the respective funds from which the same were appropriated and shall then be subject to future appropriations. [103 v. 767, Art. VI, § 14.] [Sec. 3515-59.] §15. [Investigations by council.] The council or any commission thereof authorized by it so to do 39 CLASSIFICATION. § 3515-60 shall have power to compel the attendance of witnesses and the production of books, papers and other evidence, at any meeting of the council, or any committee thereof, and for that purpose may issue subpoenas or attachments in any case of injury or investigation, to be signed by the presiding officer of the council, or chairman of such committee as the case may be, which shall be served and executed by any officer authorized by law to serve subpoenas and other processes, and if any witness shall refuse to testify to any acts within his knowledge, or to produce any papers or books in his posses- sion, or under his control, relating to the matter under in- quiry, before the council or any such committee, the council shall have power to commit the witness to prison for con- tempt. No witness shall be excused from testifying touching his knowledge or the matter under investigation in any such inquiry, but such testimony shall not be used against him in any criminal prosecution except for perjury. [103 v. 767, Art. VI, § 15.] [Sec. 3515-60.] §16. [Reports of council—publicity.] At the end of each year the council shall have printed an annual report, in pamphlet form, giving the classified statement of all receipts, expenditures, assets and liabilities of the munici- pality; a detailed comparison of such receipts and expendi- tures with those of year preceding; a summary of the council proceedings and a summary of the operations of the adminis- trative departments for the previous twelve months. A copy of this report shall be furnished to the state bureau of ac- counting, the municipal library and to any citizen of the mu- nicipality who shall apply therefor at the office of the clerk. Similar reports may be printed quarterly at the discretion of the council. All meetings of the council or committees there- of shall be public and any citizen of the municipality shall have access to the minutes and records thereof at all rea- sonable times. [103 v. 767, Art. VI, § 16.] [Sec, 3515-61.] §17. [Civil service commission.] Within ten days after the first officers assume their duties, in any city adopting a plan of government provided in this act, the commission in cities adopting the commission plan, the coun- § 3515-62 THE OHIO MUNICIPAL CODE. 40 cil in cities adopting the city manager plan and the mayor in cities adopting the federal plan, shall appoint three persons who shall constitute the municipal civil service commission. Not more than two of such persons shall be of the same po- litical party and they shall serve, one for two years, one for four years and one for six years and until their successors are appointed and have qualified. Upon the expiration of their respective terms of office, the appointing authority shall appoint their successors to hold office for a term of six years and until their successors are appointed and have qualified. Any vacancy in the civil service commission shall be filled by the appointing authority for the unexpired term. The ap- pointing authority may at any time remove any of said civil service commissioners for misconduct, neglect of duty or mal- feasance in office, first having given such commissioner an op- portunity of being publicly heard in person or by counsel in his own defense. The commission or council shall provide suitable rooms and all necessary supplies and equipment for the proper conduct of the duties of the civil service com- mission. [103 v. 767, Art. VI, §17.] [Sec. 3515-62.] §18. [Salaries and duties.] The salaries of the civil service commissioners and of their assistants shall be determined by ordinance. The duties of the civil service commission shall be to enforce the provisions of the civil service law with respect to all offices and place of employ- ment in such city. The ‘civil service commission shall make such rules for the proper performance of its duties as it shall find necessary and expedient, and as are not inconsistent with the civil service law. [103 v. 767, Art. VI, §18.] [Sec. 3515-63.] §19. [Compensation.] The salary of an elective officer shall not be changed during the term for which such officer was elected. All fees and perquisites au- thorized by law or ordinance appertaining to any office or officer in the municipal government shall be paid into the treasury, and unless otherwise provided shall be eredited to the general fund, and no officer or employe of the munici- pality shall receive otherwise than as the representative of the municipality and for the purpose of paying same into 4] CLASSIFICATION. § 3515-64 the treasury any fee, present, gift, or emolument, or share therein, for official services, other than his regular salary or compensation, and any officer violating this prohibition shall thereby forfeit his office. No member of the council or other officer or employe thereof shall receive compensation for ser- vices rendered in any other department of the city govern- ment, nor shall they, nor any other officer, clerk, or employe of the municipality, act as agent or attorney for any person, company, or corporation, in relation to any matter to be af- fected by action of the legislative or any other department of the municipality, or by the action of any officer of the mu- nicipality. The violation of this prohibition shall be cause for removal. [103 v. 767, Art. VI, § 19.] [Sec. 3515-64.] §20. [Duties of officers.] The duties of all officers and employees shall be those prescribed by this act or by ordinance or resolution of the council. [103 vy. 767, Art. VI, § 20.] [Sec. 3515-65.] §21. [Bonds.]. The treasurer, auditor and such other officers or employes of the municipality as the council may direct, shall give a bond to the municipality for the faithful performance of their duties in the sum as the council may fix by ordinance or resolution. Premiums on official bonds may be paid by the municipality. [103 v. 767, Art, VS oa. [Sec. 3515-66.] §22. [Oath of office.] Every officer of the municipality and every employe holding a position upon annual salary before entering upon the duties of his office shall take and subscribe to an oath or affirmation, to be filed and kept in the office of the clerk, that he will support the constitution of the United States and the State of Ohio, and the charter and ordinances of the municipality; that he will not be influenced by any consideration except that of merit and fitness in the appointment or discharge of employes; that he will not make or authorize the expenditure of public money otherwise than for adequate consideration and efficient service to the municipality; that he will in all other respects faithfully discharge the duties of his position or office. [103 v. 767, Art. VI, § 22.] § 3515-67 THE OHIO MUNICIPAL CODE. 42 [Sec. 3515-67.] §23. [Existing offices abolished.] All of- fices, boards or commissions, except boards in charge of edu- cational institutions, sinking fund and depository commis- sions, are hereby abolished; the title to any property con- trolled by such officers, boards or commissions is vested in the municipality; and their powers and duties shall be ex- ercised and performed as provided in this act. [108 v. 767, Art. VI, § 23.] [Sec. 3515-68.] §24. [Schedule.] The powers which are conferred and the duties which are imposed upon any office or department of the municipality under the laws of the state, or any ordinance which is in force at the time of the taking effect of this act, shall, if such office or department is abol- ished in pursuance of the provisions of this act, be there- after exercised and discharged by the officer, board or de- partment upon whom is imposed corresponding functions, powers and duties under the provisions of this act. Nothing herein contained shall impair or effect the validity of any contract or bond executed or authorized prior to the adoption by any municipality of one of the plans provided for in this act. When any such contract or bond contains provisions . that the same be enforced by some officer, board or depart- ment therein named and where by the adoption of any plan provided for in this act such office, board or department is abolished, the powers conferred and the duties imposed with reference to the same upon the officer, board or department which has been abolished shall thereafter be exercised and discharged by the officer, board or department upon whom is conferred or imposed like powers, functions or duties under the provisions of this act. [103 v. 767, Art. VI, § 24.] [Sec. 3515-69.] §29. [Abandonment of plan.]' Any mu- nicipality which shall have operated for five years under any plan provided in this act may abandon such organization, and may adopt any organization or form of government provided by this act and designated in the petition by proceeding as follows: Upon the filing of a petition with the board of deputy state supervisors of elections or board of deputy state supervisors and inspectors of elections, as the case may be, 43 CLASSIFICATION. § 3515-70 containing the names of not less than ten per cent. of the electors of such municipality, a special election shall be called by the council at: which the following proposition shall be submitted: ‘‘Shall the municipality of (............ ) aban- don thei deged. Juice ows ) plan and adopt the (name) plan as provided in article (........ prehapter (eceoooue. ) of the Gen- eral Code?’’ If a majority of the votes cast at such special election be in favor of such proposition, the officers elected at the next succeeding regular municipal election shall be those prescribed by the statutes designated in the petition and upon the qualification of such officers such municipality shall be and become organized under the statutes designated : but such change shall not affect the property, right or abil- ity of any nature of such municipality, but shall extend merely to such change in its form of government. The elec- tion for such change shall be ordered and conducted, and the results declared as provided in section 2 of article I of this act, and in the general election laws of the state. [103 v. 767, Art. VI, § 29.] (1) No application to charter cities amendment of charters, and the or villages.—The constitutional pro- above section of the General Code visions in § 9, Art. XVIII of the has no application. Switzer v. State, constitution are exclusive as to ex rel., 103 O. S. 306. ARTICLE VII. INITIATIVE, REFERENDUM AND RECALL. [Sec. 3515-70.] §1. [Adoption.] All laws pertaining to the initiative and referendum in municipalities shall apply to and become a part of each plan of government provided for in this act. The provisions of section 2 of this article shall be submitted to the electors of the municipality as prescribed in article I, section 3 hereof, with each and every plan of government, provided herein. Section 2 of this article shall form a part of any such plan of government and go into ef- fect in such municipality only to the extent to which the provisions have been adopted as provided in article I, section 3 hereof. [103 v. 767, Art. VII, §1.] [Sec. 3515-71.] §2. [The recall.] Any elective officer of any municipality may be removed from office by the quali- § 3515-71 THE OHIO MUNICIPAL CODE. 44 fied voters of such municipality. The procedure to effect such removal shall be as follows: (1). A petition signed by qualified electors equal in num-— ber to at least fifteen per cent. of the total votes cast at the last preceding general municipal election, and demanding the election of a successor to the person sought to be removed, shall be filed with the deputy state supervisors of elections or board of deputy state supervisors and inspectors of elec- tions, as the case may be, which petition shall contain a gen- eral statement in not more than two hundred words of the grounds upon which the removal is sought. The form, suffi- ciency and regularity of any such petition shall be deter- mined as provided in the general election laws. (2). If the petition shall be sufficient, and if the person or persons whose removal is sought shall not resign within five days after the sufficiency of the petition has been deter- mined, the council shall thereupon order and fix a day for holding an election to determine the question of his removal, and for the selection of a successor to each officer named in said petition, which election shall be held not less than thirty nor more than forty days from the finding of the sufficiency of the petition. The election authorities shall cause publica- tion of notice and all arrangements to be made for holding such election, and the same shall be conducted and the result thereof returned and declared in all respects as are the re- sults of general municipal elections. (3). The nomination of candidates to succeed each officer sought to be removed shall be made without the intervention of a primary election by filing with the election authorities at least twenty days prior to such special election, a petition proposing a person for each such office, signed by electors equal in number to ten per cent. of the total votes cast at the last preceding general municipal election for the head of the ticket. (4). The ballots at such recall election shall conform to the following requirements; with respect to each person whose removal is sought, the question shall be submitted: ‘‘Shall (name of person) be removed from the office of (name of office) by recall?’’ Immediately following each 45 - CLASSIFICATION. § 3515-71 such question, there shall be printed on the ballots, the two propositions in the order set forth: “For the recall of (name of person) ’’. “Against the recall of (name of person)’’. Immediately to the left of the proposition shall be placed a square in which the electors, by making a cross (X) mark, may vote for either of such propositions. Under each of said questions shall be placed the names of candidates to fill the vacancy. The name of the officer whose removal is sought shall not appear on the ballot as a candidate to succeed him- self. (5). In any such election, if a majority of the votes cast on the question of removal are affirmative, the person whose removal is sought shall thereupon be deemed removed from office upon the announcement of the official canvass of that election, and the candidate receiving the plurality of the votes cast for candidates for that office shall be declared elected. The successor of any person so removed shall hold office during the unexpired term of his predecessor. The question of the removal of any officer shall not be submitted to the electors until he shall have served for at least one year of the term during which he is sought to be recalled. The method of removal herein provided is in addition to such other methods as may be provided by law. If, at any such recall election, the incumbent whose removal is sought is not recalled, he shall be repaid from the city treasury his actual and legitimate expenses for such election, but such sum shall not exceed fifty per cent. of the sum which he is by law permitted to expend as a candidate at any regular municipal election. [103 v. 767, Art. VII, § 2.] Constitutional provisions as_ to “Home Rule.’’—For provisions of the constitution which confer home rule upon municipal corporations and provide for the election of a commission to frame a charter and for its adoption, and for notes on ‘“‘home rule’? and forms and order of procedure, see Part IIT, post. Home rule charters.—For special charters adopted by various Ohio municipalities, see General Code, Page’s Comp. Ed., following See. 3515-71. § 3516 THE OHIO MUNICIPAL CODE. 46 CHAPTER 2. -INCORPORATION.* Sec. 3516. [Incorporation of villages.] Villages may be created and incorporated in the manner provided in this title. (96 v. 21, §5.] (1) In the former Revised Stat- utes, the provisions of this Chap- ter were contained in Chapter 2, Division 2, Title XII, R. Ss. Sec. 3517. [Who may obtain incorporation.] The inhabi- tants of any territory laid off into village lots, a plat of which territory has been acknowledged and recorded as is provided with respect to deeds, or the inhabitants of any territory which has been laid off into such lots and surveyed and platted by an engineer or surveyor who certified thereon, under oath, to its correctness, and which is recorded as is provided with respect to deeds, or the inhabitants of any island or adjacent islands, or parts thereof, or of such island or islands or parts thereof, and adjacent territory, may obtain the organization of a village in the manner provided in this title. When such village is organized upon any island or islands, it may be done without reference to the number of permanent inhabitants embraced within such territory, and without such plat having been first made. No corporation under this chapter shall em- brace within its limits the grounds or improvements of any county or city infirmary? [R. 8S. Sec. 1533; 92 v. 26; 76 v. 116; 73 v. 165.] (1) Suit to test right.—Wheth- er a suit in quo warranto will lie to test the right of the people of a certain locality to be a municipal corporation, quere. State ex rel, v. Newark, 57 O. 8. 4380. Construction of provisions.— The provisions of this chapter are to be construed in connection with Chap. 3, and both: are to be con- strued as one act. Shugars v. Wil- liams, 50 O. S, 297. Incorporation of class of territory described in § 3517 must be accom- plished by petition to county com- missioners; the provisions of § 3526 et. seq., apply to a class of territory not embraced within § 3517. Schorr v. Braun, 17 Dee. 478; 4 N. P. (N. S.) 561; Hall v. Siegrist, 13 Dee. 46. The two methods provided under the laws of Ohio for the incorpora- tion of villages are not exclusive SS ee ——— ——— ee 47 INCORPORATION. § 3518 but as to unplatted lands, §§3526 — 3531 alone apply. Libby v. Paulel ZN. Po (Ni Si) 483: each of the other, but are cumu- lative. Either method may be pur- sued as to allotted or platted lands, Sec. 3518. [How application made.] Application for such purpose shall be made by petition, which, except as pro- vided in the last preceding section, shall be signed by not less than thirty electors, residing within the proposed corporate limits, and addressed to the county commissioners, accom- panied by an accurate map of the territory.1 [R. S. Sec. 1554; 71 v. 65; 66 v. 150.] (1) Title of Petition.—A paper filed as a petition and treated as such, although styled “Amended Pe- tition” is a sufficient compliance with the statute. The character and contents of the paper should be looked at, to ascertain what it is, and not merely its title. Turpin v. Hagerty, 12 Dec. 161, (aff’d 69 O. S. 534), Sec. 3519. [What petition shall contain.] The petition shall contain: 1. An accurate description 1 of the territory em- braced within the proposed corporation, and it may contain adjacent territory not laid off into lots; 2. The supposed number of inhabitants residing in the proposed corporation ; 3. The name proposed; 4. The name of a person to act as agent for the petitioners, and more than one agent may be named therein. [R. S. See. 1555; 66 v. 150.] 534). See also Wright v. Oberlin; 23 C. C. 509. Map showing lines bounding and dividing the properties, is suffi- (1) Description—A map and description taken from the public records as they had _ stood for years, is sufficient to comply with the requirement of an accurate de- scription, even though actual meas- urements reveal some discrepan- cies in the map. Turpin v. Hager- ty, 12 Dee. 161 (aff’d 69 O. S. cient, notwithstanding it does not show the entire territory platted into lots. Schorr v. Braun, 17 Dee. 478; 4 N. P. (N. S.) 561. FORM OF PETITION FOR INCORPORATION OF VILLAGES. To the Board of Commissioners of the Caunty or ARONA R HOLD. to ae . State of Ohio: The undersigned, being thirty [or more] electors residing within the following described territory, situated in...................005 County, State of Ohio, to wit: (Here give an accurate description of territory embraced within the pro- § 3520 THE OHIO MUNICIPAL CODE. 48 posed corporation) ; an accurate map of which territory is attached hereto; respectfully represent: That all [or a part] of said territory has been laid off in village lots; a plat of which territory so laid off, has been acknowledged and recorded as is provided with respect to deeds [or which territory has been surveyed and platted by an engineer who has certified theron, under oath that the same is correct] ; That the territory above described does not embrace within its limits the grounds or improvements of any county or city infirmary; That the number of inhabitants now residing in said territory is about be organized into a village, in the manner provided by law, to be named the VLR GO uO L i o,5 0 0 Wiles tn muaione 9 08 SARE NTs Rate PAR A pig Seay CNG 5a > 00 has 2 are hereby designated as agents for the undersigned to act for them in all matters before your honorable body relative to the petition and to. the or- ganization of the said territory into the said village. (This must be signed by at least 30 electors residing in the territory to be organized into a village.) (A map of the territory described marked “Map of territory to be organ- ized into the village of............+++ee+> ,»’ should be attached to the petition.) (The form given may be adapted to a petition for the incorporation of territory on an island or islands. In such case no map need accompany the petition, and the reference to the number of inhabitants may be omitted. ) Sec. 3520. [Presentation to commissioners; time of hearing; notice.] The petition shall be presented to the board of com- missioners at a regular session thereof, and when so presented the board shall cause it to be filed in the office of the county auditor, where it shall be subject to the inspection of any person interested. The commissioners shall then fix, and com- municate to the agent of the petitioners, the time and place for hearing the petition, which time shall be not less than sixty days after such filing. Thereupon the agent shall cause a notice containing the substance of the petition, and the time and place where it will be heard, to be published in a news- paper printed and of general circulation in the county, for the period of six consecutive weeks, and cause a copy of the notice to be posted in a conspicuous place within the limits of the proposed corporation, not less than six weeks prior to the time fixed for the hearing.2 [R. 8S. See. 1556; 66 v. 150.] 49 INCORPORATION. (1) Filing with county audi- tor.—Purpose of provision requiring petition to be filed in office of coun- ty auditor was to provide a safe place for deposit and not as addi- tional notice of the hearing, and a failure so to file the petition, does not deprive the board of jurisdiction to proceed. Pollock v. Toland, 25 C, C. 75; 1 C. C, (N.S.) 315. (2) Posting of notice.—The no- tice here required when made ap- § 3521 tory to a village on its application, must be posted on the territory to be annexed. Franklin v. Croll, 31 O. 8S. 647. See § 3549. Adjourned meetings of com=- missioners.—Adjourned meetings of the county commissioners are con- tinuations of the regular sessions, in so far as the requirements of this section are concerned. Turpin v. Hagerty, 12 Dec, 161, (aff’d 69 O. S. 534). plicable to the annexation of terri- FORM OF NOTICE OF PETITION. LEGAL NOTICE. Notice is hereby given that on........... 19...., there was presented to the Board of Commissioners of the County of ................ , State of Ohio, a petition signed by thirty [or more] electors residing within the following described territory in the County of............. , State of Ohio, to-wit: (Here copy description of territory given in the petition), and repre- senting that (here copy the representations in the petition); and praying therein that said territory may be organized into a village to be named the Village! Of? 22. L990. 2S. »’ which petition is now on file in the office of the auditor of.............. County; and designating the undersigned to act as the agents of the petitioners, as required by law. The said Board of Commissioners has fixed............. LO eles Se tka Orlock a5... 2 M., as the time for hearing said petition (not less than sixty day after petition is filed) at the office of the commissioners in............ (here insert place). (To be signed by the designated agent or agents.) (This notice should be published in some paper printed and of general circulation in the county, or if none such, then in some paper of general circulation in the county (see § 4676) for six consecutive weeks prior to the time set for hearing, and should also be posted for the same length of time at some conspicuous place within the limits of the proposed corpora- tion. ) Sec. 3521. [Hearing before the commissioners.]? The hear- ing shall be public, and may be adjourned from time to time, and from place to place, according to the discretion of the commissioners. Any person interested may appear, in person or by attorney, and contest the granting of the prayer of the petition, and affidavits presented in support of or against the § 3522 THE OHIO MUNICIPAL CODE. 50 prayer of the petition shall be considered by the commission- ers, and the petition may be amended by their leave. If any amendment is permitted, whereby territory not before em- braced is added, the commissioners shall appoint another time for the hearing, of which notice shall be given, as specified in the last preceding section. [R. S. Sec. 1557; 66 v. 151.] (1) Applies to annexation Amendment to cure error in proceedings.—This section applies description which merely corrects to the procedure in case of annexa- omission of one course in boundary tion of territory to a village as well may be made without additional no- as to the case of organization of a_ tice. Pollock v. Toland, 1 C. C. village. Shugars v. Williams, 500, (N.S.) 315; 25 C. C. 75. S. 297. See § 3549 infra, Sec. 3522. [Order for organization.] Upon such hearing,. if the commissioners find that the petition contains all the matters required, that its statements are true, that the name proposed is appropriate, that the limits of the proposed cor- poration are accurately described and are not unreasonably large or small, that the map or plat is accurate, that the per- sons whose names are subscribed to the petition are electors residing on the territory, that notice has been given as re- quired, that there is the requisite population for the proposed corporation, and if it seems to the commissioners right that the prayer of the petition be granted, they shall cause an order to be entered on their journal to the effect that the corporation may be organized. [R. 8. Sec. 1558; 66 v. 151.] FORM OF ORDER OF ORGANIZATION. . The Board of Commissioners of the County of...........++.. proceeding this day to hear the matter of the petition of............++-- and others to obtain the organization of the territory in their petition described, into a village, in accordance with law, and having in open meeting, heard all persons desiring to be heard for or against the granting of said petition, and considered the affidavits presented with reference thereto, and being fully advised, find that said petition contains all the matter required by law; that its statements are true; that the name of said proposed village, which is given in the petition, is appropriate; that the limits of the pro- posed corporation are accurately described and are not unreasonably large or small; that the map of the same, filed with the petition, is accurate; that a sufficient number as required by law of the persons whose names 5k INCORPORATION. § 3523 are subscribed to the petition, are electors residing within the territory described in the petition; that the required legal notice of the petition has been given, and that the population of said proposed corporation is Bere The ates vleos ate , which is a sufficient number; And it further appearing to the Board that it is right and proper that said petition should be granted, it is hereby ordered that the prayer of said petition be granted, and that the territory described in said petition why be organized into a village to be known as the “Village of............... as prayed for in the petition, and that a certified transcript signed By a majority of this board of all the orders and proceedings of this board relative to said petition and hearing thereon, together with said petition, and map attached thereto, and all papers on file relating to said matter, be transmitted at once to the recorder of the county. (If the petition is rejected the form may be adapted to suit this con- tingency. ) Sec. 3523. [What shall be entered on journal; papers filed with recorder.] The commissioners shall cause to be entered on their journal all their orders and proceedings! in relation to such incorporation, and they shall cause a certified tran- script thereof, signed by a majority of them, to be delivered, together with the petition, map and all other papers on file relating to the matter, to the recorder of the county, at the earliest time practicable. [R. 8S. Sec. 1559; 66 v. 151, §§ 15, 197] ; (1) Not subject to review.—Pro- are therefore not subject to review ceedings had by county commis-_ on petition in error. Bring et al. sioners with respect to the incor- v. Hollis et al., 21 C. C. (N. S.) 52; poration of a village are political 4 Oh. App. 45. in their nature and not judicial, and Sec, 3524. [When recorder to make record.] The recorder shall file the transcript and other papers in his office, and at the expiration of sixty days thereafter, unless enjoined as hereinafter provided, he shall make a record of the petition, transcript, and map in the proper book of records and preserve in his office the original papers delivered to him by the commis- sioners, certifying thereon that the transcript, petition, and map are properly recorded. [R. 8S. Sec. 1560; 66 v. 151.] Sec. 3525. [When deemed organized.] When the record is made, the corporation shall be deemed the village of , to be organized and governed under the provisions of this title. Thereupon the recorder shall make, and certify under his § 3526 THE OHIO MUNICIPAL CODE. 52 official seal, two transcripts of the record, one of which he shall forward to the secretary of state, and, on demand, de- liver the other to the agent of the petitioners, with a certificate thereon that the duplicate has been forwarded to the sceretary of state. When a municipal corporation is organized by the election of its officers, notice of its existence shall be taken in all judicial proceedings. [R. 8. Sec. 1561; 66 v. 152, §$ 17, 18.] Sec. 3526. [Petition to township trustees for incorporation. ] When the inhabitants of any territory or portion thereof desire that such territory shall be incorporated into a village, they shall make application, by petition, to the trustees’ of the township in which the territory is located, or, if the territory is located in more than one township, to the trustees of the township in which the majority of such inhabitants reside. Such petition shall be signed by at least thirty electors of the territory, a majority of whom shall be freeholders, and shall be accompanied by an accurate map’ of the territory, and shall contain in addition to the matter hereinbefore required to be set forth in petitions to incorporate territory laid off into village lots, the request of the petitioners that an election be held to obtain the sense of the electors upon such incorpo- ration. Such petition may be presented at a regular or special meeting of the township trustees. [R. S. Sec. 1561a; 94 v. 18; 92 v. 333.] (1) Filing petition.—The clerk of the township is the clerk of its board of trustees and the petition before a week has elapsed, will not lie to compel action. State ex rel. .y. Trustees, 19 C. 'C. 742. and map are sufficiently filed and presented to the township trustees, if filed with the township clerk. State ex rel. v. Mitchell, 22 C. C. 208, The fact that the petition and map were, after being filed, returned to the person filing as a matter of convenience in carrying it to the board meeting, would not invalidate the filing. Jb. Time to consider petition, must be allowed trustees, and mandamus, Rival petitions.—Where two le- gal petitions are filed the trustees must act on the one filed first, and no further action can be taken until that petition is disposed of; and mandamus will lie in such case to compel the trustees to act on the first petition. State ex rel. v. Mitch- ell, 22 C, C. 208. Purpose of the section.—The purpose of the statute was to allow a part of a township to be formed into a municipal corporation, and it 53 INCORPORATION. § 3527 is against public policy to form the (2) Defective Map.—lIf the entire township into such corpora- map filed is not accurate it may be tion in order to defeat this purpose. supplemented by a more perfect one, State ex rel. v. Mitchell, 22 C. C. before action is taken by the trus- 208. tees. State ex rel. v. Mitchell, 22 C. See note to § 3516. C. 208, FORM OF PETITION TO TOWNSHIP TRUSTEES FOR INCORPORATION OF VILLAGE. To the Trustees of the Township of...... att se , State of Ohio: The undersigned, being thirty [or more] electors, a majority of whom are freeholders and all of whom reside within the following described térri- tory situated within the County of ................ , State of Ohio, to-wit: (Here insert accurate description of territory embraced within the pro- posed corporation); an accurate map of which territory is attached hereto, respectfully represent that the number of inhabitants residing within said territory is..........:. and respectfully petition your honor- able body that said territory may be organized into a village in the manner provided by law, and that the name of said village may be the “Village SPUN GTs ATOR 2. ae. »’ and hereby designate.............. and)! (98 im their agents to act for them in all matters relating to the hearing upon this petition and in other matters relating to the incorporation of said territory into a village; and further petition your honorable body that an election may be ordered to obtain the sense of the electors of said territory upon the question of its incorporation into a village as prayed for in this petition. (This petition must be signed by at least thirty electors residing in the territory to be organized into a village, a majority of whom must be free- holders. ) (A map of the territory described, marked “Map of territory to be or- ganized in the village of............ ,»’ should be attached to the petition.) Sec. 3527. [Procedure upon receipt of petition.] When the township trustees receive the petition, with the proof that the. persons who signed it are electors, and reside within the limits of the proposed incorporation, and that a majority of them are freeholders, they shall make and order that such territory shall, with the assent of the qualified voters thereof as hereinafter provided, be an incorporated village by the name specified in the petition. They shall also include in such order, a notice for the election by the qualified voters residents in the territory, at a convenient place therein to be by them named, on a day within fifteen days thereafter, to determine whether such territory shall be incorporated. The § 3527 THE OHIO MUNICIPAL CODE. 54 township trustees shall give ten days’ notice’ of such election by publication in a newspaper of general circulation in such territory, and cause written or printed notices thereof, to be posted in three or more public places in such territory pro- posed to be incorporated. [R. 8. Sec. 1561b; 92 v. 333.] (1) Defect in notice—Failure to only, where there is no showing that publish notice of an election as to the result of the vote would have a proposed incorporation for the been in any way changed had pub- full ten days required by statute lication been made for the full time. will be treated as an irregularity Libby v. Paul, 17 N. P. (N. S.) 4383. FORM OF FINDING AND ORDER OF TRUSTEES. Wuereas, A petition has been presented to the trustees of the township Oi iogse. 25.“ y Comnty Ofuiy «jks cake , Signed by......-..+-- and others, praying that the following described territory: (Here copy description of territory given in the petition), may be incorporated into a village as pro- vided by law; and : Wuereas, Said trustees after hearing all evidence submitted are fully satisfied that the persons who signed the said petition are electors residing within the territory proposed to be incorporated into a village and that a majority of them are freeholders therein; Now therefore be it Resolved: Sec. 1. That the said territory be, and the same is hereby made and ordered to be an incorporated village by the name of the “Village of .............- ,? with the assent of the qualified voters thereof. See. 2. That an election be held on the......... dayeoks aed sete t sl MPS« (this date must be within fifteen days after the date of the resolution), to obtain the sense of the electors of said territory on the question of in- - corporation of said territory into the village of................ and that such election be held at (here insert place of holding election). See, 3. That notice of the time and place of holding such election be given by publication in............ , a newspaper of general circulation in said territory and by posting written [or printed] notices thereof in three or more public places in said territory proposed to be incorporated. (The notice must be for a period of ten days.) Passed this........ aay Of..i-t1 <> 19.... (To be signed by the Trustees of the Township. Attested by Clerk.) FORM OF NOTICE OF ELECTION. LEGAL NOTICE. Notice is hereby given that on the........ RS eee settee f Bilis Suieinss acaba (here insert place of holding election), in the township of..........-+++- County of 2 70)0..5504. , an election will be held to determine whether the following described territory shall be incorporated into a village to be 55 INCORPORATION. § 3528 known as the “Village of........... »’ to-wit: (Here copy description of territory given in the petition.) By order of the trustees of the township of............ by the trustees of the township, and attested by the clerk). (to be signed Sec. 3528. [Election; form of ballot.] The township trus- tees shall be judges of the election, and the township clerk shall be clerk thereof. As far as practicable, the election shall be conducted in the manner prescribed for the election of township officers, and the ballot shall contain the words ‘‘For ineorporation’’ and ‘“Against incorporation.’’ Ifa majority of the ballots cast at such election shall contain thereon the words ‘‘Against incorporation,’’ the voters of such territory shall be deemed not to have assented to the incorporation thereof, and no further proceedings shall be had in relation thereto, but this shall not be a bar to other proceedings for the same purpose. [R. S. Sec. 1561c; 92 v. 334.] Sec. 3529. [Proceedings if result is affirmative.] If a ma- jority so cast have thereon the words, ‘‘For incorporation,”’ the township trustees shall cause to be entered on their journal, a minute of all their proceedings, the number of votes cast at the election, the number of votes cast for incorporation, and the number cast against incorporation, and they shall then declare that such territory shall from that time be deemed an incorporated village, and shall make an order declaring that such village has been incorporated by the name adopted." [R. S. §1561e; 92 v. 334.] not be granted. Lawrence v. Mitch- ell, 8 N. P. 8. See State vy. Mitchell, 22 C. C. 208. (1) Injunction against elec- tion.—In view of the statutory remedies provided in § 3531, by which the right to petition the Court of Common Pleas for re- view of proceedings had for incor- poration is given, an injunction to restrain the election by the voters of the territory to be incorporated or- dered by the township trustees can Constitutionality.—Sections au- thorizing incorporations under pro- ceedings before township trustees held not unconstitutional as a dele- gation of power by the Legislature. Lawrence y, Mitchell, 8 N. P. 8. § 3530 THE OHIO MUNICIPAL CODE. 56 FORM OF DECLARATION AND ORDER OF TRUSTEES. Wuereas, An election was held in the township of ........... . County Gives ie gha oh , State of Ohio, on the......... GRY Ole cinadinn 19...., to de- termine whether the following described territory shall be incorporated into a village to be known as the “Village of ........-.-- ”? to-wit: (Here copy description of territory given in the petition and election notice) ; and WuerEas, At said election ........ votes were cast, .......--- of which were in favor of said incorporation and......... of which were against the same, a majority being in favor of said incorporation, Now therefore, it is hereby ordered and declared that said territory shall henceforth be deemed an incorporated village, and It is further ordered and declared that such village has been incorpo- rated by the name of the “Village of........... .”? and a certified tran- script of the journal entries of all the proceedings of this board in this matter, together with the original petition and plat, shall be delivered to the Recorder of the County of........-- (This should be signed by the trustees and attested by the clerk.) Sec. 3530. [Transcript and record.]* The trustees shall make a certified transcript of the journal entries of all their proceedings and a majority of them having signed it, with the original petition and plat, they shall deliver it to the county recorder, who shall forthwith make a record of the petition, transcript and plat or map, in the public book of records, and preserve in his office the original papers delivered to him by the trustees, and certify thereon that the transcribed petition and map are properly recorded. When the recorder has so made such record, he shall certify and forward to the secretary of state a transcript thereof. [R. S. §156le; 92 v. 334. | (1) Transcript, requirements of.— majority of them are freeholders, Proof that persons who signed the need not be set out in the transcript petition for incorporation are elect- filed with the recorder. Libby v. ors, and reside within the limits of Paul, 17 N. P. (N. S.)°433. the proposed incorporation, and a Sec. 3531. [When becomes a village; proceedings to enjoin. ] The corporation shall then be a village under the name adopted in the petition with all powers and authorities given to villages by this title, but.no injunction shall be brought, as herein provided in case of filing the transcript with the county commissioners, unless the action be instituted within ten days from the filing of the papers by the trustees with the 57 INCORPORATION. § 3532 county recorder, but the right of petition to the court of com- mon pleas for error shall exist as provided in the following sections of this chapter... [R. S. §1561c; 92 v. 334.] mon pleas court, see Wells v. Brill, 8 N. P. (N.S.) 454. (1) Scope of review by com- Sec. 3532. [Injunction against recorder.] Within sixty days from the filing of the papers by the county commission- ers with the recorder, any person interested may make appli- cation by petition to the court of common pleas, or, if during vacation, to a judge thereof, setting forth the errors com- plained of, or the inaccuracy of the boundaries, or that the limits of the proposed corporation are unreasonably large or small, or that it is not right, just, or equitable that the prayer of the petition presented to the board of commissioners be granted, or containing any or all of such averments, and pray- ing an injunction restraining the recorder from so making the record and certifying the transcript.’ 92 v. 196; 66 v. 152.] (1) Scope of injunction.—In an injunction under this section, the case made before the commissioners cannot be retried upon its merits and an injunction cannot be allowed except for errors or irregularity in the proceedings or any inaccuracy in the description of territory sought to be incorporated. Hulbert v. Ma- son, 29 O. S. 562. Unreasonably large territory.—A proposed incorporation of three thousand acres is not unreasonably large, where there is a population of six hundred, and the allotments cover six hundred acres, and the character of the property is rapidly changing; nor is ground afforded for refusing a prayer for incorpora- tion because some of those owning farm lands will be inconvenienced by reason of the fact that they do their shopping in a neighboring vil- lage and their social relations are [R. S. Sec. 1562; maintained there. Libby v. Paul, 17 N. P. (N. S.) 483. No appeal.—No appeal lies from the judgment of the court or judge, allowing or refusing the injunction. The application to the court is not in the nature of a bill in equity or of a civil action, but of a proceeding in error. Hulbert v, Mason, 29 O. S. 562. Contents of petition.—Petition should set forth specifically the er- rors complained of, and should not state merely that errors were com- mitted. Hulbert v. Mason, 29 O. S. 562. Interest required.—It is not necessary that plaintiff should have a direct, pecuniary interest in prop- erty within the proposed corpora- tion to constitute a “person inter- ested,” and one residing and owning property two miles distant there- from whose taxes will be increased. § 3533 THE OHIO MUNICIPAL CODE. 58 has such an interest. Hall v. Sie- subject to review by the courts, is grist, 13 Dec., 46. not void, and cannot be collaterally Collateral attack.—The order impeached. Blanchard v. Bissell, 11 of the county commisioners though 0.5%. 96. FORM OF PETITION FOR INJUNCTION. Court. of Common: Pleas, .........-scceseuss County, Ohio. eee errer eer seer reer eee ee eres aon SG tote sts WTS oh PETITION. Recorder of the County | Defendant. Plaintiff says that certain territory within the County of..........-..++ [or the township of............ , in the County of......-.+-+0- ], is sought to be organized into an incorporated village under the name of the “Village A certified transcript of the proceedings of the County Commissioners [or of the township trustees] in relation thereto, together with the petition for such incorporation, and all maps and papers relating thereto are now in the hands of the Recorder of this County for record. Plaintiff further says that he is a resident of the territory sought to be incorporated as aforesaid, and is interested in the matter of such incor- poration. And plaintiff further says that there is error in the said proceedings in this, to-wit: (Here state specifically the error complained of.) Wherefore, plaintiff prays that an injunction may issue restraining the recorder from making a record of the said proceedings and certifying the transcript thereof as provided by law. 0 ers (we pea a ae « oF ale Shes aPete Ge Mie RDA ey er Sees 6 [ Verification. ] Attorney for Plaintiff. (If suit is brought Ww ,ze.c4% incorporation upon petition to County Commissioners the same must be filed within sixty days from the filing of the papers with the recorder, § 3532; if to prevent incorporation upon petition to township trustees, it must be filed within ten days from the filing of the papers with recorder, § 3531). Sec. 3533. [Proceedings in such case.] When the petition is filed, the person filing it shall give notice thereof, in writing, to the recorder and the agent of the petitioners for the cor- poration. On receiving such notice, the recorder shall forth- with transmit to the clerk of the court where the petition for injunction is pending, all the papers relating to the matter on file in the recorder’s office, and in that event, no record 59 INCORPORATION. § 3534 of the papers shall be made by the recorder, or transcript certified by him, as hereinbefore provided, unless he receive a certificate from the clerk of the court, showing that the in- junction has been denied. [R. S. Sec. 1563; 66 v. 152.] FORM OF NOTICES OF PETITION. Moshe Réecondervios she Coun Gy, cot iis iis ego's aselite-etsvele! casio You are hereby notified that a petition has been filed a the undersigned, GI ENC fornia sighs « GRY Olwcs sy 19...., in the Court of Common Pleas, in the CREME POEs ress oe oes a , State of Ohio, praying therein for an injunction restraining you from making a record of the proceedings for the incorpora- tion of the village of.............. or certifying transcripts of such record. Whos Co Bid Bats She alin Oye , Plaintiff. | CS ee ONG e Sis gsi , agents of phe petitioners for the incorporation OUATOR WIA GG0 OE 3) ote ets age Tincas «hye gt You are hereby notified that a jetition has been filed by the under- signed on the...... GAY OL fled tc a'e's 19...., in the Court of Common Pleas, EERO SOGUBUT GE. oi. nce © aves ss , State of Ohio, praying therein for an in- junction restraining the Recorder of............. County from making a record of the proceedings for the incorporation of the village of.......... or certifying transcripts of such record. Babb bot ad. eh fei Plaintiff. Sec. 3534. [Filing, docketing and hearing of petition.] The court or judge shall cause the petition to be filed and docketed in the office of the clerk of the courts, and shall hear the petition at such time as he shall appoint, not less than twenty days from the filing thereof. Upon such hearing the court or judge may hear evidence upon the matters and things averred in the petition. If no error is found in the proceed- ings before the commissioners, and no inaccuracy in the bound- aries, and if the court further finds that the limits of the pro- posed corporation are not unreasonably large or small, and that it is right, just and equitable that the prayer of the pe- tition presented to the commissioners be granted, the petition for such injunction shall be dismissed. Thereupon the clerk shall return the papers to the recorder, with a certified tran- script of the order of the court, and the recorder shall immediately record the transcript certified by the commis- sioners, the petition for the corporation, the map, and the order of the court, and make, forward and deliver the tran- scripts as hereinbefore provided. [R. S. Sec. 1564; 92 v. 196; 66 v. 152.] § 3535 THE OHIO MUNICIPAL CODE. 60 Sec. 3535, [Proceedings if error is found.] If error is found in the proceedings, or if the boundaries are found to be so inaccurately described as to render indefinite or uncertain the limits or extent of the proposed corporation, or if the court shall find that the limits of the proposed corporation are unreasonably large or small, or that it is not right, just or equitable that the prayer of the petition presented to the com- missioners be granted, the court or judge shall make an order enjoining the recorder from making the record. Such order shall not be a bar to subsequent applications to the commis- sioners for the purpose of effecting such incorporation. The court or judge shall render such judgment as to the payment of the cost incurred in such proceeding for injunction as he deems just and equitable. [R. S. Sec. 1564; 92 v. 196; 66 v. 152.] Sec. 3536. [Election of officers.] The first election of of- ficers for such corporation shall be at the first municipal elee- tion after its creation, and the place of holding the election shall be fixed by the agent of the petitioners. Notice thereof, printed or plainly written, shall be posted by him in three or more public places within the limits of the corporation, at least ten days before the election. The election shall be con- ducted, and the officers chosen and qualified in the manner prescribed for the election of township officers, and the first election may be a special election held at any time not exceed- ing six months after the incorporation, and the time and place of holding it shall be fixed by such agent, and notice thereof shall be given as is required herein for the municipal election. [R. S. Sec. 1565; 73’v. 157. ] Sec. 3537. [When territory embraces parts of more than one county.] When the inhabitants residing upon adjacent portions of territory, in two or more counties, laid off into village lots, a plat or plats of which have been acknowledged and recorded, as hereinbefore required, desire the organization of such territory into a village, the petition therefor shall be made to the commissioners of the county in which the largest number of qualified voters of the proposed corporation reside, and a statement to that effect shall be set forth in the petition. The transcript of the proceedings of the commissioners, and 61 INCORPORATION. § 3538 the map or plat accompanying it, shall be recorded in the county in which the petition is filed, at the time and in the manner provided for in other cases. Within ten days there- after, the recorder of such county shall make a certified sranscript of such record for each of the other counties in which any portion of the territory is situated, and forward it to the recorders of such counties, to be by them recorded in the manner required for original papers. [R. S. Sec. 1566; 66 v. 153.] Sec. 3538. [Other proceedings to establish or review.] In all other respects, the proceedings to establish the corporation, or review the action of the commissioners, shall be as provided in cases where all the inhabitants residing on the territory to be organized into such corporation, reside in one county. [R. S. See. 1567; 66 v. 153.) Sec. 3539. [Power of officers as in other cases.] When the jurisdiction of municipal officers is co-extensive with the county in which the corporation is situated, their jurisdiction in cor- porations embracing territory of more than one county shall be co-extensive with each of the counties in which any part of such territory is located.’ [R. S. See. 1568; 66 v. 153.] (1) Jurisdiction in error proceed- ings.—In a prosecution before the mayor of a village situated in two counties, prosecution of error must be in the courts of the county in Under this section mayor has juris- diction in prosecutions in each county in which any part of the territory of the municipality is located and hearing may be had in which the public offices of the vil- lage are located. Theobald v. State, 12 N. P. (N. S.) 390. Jurisdiction in liquor cases.— any portion of the municipality though not within the county in which the offense was committed. State v. Pape, 105 O. S. 515. Sec. 3540, [Fees; how paid.] Each officer shall receive for the services required of him under this division, the same fees he would be entitled to for similar services in other cases. Unless such fees are paid in advance, for services under this chapter, by the agent of the petitioners, of whom demand may be made, and by some person interested for services under other chapters of this division, the officer shall not be required to perform the service. [R. S. Sec. 1569; 66 v. 153.] § 3541 THE OHIO MUNICIPAL CODE. 62 Sec. 3541. [Proceedings to change name.] When it is de- sirable to change the name of.a city or village, a petition* for the purpose, subscribed by at least twelve freeholders of the corporation, setting forth the reasons why such change is desirable, shall be filed in the court of common pleas of the county in which the corporation, or the larger part thereof, is situated. A notice, setting forth the object of the petition- ers, and the time when and place where the petition will be heard, shall be published for thirty days previous to the hear- ing, in a newspaper of general circulation in the corporation. [R. S. See. 1570; 99 v. 475; 40 v. 28.] (1) Form of petition and notice.—See Sec. 3542. Sec. 3542. [Power of court; saving rights.] Upon being satisfied by proof that the prayer of the petitioners is just and reasonable, that notice as required in the foregoing section, has been given, that at least three-fourths of the inhabitants of such corporation desire the change, and that there is no other municipal corporation in the state having the name prayed for, the court may order such change to be made. The clerk of the court shall thereupon tax the petitioners with the costs, and record the proceedings in a book to be kept by him for the purpose. Such change shall not alter or affect any right, liability, action, or right of action, civil or crim- inal. [R.S. See. 1571; 40 v. 28.] FORM OF PETITION TO CHANGE NAME. Court of Common Pleas, erases nsec. 5 County, Ohio. In re Change of Name of the City [or Village] of Petition. aA RO acai , Ohio. The undersigned, freeholders of the City [or Village] of ............ , Ohio, situated (or the larger part of which is situated) in said ................ County, hereby respectfully represent that it is desirable to change the name of said city [or village] to the ‘‘City [or Village] of ................ = (here state name desired), for the following reasons, to-wit: (Here state reasons for change.) Wherefore, your petitioners pray that the court may make an order changing the name of said city [or village] as hereinabove stated. (This petition must be signed by at least twelve freeholders of the cor- poration.) 63 INCORPORATION. § 3543 FORM OF NOTICE OF PETITION TO CHANGE NAME. Court of Common Pleas, ............ County, Ohio. In re Change of Name of the City [or Village] of Legal Notice. SEITE POhiGw a. | Notice is hereby given that onthe ........ OSE Ola sh hits tec Ae RUlo bee a petition signed by .........:....... and others, freeholders of the Git Wer MEAG. OF tani Roce hy) 2 ss By as wie She County, Ohio, was duly filed in the Court of Common Pidas of said county, praying for an order changing the name of said city [or village] to the,‘‘City [or Village] of ............ te for the reasons following, to wit: (here state reasons given in petition). Said petition will be for hearing before said court on the ...... . day of LF Serer , 19...., (at least 30 days after the date of publication of notice) at oo... o’clock .... M. at the courthouse of said county in the CHORE. AQ FA IES 2) 2 (This notice must be published at least two consecutive weeks in a newspaper of general circulation in the corporation. See Sec. 4229.) FORM OF ORDER CHANGING NAME. Court of Commom Pleas, ................ County, Obio. In re Change of Name of the City [or Village] of Entry. ee Nae , Ohio. } This day this cause came on to be heard on the petition of .............. and others, freeholders of the City [or Village] of ............ , in said county, praying for the changing of the name of said city [or village] to the “City [or Village] of ............ ”, and upon the evidence, and was sub- mitted to the court. Whereupon, the court, being duly advised in the premises, finds that said petition is signed by at least twelve freeholders of said corporation; that notice of the filing, object and hearing of said petition has been given as required by law; that the prayer of said petition is just and reasonable; that at least fvacetenisiies of the inhabitants of said corporation desire such change, and that there is no other municipal corporation in the state having the name prayed for. It is accordingly ordered that the name of said City [or Village] of........ be, and the same is hereby changed to the ‘City [or VoUGERL OL carats ovten ee It is further ordered that said petitioners pay the cost of this nkaodtdini taxedat Sincere. estas Sec. 3543, [Error in proceedings does not render void; when.] No error, irregularity or defect in any proceeding for the creation of a municipal corporation shall render it in- valid if the territory sought to be incorporated has been rec- § 3544 THE OHIO MUNICIPAL CODE. 64 ognized as such corporation, and any tax levied upon it as such has been paid, or it has been subjected to the authority of the council without objection from its inhabitants. [R. S. See. 1571a; 80 v. 92] Sec. 3544. [Division of funds when a village is created from township or townships.]' When a village has been cre- ated out of a portion of a township, or portions of more than one township, a proper division of the funds for township purposes in the treasury, or in the process of collection, of the township or townships from which the territory has been taken, shall, upon application of the village to the probate court of the county in which the territory is situated, be de- termined and ordered paid over to the treasurer of the vil- lage. In determining the portion of such funds to which the village is entitled, the indebtedness of each township shall be taken into consideration. Ten days’ notice of such hearing shall be given by the treasurer of the applicant to the treasurer of each township whose funds are sought to be divided. The findings and orders of the probate court shall be final. [R.S. Sec. 1565a; 98 v. 129.] (1) Validity—Held constitu- 22 G.. GC. GN, S. a0: tional. Northfield v. Macedonia FORM OF APPLICATION FOR DIVISION OF TOWNSHIP FUNDS. Probate Sour seen my eae County, Ohio. ™m re Application of the ) Valeri Ol cng Suiits waste oar team : \ Application. for division of township funds. | Now comes the village of ............ in said county and state, and represents to the court that it is a village under the laws of Ohic; that said village was created out of a portion of ............ township (or out of por- HLOTBS OLE MAH ees ee and 4 }.ca-y See townships) ‘in ‘saidi 242928 Mae... county, Ohio; that no apportionment of the funds of said township (or town- ships) has been made, and that said village is entitled to have the same apportioned and a proper portion thereof paid over to the treasurer of said village. Wherefore, it prays that the court will make an order apportioning the funds aforesaid, and providing for the payment of the portion of the fund due said village ta the village treasurer. Village Solicitor. 65 ; INCORPORATION. § 3545 FORM OF NOTICE OF APPLICATION. MocthewTeasuretsOl coickcls ofraare< CROWNS OIDs sees ee ee County, Ohio: You are hereby notified that on the ........ davot 7hime tama 3 Pier be Vie Of cas eee , in said county and state, filed its appli- cation in the probate court of said county, praying for an order apportion- ing to it such portion of the funds of said township to which the said village was entitled, and that said application will be for hearing before said court On: then s7igcetiee aynOh orayet oA w-a Petey tz , 19..... (at least ten days after the date of service of notice). FORM OF ORDER APPORTIONING FUNDS. FREGDALGAVOUL Gy 44) asain «adie, ..... County, Ohio. In re Application of the | WELCH fet oc, oo AS PS le as >t. Hantry: for division of township funds. | This cause came on to be heard on the application of the Village of ...... for an order apportioning to it a portion of the funds of ............ town- ship, and the court, being fully advised, finds the averments of said appli- cation to be true and that said village is entitled to such apportionment as prayed for. It is accordingly ordered that of the funds in the treasury of said town- ship and in process of collection, there be, and there is hereby apportioned to said village the sum of $........ , which amount the treasurer of said township is hereby ordered to pay over to the treasurer of said village (time of payment to depend on whether funds are in the treasury or in process of collection). Sec. 3545. [Incorporation of territory surrounding summer resort; election; notice.] Any territory requiring police pro- tection and containing a population of not less than fifty per- sons and immediately surrounding a summer resort, park, lake or picnic ground, kept regularly for such outing and pleasure, may incorporate by setting up notices of an election in three of the most public places in the territory proposed to be in- cluded in the corporation signed by five citizens and electors of the territory. Such notices shall be posted at least ten days before the election, stating time and place where the election shall be held, and shall contain an accurate descrip- tion of the territory proposed to be taken into the corporation. [R. S. See. 1566a; 95 v. 469.] § 3546 THE OHIO MUNICIPAL CODE. 66 Sec. 3546. [Conduct of election; ballots.] The election shall as far as practicable be conducted in the manner pre- scribed for the election of township officers. The electors present shall choose three judges and two clerks from the elect- ors present to act as judges and clerks of such election, and the ballots shall contain the words: ‘‘For incorporation’’ and ‘‘ Against ineorporation.’’ If the majority of the ballots cast at such election contain the words ‘‘For incorporation,’’ it shall be deemed that the citizens of such designated territory have assented to such incorporation. If the majority of the ballots cast at such election contain the words ‘‘ Against in- corporation,’’ it shall be deemed that the people of such desig- nated territory have not assented to the incorporation thereof. All laws governing the creation and regulation of incorporated villages shall have full force and effect insofar as they are not inconsistent and do not conflict with the provisions of this chapter. [R. S. Sec. 1566a; 95 v. 469.] 67 ANNEXATION OF TERRITORY. § 3547 CHAPTER 3. ANNEXATION AND DETACHMENT OF TERRITORY. Sec. 3547. [Annexation and detachment of territory.] Ter- ritory may be annexed to, or detached from, municipal corpo- rations, in the manner provided in this chapter. [96 v. 21, § 6.] ANNEXATION ON APPLICATION OF CITIZENS. Sec, 3548. [Annexation of adjacent territory; petition.] The inhabitants residing on territory adjacent? to a munici- pality may, at their own option, cause such territory to be annexed thereto, in the manner hereinafter provided.2 Appli- cation shall be by petition, addressed to the commissioners of the county in which the territory is located, signed by a majority of the adult freeholders residing on such territory, and shall contain the name of a person authorized to act as the agent* of the petitioners in securing such annexation, and a full description of the territory, and be accompanied by an accurate map, or plat thereof.+ §§ 679, 680.] (1) Adjacent territory.—Terri- tory on the other side of a navi- gable stream would be contiguous or adjacent territory, which might be annexed. Blanchard v. Bissell, 11 0, S. 96. (2) Constitutionality.—Annex- ation of territory to a municipality is not unconstitutional though pri- vate property in the annexed terri- tory is thereby made liable for taxes to pay prior debts of the mu- nicipality and though the owner of the property so taxed might not have been qualified to vote on the question of annexation, because a non-resident. Powers v, Wood Co., [R. S. Sec. 1589; 66 v. 264, 8 O. S. 285; Blanchard vy, Bissell 1140. 55.96. Consent of inhabitants of terri- tory to be annexed is not necessary unless required by statute and their remonstrance will not invali- date the annexation. Blanchard v. Bissell, 11 O, S. 96, (3) Agent.—This provision held not applicable to annexation on ap- plication of a corporation. Pollock v. Toland, 25 C, C. 75; 1 C. C. (N. S.) 3816. (4) Effect of annexation.— School district—A school district is not divided because a part of it is annexed to a city or village. , § 3549 State v, Raine, 4 C. C. 72 (aff’d 29 B. 108.) See Hamlin v. State, 22 B. 279. Roads.—Public roads in the ter- ritory annexed become public high- ways of the city or village, without being “accepted and confirmed by ordinance.” Steubenville v. King, 23 O. S, 610. Part of a county road coming within a city by annexation is sub- ject to the city’s control and im- provement... R. R. Co. v. Defiance, 10 C. C. 27; and city may assess for its improvement. Ridenour v. Saffin, 1 H. 464; county commis- sioners can not sue for obstruction of part of road brought within a city or village. R. R. v. Comm’rs, 35 O. S. 1; but turnpike company’s rights are not extinguished without appropriation. Tp, Co. v. Cincin- nati, 4 Rec. 325; though a toll gate cannot lawfully be maintained on territory brought into a municipal- ity by annexation. Turnpike Co. v. Kelley, 41 0. S. 144. THE OHIO MUNICIPAL CODE. 68 Justice of the Peace.—See Reed v. Maxfield, 32 B. 50; State v, Da- vies, 12 C, ©. 218; Pfeiffer v. Green, 3 N. P. 156. Taxation.—When the boundaries of a municipality are extended prior to the date of the certification of the levy of municipal taxes, no spe- cial provision is necessary to au- thorize the levy of taxes on the an- nexed property, and the county au- ditor may be compelled by man- damus on relation of the munici- pality to levy on the annexed prop- erty the municipal instead of the township tax. State ex rel. v. Craig, 21 C. C. 13. When annexation complete.— On the passage and legal publica- tion of the municipal ordinance, ac- cepting the application for annexa- tion of adjacent territory, such ter- ritory becomes a part of the munic- ipality, although the map, tran- script and other papers are not filed until a later date. State ex rel. v. Craig, 21 C, C. 13. FORM OF PETITION BY INHABITANTS FOR ANNEXATION. To the Commissioners of.......... ..County, State of Ohio: The undersigned, being a majority of the adult freeholders residing on the following described territory situated in the County of and adjacent to the city [or village] of ............ , to-wit: (Here insert accurate description of territory to be annexed.) An accurate map of which territory is hereto attached; Respectfully petition that the said above described territory may be annexed to the city [or village] of.. eee eee eer res ING Seis alee the is hereby authorized to act as agent of the petitioners in securing such annexation. (To be signed by a majority of the adult free- holders residing in the territory to be annexed.) A map marked “Map of territory to be annexed to the city [or village] Miner tescrn, kore ees ,»’ should be attached to the petition. Sec. 3549. [Petition to be presented to commissioners; pro- ceedings.] The petition shall be presented to the board of commissioners at a regular session thereof, and when so pre- 69 ANNEXATION OF TERRITORY. § 3549 sented the same proceedings shall be had as far as applicable, and. the same duties in respect thereto shall be performed by the commissioners and other officers, as required in case of an application to be organized into a village under the provisions of this division.t The final transcript of the commissioners, and the accompanying map or plat and petition, shall be de- posited with the auditor or clerk of the municipality to which annexation is proposed to be made, who shall file them in his office.? [R. S. Sec. 1590; 66 v. 265, § 681.] (1) Section referred to.—This refers to §§ 3516-3546 inclusive, supra, (2) Construction of sections. —All the laws relating to the gen- eral subject of creation of villages and the annexation of territory to those already created are to be treated for purposes of construction as one act: Shugars v. Williams, 50 O. S. 297. The course of procedure at the hearing before the county commis- sioners directed by § 3521 is appli- cable also to such proceeding in the case of annexation. Ib. Provisions of § 1556 R. S. (now § 3520 G. C.) requiring deposit of petition with county auditor held not applicable to the case of proceed- ings for the annexation of territory on the application of a corporation. Pollock v. Toland, 1 'C. C. (N. S.) 315; 25 C, C. 75. Amendment of petition.—The authority given in § 3521 to amend the petition applies also to a peti- tion for the annexation of territory, and it is not necessary to the exer- cise of the discretion vested in the commissioners that an ordinance should previously have been passed authorizing the designated agents to apply for such amendment. Shu- gars v. Williams, 50 O. S. 297. Discretion of commissioners. —The decision of the commissioners is final on the merits of the case presented to them, and injunction is allowed only for errors or irreg- ularities in the proceedings. Hul- bert v. Mason, 29 O. S, 562. Posting of notice.—One of the provisions relating to the organiza- tion of villages, which is incorpo- rated by reference here, is that re- lating to the posting of notice of the application. In case of annexa- tion of territory, such notice must be posted on the territory proposed to be annexed. Franklin v. Croll, 31 0. S. 647. Annexation of detached territory. Where a petition to detach terri- tory from a village and erect it into a village was filed with the county commissioners before an- other petition to annex the greater part of said village including the territory described in the first peti- tion was also filed, the second peti- tion being filed two days before the council of the village gave its assent to the first petition, the second petition was entitled to be first heard. State v. McKenzie, 16 C Cr (NP 172. § 3550 THE OHIO MUNICIPAL CODE. 70 FORM OF NOTICE OF PETITION. LEGAL NOTICE. Notice is hereby given that on the........ Gsy-OFi. cose ere 19...., there was presented to the Board of Commissioners of the County OLS eae State of Ohio, a petition signed by a majority of the adult freeholders re- siding in the following described territory situated in the County of aes 5 Se and adjacent to the city [or village] of........----+++, to-wit: (Here copy description of territory contained in petition.) Praying therein that said territory be annexed to the city [or village] Ole ss s ote nae , in the manner provided by law and designating the under- signed as their agent in securing such annexation. The said Board of Commissioners has fixed the........ day of... «i... 19.... (not less than sixty days after petition is filed), as the time for hearing said petition at the office of the Commissioners Wiis 2 pene (here state place of hearing). oe fo 0 0 0 @.U 6b) se) Gla 6) Gke 6 Ste ee Pas Beene a ere Sam © Agent of the Petitioners. FORM OF ORDER OF COMMISSIONERS FOR ANNEXATION. The Commissioners of the County of........... State of Ohio, pro- ceeding this day to hear the petition of........... and others to obtain the annexation of the territory in their petition described to the city Lor Village], OL. «cui oe. 005 , and having in open meeting heard all the persons desiring to be heard for or against the granting of said petition and con- sidered the affidavits presented with reference thereto, and being fully ad- vised find that said petition contains all the matters required by law, that its statements are true, that the territory sought to be annexed is adjacent to the said city [or village] of...........-- ; that the petition contains a full description of said territory; that the map of said territory attached to the petition is accurate; that said petition is signed by a majority of the adult freeholders residing on the territory sought to be annexed; that the required legal notice of the petition has been given, and that it is right and proper that said petition should be granted. It is hereby ordered that the prayer of said petition be granted, and that the territory described in said petition may be annexed to the city [or vil- WAGe] OL. sede on sms in accordance with law, and that a certified transcript signed by a majority of this Board of all the orders and proceedings of this Board relative to said petition and hearing thereon, together with said petition and map attached thereto, and all the papers on file relating to said matter ba deposited at once with the auditor of the said city [or elerk of village]. Sec. 3550. [Duties of clerk and council.] At the next reg- ular session of the council of the municipality, after the ex- piration of sixty days from the date of such filing, the auditor Fi ANNEXATION OF TERRITORY. § 3551 or clerk shall lay the transcript and the accompanying map or plat and petition before the council. Thereupon the coun- cil, by resolution or ordinance, shall accept or reject the appli- cation for annexation. [R. S. Sec. 1591; 66 v. 265, § 682.] FORM OF ORDINANCE ACCEPTING APPLICATION FOR ANNEXATION. Ordinance NO see Accepting application for annexation of territory. Be it ordained by the council of the city [or village] of State of Ohio: Sec. 1. That the application of............ and others for the annex- ation of the following described territory in the County of.............. and adjacent to the city [or village] of ...........ccecccees » to-wit: (Here copy description of territory contained in the petition. ) An accurate map of which territory, together with the petition for its annexation, and other papers relating thereto, and a certified transcript of the proceedings of the County Commissioners in relation thereto are on file with the clerk of the council of said city [or the clerk of said village], be and the same is hereby accepted [or rejected]. Sec. 2. This ordinance shall take effect and be in force from and after the earliest period allowed by law. oe eee eee ese eee ese er eeeeeseeesrereeoeene President of Council. Sec. 3551. [Rejection of application; effect.] If the resolu- tion or ordinance rejects the application, no further proceed- ings shall be had, but such rejection shall not be a bar to application thereafter to the county commissioners on the same subject. [R. S. Sec. 1592; 66 v. 265, § 683.] Sec. 3552. [Proceedings when application is allowed.] If the resolution or ordinance is an acceptance of such application, the auditor or clerk of the municipality shall make two copies, containing the petition, map or plat accompanying it, tran- script of the proceedings of the commissioners, and resolutions and ordinances in relation to the annexation, with a certificate to each copy that it is correct, which certificate shall be signed by him in his official capacity, and be authenticated by the seal if any there be of the municipality. The auditor or clerk § 3553 THE OHIO MUNICIPAL CODE. 72 shall forthwith deliver one such copy to the recorder of the county, who shall make a record thereof in the proper book of records, and file and preserve it, and the other copy shall be forwarded by the auditor or clerk to the secretary of state. [R. S. See. 1598; 66 v. 265, § 684. ] Sec. 3553. [Petition to enjoin the proceedings.] If, within sixty days from the filing of such transcript, map, or plat and petition in his office, the auditor or clerk receives notice from any person interested that he has presented to the court of common pleas, or a judge thereof, a petition to enjoin further proceedings, he shall not report to the council such transcript, map, or plat and petition, until after the final hearing and disposition of the petition so presented to such court or judge.’ [R. S. See. 1594; 66 v. 265, § 685. ] (1) Scope of injunction, etc.—— Ritter v. Falkinburg, 49 B. 277; See notes under § 3532, ante. Hacker v. Payne, 27 O. C. A. 449; How petition presented.—Fil- 7. Oh. App. 25; 39 O. C. C. 424. ing petition with clerk of court is For form of petition see form un- not compliance with statute, but it der § 3532, ante. must be presented to court or judge. Sec. 3554. [Proceedings when petition dismissed.] If the court or judge make an order dismissing the petition, the elerk of the court shall immediately forward a certified copy of it to the auditor or clerk of the corporation, who, at its next regular meeting, shall lay before the council such tran- script, map, or plat, and the petition accompanying it, as if no petition had been so presented to the court or judge. [R. S. See. 1595; 66 v. 265, § 686.] Sec. 3555. [Proceedings when injunction allowed.] If the court or judge enjoin the auditor or clerk from making such report to the council, a certified copy of the order shall be immediately forwarded by the clerk of the court to the auditor or clerk of the corporation, who shall file it with the transcript, map or plat, and petition, and preserve it in his office, and thereupon no further proceedings shall be had in the matter. The order of the court or judge shall not operate as a bar to any applications thereafter to the commissioners of the county for such purpose. [R. 8. Sec. 1596; 66 v. 266, § 687.] 73 ANNEXATION OF TERRITORY. § 3556 Sec. 3556. [Rights of inhabitants if annexation allowed. ] When the resolution or ordinance, accepting such annexation, has been adopted, the territory shall be deemed a part of the municipality, and the inhabitants residing thereon shall have all the rights and privileges of the inhabitants within the original limits of the municipality. [R. S. Sec. 1597; 66 v. 266, § 688. ] Sec. 3557. [Where corporation is situated in more than one county.] If the corporation is situated in two or more counties, or the territory so to be annexed is situated in a different county from that in which the corporation or some part of it is situated, the proceedings, so far as practicable, shall be as hereinbefore directed in case of the organization of villages upon adjacent territory in two or more counties.2 [R. 8. See. 1598; 66 v. 266, § 689.] (1) For forms see note to § 3532, = ante. ANNEXATION ON APPLICATION OF CORPORATION. Sec. 3558. [Annexation of territory.] When the inhabit- ants generally* of a municipal corporation desire to enlarge its corporate limits by the annexation of contiguous territory, it shall be done in the manner hereinafter specified? [R. S. Sec. 1599; 95 v. 118; 74 v. 36, § 690.] (1) Desire of inhabitants. —No mode being provided for ob- taining the desire of the inhabitants, generally, the act of the council ex- pressing it, is sufficient. Croll v. Franklin, 40 O. S, 340. (2) Contiguous territory.— Territory separated from the munic- ipality by a navigable stream is “contiguous” territory. Blanchard v. Bissell, 11 O. S. 96. (3) Constitutionality.—Statute is not unconstitutional because it does not provide for submission of question of annexation to a popular vote. 419, What territory may be an- nexed.—The municipal limit may be extended over an unincorporated village. Blanchard y. Bissell, 11 O. S. 96. Effect of annexation.—See note 4 under § 3548, ante. Annexation of territory from one or more townships to a city— how funds and indebtedness of such are to be apportioned—how funds and indebtedness of school district are to be apportioned. Op. Atty. Gen. (1916) p. 918. State v. Cincinnati, 52 O. S. § 3559 THE OHIO MUNICIPAL CODE. 74 Sec. 3559. [Council may pass preliminary ordinance. ] The council of the corporation, by a vote of not less than a majority of the members elected, shall pass an ordinance authorizing such annexation to be made, and directing the solicitor of the corporation, or some one to be named in the ordinance, to prosecute the proceedings necessary to effect it [R. S. See. 1600; 74 v. 36, § 691.] (1) Successive applications.— The agent appointed contin- The ordinance authorizes successive ues to act though the county com- applications to the county commis- missioners are reversed by the sioners until the agent succeeds or courts, until final decision on the there is a final decision on the mer- merits. Ib. its. Croll v. Franklin, 40 O.-S, 340. FORM OF ORDINANCE AUTHORIZING ANNEXATION. Ordinance No...... To authorize annexation of certain territory to the city [or village] of Be it ordained by the council of the city [or village] of.............- 4 State of Ohio: Sec. 1. That the annexation of the following described territory: (Here insert description of territory to be annexed), to the city [or village] of ADGA oe tore eee be and the same is hereby authorized. Sec. 2. That the solicitor [or some other person named] be and he is hereby authorized to prosecute the proceedings necessary to effect such an- nexation. See. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed this...... Gay OES. rates <> » 19s. a President of Council. Attest edhe, 6 “a Gis tere» sp (b's (a.m 6) © Ole a).es ele, or 0)"e Sec. 3560. [Petition to county commissioners.] The appli- cation of the corporation to the county commissioners for such purpose shall be by petition, setting forth that, under an ordi- nance of the council the territory therein described was authorized to be annexed to the corporation. The petition shall contain an accurate description of the territory, and be accompanied by an accurate map or plat thereof. [R. S. See. 1601; 74 v. 36, § 692.] 75 ANNEXATION OF TERRITORY. (1) Agent.—Where a petition is presented on behalf of a city and consented to by the solicitor, it is § 3561 to act as agent of the petitioners. Section 3548 does not apply to an- nexation on application of a cor- not necessary that such petition contain name of person authorized C., poration. Pollock v. Toland, 1 C. (N. S.) 315; 25 C. C. 75. FORM OF PETITION BY THE CORPORATION FOR ANNEXATION OF TERRITORY. To the Commissioners of............. County, State of Ohio: here veor ‘vallage] Of... 5 eaperesec aes respectfully represents that by an ordinance duly passed by its council on the..... OE Sica. Stal cae 19 1.0.55 406 following described territory (here copy description of territory con- tained in the ordinance) was authoried to be annexed to said city [or village]. An accurate map of which territory is hereto attached, And said city [or village] respectfully petitions that said territory may be annexed to said city [or village]. City Lor village] OF sy. soPeie. astroces City [or village] Solicitor. Sec. 3561. [Proceedings before commissioners.] When the petition is presented to the commissioners, like proceedings shall be had, in all respects, so far as applicable, as are required in case of annexation on application of citizens in this chap- ter.t [R. S. See 1602; 66 v. 266, § 693. ] clerk, as provided in § 3549. Ship-, baugh v. Kimball, 19 Dec. 33, 7 N. (N. S.) 514, Injunction against proceedings, see § 3532, ante. (1) Sections referred to.—This refers to §§ 3548-3557 inclusive. And see notes under §§ 3548 and P. 3553, ante. Transcript of proceedings must be filed with municipal auditor or Sec. 3562. [Where corporation in more than one county.] When the corporation is situated in two or more counties, or the territory to be annexed is situated in a county other than that in which the corporation or some part of it is situated, the proceedings shall be in the county in which the territory to be annexed, or some part of it, is situated. [R. S. Sec. 1603; 66 v. 267, § 694.] Sec. 3563. [When territory lies partly in another county or counties.] When the territory sought to be annexed is partly in the county in which the corporation is situated and partly § 3564 THE OHIO MUNICIPAL CODE. 76 in another county, or counties, the proceedings shall be in that county in which there is the largest number of qualified voters residing upon the territory sought to be annexed. So far as practicable, such proceedings shall be as directed in case of the organization of villages upon adjacent territory in two or more counties. [R. S. Sec. 1608a; 85 v. 224.] Sec. 3564. [Rights when annexation complete.] When the annexation of such described territory has been completed, it shall be deemed a part of the municipal corporation, and the inhabitants residing on the territory shall have all the rights and privileges of the inhabitants residing within the original limits of the corporation. [R. S. Sec. 1604; 66 v. 267, § 695.] (1) Effect of annexation.—See invalidate the annexation. Blanch- note under § 3548, ante. ard v. Bissell, 11 O. S. 96. Taxes may be levied on the an- Rights of citizens in annexed nexed teritory to pay pre-existing portion of township. See Op. Atty. debts of the municipality. Powers v. Gen. (1921) p. 759. Pieod Ripe 0- es eae Jurisdiction of county commis- Consent of inhabitants.—The gioners over portion of a county fact that the inhabitants of the an- sewer district which has been an- nexed territory did not consent to exed, is lost. See Op. Atty Gen. the annexation and that it wasdone (1921) p. 387. against their remonstrance, does not Sec. 3565. [When errors not fatal to proceedings.] No er- ror, irregularity or defect in such proceedings shall render them invalid, if the addition has been recognized as part of the corporation, and taxes levied upon it as such have been paid, and it has been subjected to the authority of the council, without objection from its inhabitants. [R. S. See. 1605; 66 v. 267, § 696.] ANNEXATION OF ONE CORPORATION TO ANOTHER. Sec. 3566. [Annexation of territory to contiguous munici- pality.] When it is proposed to annex territory of a munici- pal corporation to a contiguous municipality such annexa- tion shall be effected in the manner hereinafter described. [109 v. 263; R. S. Sec. 1606; 66 v. 267, § 697. ] (1) See notes under § 3558, ante. vif ANNEXATION OF TERRITORY. § 3567 Sec. 3567. [Arrangement of terms and conditions of an- nexation.] The council or commission of any municipal cor- poration may propose annexation of its corporate territory to that of any contiguous municipality and shall thereupon pass an ordinance declaring its desire so to do, and to that end shall appoint three commissioners to represent it in such nego- tiations and to arrange the terms and conditions of annexa- tion. [109 v. 263; R. S. See. 1607; 66 v. 267, § 698.] — Sec. 3567-1. [Petition for annexation; appointment of com- mission.] Or, if there shall be presented to the council or commission of a municipality proposed to be annexed to an adjoiming or contiguous municipality, a petition signed by resident electors, who voted at the last municipal election, numbering not less than twenty-five per cent. of the number of electors who voted in the last municipal election in the ter- ritory proposed to be annexed, representing their desire that such council or commission shall take the necessary steps to select and appoint three commissioners to represent such mu- nicipality in annexation proceedings, and such petition shall be accompanied by a certificate duly verified on belief by oath from the clerk of the board of deputy state supervisors and inspectors of election of the county in which said munici- pality is located to the effect that the petition does contain the names of resident electors who voted at the last municipal election, of a number not less than twenty-five per cent. of those who voted at the last municipal election, the council or commission shall, within thirty days after the presentation of such petition, pass an ordinance declaring its intention to enter into negotiations with the municipal corporation with which annexation is proposed and shall appoint the three com- missioners to represent it in such negotiations. [109 v. 263. | (1) Sufficiency of certificate. —Certificate should state that pe- tition contains twenty-five per cent. or more of the resident electors, and it is not sufficient if it states mere- ly that petition contains names of twenty-five per cent, or more of the number of votes cast at the last preceding election. Norwood v. Board, 8 O. L. R. 380; see also Nor- wood v. Board of Elections, 13 C. C. (N.8.) 465. Proper certificate is necessary to give council jurisdiction to pro- ceed with ordinance to submit ques- tion to vote. 1b. Where petition and certificate sufficient in form, are filed, names § 3567-1 cannot thereafter be lawfully with- drawn. Ib. Number, how determined.— Council has the right and duty of determining whether the petition was signed by requisite number of resident electors and its decision THE OHIO MUNICIPAL CODE. 78 tent tribunal. Norwood v. Board of Elections, 13 C. ©. (N. 8.) 465. Withdrawal of names on peti- tion may be made at any time be- fore council takes action on the petition. Norwood v. Board of Elections, 13 C. C, (N. 8.) 465. is final, until set aside by compe- FORM OF PETITION FOR ANNEXATION. To the Council of the City [or Village} of ..........---++- , Ohio. The undersigned resident electors of said city [or village] hereby respect- fully petition your honorable body to take such action as may be required by law for the annexation of said city [or village] to the City [or Village] of LAP a? , Ohio, and to appoint commissioners to arrange the terms and conditions of such annexation. (This petition must be signed by twenty-five percent or more of the resi- dent electors of the municipality proposed to be annexed.) CERTIFICATE. I hereby certify that the attached petition contains the names of not less than twenty-five percent of the resident electors of the City [or Village] OLS. Piosiic tai , Ohio, who voted at the last municipal election in said city [or village]. In witness whereof, I have hereunto set my hand this .... day of .....-... : i ; Clerk of the Board of Deputy State Super- visors and Inspectors of Election of Serie Sntaid thie County, Ohio. The State of Ohio, = BADR TO ee , being duly sworn, says that he is the duly appointed and acting clerk of the board of deputy state supervisors and inspectors of election of county, Ohio, and that the facts stated in his foregoing certificate are, as he believes, true. ie. 6,00) 0.6, 6 8.8 A is0 so weve eo @ mee BAe O HIS ee CLAVE OL aA tate arches ria le atte © 0,8 o1.4.0 B00 6 ajo v.00 6.0 0 0.9 e100 6 6 8 te m whale. 6 6 eph eee 79 ANNEXATION OF TERRITORY. § 3568 FORM OF ORDINANCE PROPOSING ANNEXATION TO CONTIGUOUS MUNICIPALITY. Ordinance INO... 4. sss. To provide for the annexation of the City [or Village] of ............ , to the City [or Village] of ............ Whereas there has been filed with this council a petition by resident electors of the City [or Village] of ............ , in the number required by law, and duly certified as required by law, praying that the necessary steps shall be taken to annex the territory of the City [or Village] of ....... ; to the City [or Village] of ............ ; now therefore, Be it ordained by the council of the City [or Village] of ............ , Ohio, Sec. 1. That this council does hereby declare its intention to enter into negotiations with the City [or Village] of ............ for the annexation of the territory of said City [or siiabagh to the City [or Village] of .......... i iicecms GTS aiid ACG bs bes tenis wa « PC by Seeger be and they are hereby appointed as commissioners to represent the said City [or Vil- eee ee in such negotiations, and, in conjunction with like commissioners to be appointed by said City [or Village] of ............ ; to arrange the terms and conditions of such annexation and report the re- sult of their action to this council as required by law. Sec. 3. That the clerk of this council be and he is hereby directed to certify and transmit a copy of this ordinance to the council of the City (Bie UA Ge) OF, 2s. oye sp aicte ove Sec. 4. That this ordinance shall take effect and be in force from and after the earliest period allowed by law. EOMEG Ait Bre ek teh oar fal ae: Oe ele 6 Fhe. Sl dus 0 a ols a ele 6 sl eae altel wes) mie ele see Sania we Le OR ae ae oe ae ee ae Sec, 3568. [Designation of commissioners for negotiation.] Upon the passage of such ordinance the clerk of the council or commission passing such an ordinance shall submit a certi- fied copy of the same to the council or commission of the mu- nicipality with which annexation is proposed, and thereupon, and within thirty days after the receipt of such certified copy, the council or commission of the municipality with which an- nexation is proposed may pass an ordinance designating three commissioners to represent it in such negotiations. [109 v. 263, 264; 102 v. 441; 101 v. 244; R. S. See. 1608; 97 v. 190; 66 v. 267.] Sec. 3568-1. [Procedure on failure of council to designate commissioners.] If within thirty days after receipt of a certi- § 3569 THE OHIO MUNICIPAL CODE. 80 fied copy of an ordinance from a municipality proposing an- nexation designating its three commissioners, the council or commission of the municipality with which annexation is pro- posed shall fail to pass an ordinance designating three com- missioners to represent it in such negotiations, then, on re- ceipt of a petition signed by resident electors of a number not less than twenty-five per cent. of the number of electors voting at the last previous municipal election of the munici- pality with which annexation is proposed, petitioning the council or commission to take such action as may be necessary to initiate annexation proceedings and to appoint three com- missioners to represent it therein, the council or commission of said municipality shall pass an ordinance appointing these commissioners in such negotiations. [109 v. 263, 264.] NOTE: Form of petition and ordinance may be adapted from forms given under § 3567-1. Sec. 3569. [Arrangement of terms and conditions of annex- ation.] The commissioners appointed by their respective mu- nicipalities shall proceed to arrange the terms and conditions of annexation and report the result of their action to the council or commission of their respective corporations within one hundred and twenty days from the date of the appoint- ment of the commissioners of the municipality with which annexation is proposed. If such commissioners shall be unable to agree upon the terms and conditions of annexation within said one hundred and twenty days, then the probate judge of the county in which said municipal corporations are situated shall appoint one additional commissioner who shall not be a resident of either of said corporations. Said additional commissioner shall act with the other commissioners appointed as aforesaid, in arranging terms and conditions of such an- nexation, and the conclusions arrived at and agreed upon by any four of said commissioners shall be the terms and condi- tions upon which said annexation shall be submitted to the voters of said municipalities, and the findings and conditions thus arrived at shall be reported by said commissioners to the council or commission of each of said municipal corporations. [109 v. 263, 264; 101 v. 245; R. S. See. 1609; 96 v. 268.] 81 ANNEXATION OF TERRITORY. § 3570 Sec. 3570. [Submission of question of annexation.] Within thirty days after the filing of, said terms and conditions of annexation with the councils or commissions of said munici- palities, the councils or commissions of both such municipali- ties shall order the question of annexation, upon the terms and conditions contained in such report of said commissioners, to be submitted to a vote at the next regular election, whether state, county or municipal, occurring more than sixty days after the filing of such terms and conditions of annexation. [Requisites of each ordinance.] Hach ordinance shall pre- scribe the manner in which the submission shall be made and shall be published in its respective corporation by posters or otherwise, for the period of at least twenty days, prior to the time fixed for the election, in such manner as the council or commission deems most expedient, and a printed copy of such terms and conditions of annexation shall be mailed to each voter of each of such municipalities, as shown by the regis- tration books. [109 v. 263, 265; 102 v. 442; 101 v. 244; R. S. Sec. 1610; 66 v. 268, § 701.] FORM OF ORDINANCE SUBMITTING TO VOTE THE QUESTION OF ANNEXATION. : Orcimeance IN O.5 sues wca4% v5 To submit to vote the question of annexation of the City [or Village] of BP bets thoes: to the City [or Village] of............ Whereas pursuant to ordinances heretofore passed by this council and by the council of the City [or Village] of ............ , respectively, the com- missioners therein appointed have arranged the terms and conditions for the annexation of the territory of the City [or Village] of ............ to the City [or Village] of ............ and their report embodying the con- clusions of said commissioners has been duly filed with this council, now therefore, Be it ordained by the council of the City [or Village] of ............ , Ohio, Sec. 1. That the question of the annexation of the territory of the City IRV USE| MOE. cas ales acens to the City [or Village] of ............ be sub- mitted to the qualified electors of the City [or AAC V I 72H a a a at the regular election in ............ + FO. Sec. 2. The question whether such annexation shall be made shall be put in the form of ‘‘Shall the City [or Village] of ............ be annexed to the City [or Village] of ............ »’ “Yes’”’, ““No’”’, and printed on ballots, and those who are in favor of such annexation shall place a cross- mark after the word ‘“‘Yes’’ and those who are opposed to such annexation shall place a cross mark after the word ‘‘No’’. § 3571 THE OHIO MUNICIPAL CODE. 82 Sec. 8. Ballot boxes shall be provided and votes counted and returned and the election conducted as regular municipal elections. Sec. 42 The clerk of council [or village clerk] is hereby directed to pub- lish this ordinance in a newspaper of general circulation in this corporation at least twenty days prior to the election hereby authorized. (If no news- paper is published in the corporation the clerk should be directed to post copies of the ordinance in five of the most public places in the corporation for the same period.) Said clerk is further directed to mail to each voter of this corporation at least twenty days before said election a printed copy of the terms and conditions of annexation as agreed to by the commissioners. Sec. 5. This ordinance shall take effect and be in force from and after the earliest period allowed by law. esle-enre pele Cle oa mee eee oles a pele ss & 0 66 « slew Sec. 3571. [Election results certified.] If a majority of the electors of each corporation, voting on the question so submitted, be in favor of annexation, the election authorities shall thereupon certify the results of the election, in each corporation, to the councils or commissions, of both corpora- tions. [110 v. 87, 88; 109 v. 263, 265; 101 v. 244; R. S. See. 1611; 66 v. 268, § 702.] Sec. 3572. [Clerk of corporation to certify transcripts. ] Under the direction of the corporation, to which territory is proposed to be annexed, the auditor or clerk thereof shall make and certify two transcripts of all the ordinances, ab- stracts of the returns of the votes, and other papers relating to annexation, one of which shall be filed in the office of the recorder of the county, who, having made a record theréof, shall file and preserve it, and the other shall be forwarded to the secretary of state. [109 v. 263, 265; R. S. Sec. 1612; 66 v. 268, § 703. ] Sec. 3573. [When annexation deemed complete, and powers become operative.] When the transcripts are so certified, and one of them is delivered to the recorder and the other forwarded to the secretary of state, the annexation shall be complete and the aforesaid terms and conditions of annexa- tion shall thereupon become’ operative. The corporation to 83 ANNEXATION OF TERRITORY. § 3574 which the annexation is made shall pass such ordinances as will carry imto effect the terms and conditions of annexation in so far as they are not inconsistent with the provisions of this title and the general laws of the state of Ohio. [109 v. 263, 265; R. S. Sec..1613; 66 v. 268, § 704. ] Sec. 3574. [How corporations to be governed; rights or liabilities not affected.] When the annexation is completed, the two former corporations shall be governed as one, embrac- ing the territory of both, and the inhabitants of all such ter- ritory shall have equal rights and privileges, subject, however, to such terms and conditions of annexation. The annexation shall not affect any rights or liabilities existing at the time of annexation, either in favor of or against the corporations, ex- cept such as are affected by such terms and conditions of an- nexation and suits founded on such rights and privileges may be commenced, and pending suits prosecuted to final judgment and execution, as though the annexation had not taken place. [109 v. 263, 266; R. S. Sec. 1614; 66 v. 268, § 705.] (1) Territory annexed pend- ing merger of municipalities.— If while proceedings to annex terri- tory to a village are pending, the village is annexed to a city, the peo- ple of such territory become a part of the city, although they did not participate in the vote on the ques- tion of annexation of the village to the city; and they have no remedy against becoming part of the city. Mohn v. Collins, 32 B. 77. Taxes on annexed municipali- ty alone.—A tax which by agree- ment between a city and a village annexed to it was levied on the vil- lage property alone to pay the bonds of the village, is not void for want of uniformity. Cleveland v. Heis- ley, 41 O. S. 670. The existence of the village an- nexed is continued only so far as to legalize the tax for its debt. Jb. But such tax must not with the other taxes levied on said territory exceed the statutory limit. Jb. Agreement as to grades.—An agreement in the terms of annexa- tion stipulating that street grades should not be altered except by con- sent of property owners or the pay- ment of damages is void so far as it is a contract not to legislate and has the effect merely of putting the grades on the same basis as city grades and gives abutting property owners no greater rights. Thale v. Cincinnati, 1 N. P, 427; Corry v. Cincinnati, 22 B., 194. Rights after annexation.— A city which has annexed a village has no greater rights with respect to a street railway within the limits of the village than the village had. Cin- cinnati v. Street Railway, 17 B. 192. Effect on annexed municipality. —Annexation of one municipal corporation by another does not § 3575 THE OHIO MUNICIPAL CODE. 84 that the firemen in the service of and powers of the annexed mu-- the former shall continue in the nicipality, but simply merges’ service ,of the latter is valid. them with those of the annexing State ex rel. v. Excell, 21 C. C. corporation, and an agreement (N. S.) 603. put an end to the corporate life Sec. 3575. [How part of village attached to a city.] When a city and village adjoin each other, and the inhabitants of any portion of the territory constituting a part of the village desire to be detached therefrom and annexed to the city, on application of the council of the city and on the written request of two-thirds of the legal voters inhabiting the terri- tory proposed to be annexed, the commissioners of the proper county may cause such alteration to be made, and the bound- aries of the city and the village, respectively, to be established in accordance with the application and request, and such territory thereafter shall constitute a part of the city. In all such proceedings, the county commissioners, shall be governed by the provisions of proceeding on applications for the annexa- tion of adjacent unincorporated territory to municipalities.? [R. S. See. 1615; 88 v. 39; 68 v. 85.] (1) What provisions applicable. —The provisions of §§3548 to 3565 referred to, govern, not alone the actions and duty of the county commissioners under § 3575, but the entire procedure, including action of municipal authorities. Rost v. Glen- ville, 1 N. P, (N. S.) 65. So the an- nexation is not complete until the indebtedness has been apportioned nexation. Jb. Bach v. Goff, 24 C. C. (N. 8.) 561. See, further, as to what specific provisions are applicable. Pollock v. Toland, 1 Cu.C. (N.S) 815s (255C: sCoura, Forms.—See forms under § 3548, § 3549, and § 3550. These forms may be adapted to suit the cir- cumstances of the case provided for in this section. and the municipality has by proper See notes to § 3574, ante. corporate action, accepted the an- Sec. 3576. [Apportionment of indebtedness.] The county commissioners shall ascertain and apportion the amount of the existing indebtedness of the village, which shall be assumed and paid by the city on the annexation of such territory. The apportionment shall be made in the proportion of the total tax duplicate for the annexed territory transferred to the city, to the total tax duplicate remaining in and for the unannexed portion of the village. They shall ascertain, ad- just and divide between the city and the unannexed portion - — —e 85 ANNEXATION OF TERRITORY. § 3577 of the village, all moneys and other credits belonging to the village, in the same proportion as is herein provided for division and apportionment of any indebtedness, and order the amounts so adjusted and divided to be paid or delivered by the parties in possession thereof to the city and unannexed portion of the village. [R. S. Sec. 1615; 88 v. 39; 68 v. 85.] DETACHMENT FROM CORPORATIONS. Sec. 3577. [Petition for detachment of lands, and attach. ment to contiguous township; may form new township; appor- tionment of indebtedness; proviso; record.] Upon petition of a majority of the freehold electors owning lands in any por- tion of the territory of a municipality, accurately described in such petition with an accurate map or plat thereof, praying to have such portion of territory detached therefrom the com- missioners of the county in which such portion of territory is situated, with the assent of the council of the municipality given in an ordinance passed for that purpose shall detach such portion of the territory therefrom and attach it to any township contiguous thereto, or, if the petition so requests, they shall erect the territory into a new township, the bounda- ries of which need not include twenty-two square miles of territory : Provided that the commissioners shall first ascertain and apportion the amount of existing indebtedness of the municipal corporation from which the detachment is made and which shall be assumed and paid by the township contiguous thereto and to which the territory is detached or by the new township, if a new township is erected, or by the corporate successors of such township, and such apportionment shall be made in proportion to the tax duplicate for the detached territory transferred to a contiguous township erected into a new town- ship to the total tax duplicate for the remaining portion of the municipality from which the detachment is made; and to as- certain, adjust and divide between the contiguous township or the new township, if a new township is erected, and the remaining portion of said municipality all moneys and other credits belonging to the muncipality in the same proportion as is above provided for division ana apportionment of any § 3577 THE OHIO MUNICIPAL CODE. 86 indebtedness, and to order the amount so adjusted and divided to be paid or delivered by the parties in possession thereot to the proper officers of the contiguous township or new township and to the remaining portion of said municipality ; and Provided further that after such apportionment is made each section of the original territory by which the indebtedness was incurred shall be primarily liable for the portion of the indebtedness so apportioned; aud Provided further that in the issuing of bonds under sections 3939 to 3954, both inclusive, of the general code, and in arriv- ing at the limitations imposed in such sections as amended May 10th, 1910, Vol. 101, page 432, of the laws of Ohio, only the portion of the indebtedness apportioned to each section of territory shall be counted as the net indebtedness. The petition, map, ordinance and the order of the commis- sioners certified by the county auditor shall be recorded in the plat book in the office of the county recorder, and as soon as the record is made the proceedings shall be complete, both as to the detaching of such territory from the municipal cor- poration and the annexation thereof to the township or the erection of the territory into the new township, and to the apportionment of the indebtedness; and, Provided further that wherever territory has been detached from municipal corporation and attached to a township or created into a new township, the trustees of such township, or, where such township has become a village or city or been ‘annexed to any village or city, the council of such corporate successor of said township made by ordinance, duly passed, contract, through its proper officers, with the municipality from which the detachment was originally made to apportion the indebtedness of the original territory in the same manner as above described; said contract shall be made by ordinance or resolution, duly passed by the council of the village or city or trustees of the township, and the effect of said contract shall be the same as if such apportionment was originally made by the county commissioners, as above deseribed.t [102 v. 310; R. S. Sec. 1616; 97 v. 143; 95 v. 120; 74 v. 109.] (1) Forms.—The forms given un- adapted to suit the circumstances der §§ 3548, 3549 and 3550 may be provided for in this section. ee ee _—— 87 ANNEXATION OF TERRITORY. § 3577-1 Sec. 3577-1. [Provisions for detachment of territory from a village.]+* The inhabitants residing within any portion of a village, such portion being contiguous to an adjoining town- ship, and comprising not less than one thousand five hundred acres of land, may file with the board of deputy state super- visors and inspectors of elections in said county a petition requesting that an election be held to obtain the sense of the electors residing within said portion of such village upon the question of the detachment of such portion from such village, or, upon the question of the detachment of such portion from said village and the erection of such detached portion into a new township. Said petition shall contain an accurate description of the territory sought to be detached, together with an accurate map or plat thereof, and, if the erection of a new township is also sought, the name proposed for such new township; also, the name of a person to act as agent of the petitioners, and shall be signed by not less than twenty-five electors residing within the territory sought to be detached. Within ten days after the filing of said petition with the board of deputy state supervisors and inspectors of elections, said board shall determine whether said petition conforms to the requirements hereof. If it does not, no fur- ther action shall be taken thereon. If it does, said board shall order an election, as prayed for in said petition, which election shall be held at a convenient place within the terri- tory sought to be detached on a day named by said board, which day shall be not less than ten days, nor more than twenty days, thereafter. Said board shall thereupon give ten days’ notice of such election by publication in a newspaper of general circulation in said territory, and shall cause writ- ten or printed notices thereof to be posted in three or more public places therein. Said election shall be conducted as other elections are conducted, and the judges and clerks thereof shall be designated by said board of deputy state Supervisors and inspectors of elections. The ballots shall contain the words ‘‘for detachment,’’ and ‘‘against detach- ment.’’ If a majority of the ballots cast at such election shall contain thereon the words ‘‘against detachment,’’ no further proceedings shall be had in relation thereto, but this Shall not be a bar to other proceedings for the same pur- § 3577-2 THE OHIO MUNICIPAL CODE. 88 pose. If a majority of the votes cast have thereon the words ‘“for detachment,’’ the result of such election, together with the original petition and plat and a transcript of all the pro- ceedings of said board of deputy state supervisors and in- spectors of elections in reference thereto shall be certified by said board and delivered to the county recorder, who shall forthwith make a record of the petition, and plat, and transcript of all the proceedings of the board of deputy state supervisors and inspectors of elections, and the result of the election, in the public book of records, and preserve in his office the original papers delivered to him by said board of deputy state supervisors and inspectors of elections, and cer- tify thereon that the transcribed petition and map are prop- erly recorded. When the recorder has so made such record, he shall certify and forward to the secretary of state, a tran- script thereof. The detachment of said territory from said village, shall thereupon be complete, and, if said petition in- cluded a request that such territory be erected into a new township, said territory shall thereupon constitute and be a new township, under the name and style specified in said pe- tition. All expense involved in the holding of said election, and in the filing, recording and transcribing of the records herein provided for, shall be defrayed by the petitioners, and said board of deputy state supervisors and inspectors of elec- tions, and said county recorder may require the payment thereof in advance as a condition precedent to the taking by them, or either of them, of any step herein provided for. [106 v. 301.] (1) Validity.—This section and constitutional. Newburgh Heights sections 3577-2 and 3577-3 held v. French, 28 O. C. A., 586. Sec. 3577-2. [Apportionment of property between detached territory and village.] When territory is so detached, an ap- portionment of the property, funds and indebtedness of said village, shall be made between said village and said detached territory upon the basis of the respective tax duplicates in said village after such detachment, and in said detached ter- ritory. All water pipes and sewers laid either in said vil- lage or in said detached territory, shall be considered as prop- erty within the meaning of that term, as herein used, in so 89 ANNEXATION OF TERRITORY. § 3577-3 far as said water pipes or sewers have been paid for out of the general funds of the village. If the village authorities and the public authorities in control of said detached terri- tory are unable to agree upon such apportionment, it shall be made by the probate court, upon application by either the authorities of the village or the authorities in control of the detached territory. [106 v. 301.] Sec. 3577-3. [Additional method.] The method of detach- ment herein provided for shall be in addition to all other methods provided by law. [106 v. 301.] Sec. 3578. [Petition for detachment and parties; five-year limitation.] The owner or owners of unplatted farm lands an- nexed to any municipality after the incorporation thereof may file a petition in the court of common pleas of the county in which the lands are situated, in which such owner or owners shall be named as plaintiffs, and the municipality shall be the defendant, setting forth the reasons why the land should be detached, and the relief prayed for. On the petition a sum- mons shall issue as in other actions, and the case proceed as in other causes. Provided, however, that no such action shall be brought, or detachment ordered or decreed within five years from the time that such lands were annexed by any such municipality under the provisions of this or the preceding chapter. [102 v. 311; 95 v. 255, § 1.] FORM OF PETITION FOR DETACHMENT OF. UNPLATTED FARM LANDS FROM A MUNICIPAL CORPORATION, Court of Common Pleas,.................. County, Ohio. CEO OO aod ts, adidas bie ie pie bh e ) Plaintiff. | vs, The City [or village] of \ PETITION. PVCS e ee esese Coe ese Cece oe Defendant. ) Plaintiff says that he is the owner of the following described property, to-wit: (Here insert description of farm lands sought to be detached.) Plaintiff further says that the said property above described is unplatted farm land and lies within the corporate limits of the city [or village] § 3579 THE OHIO MUNICIPAL CODE. 90 Ghep cia sts oh8 iy , and is not within the original limits or said city [or village], but was annexed thereto on the ...... aya ter cette oa Oe eas Plaintiff further says that the said land should be detached from the said city [or village] for the reason that (here set forth the reasons why the land should be detached). Wherefore, plaintiff prays that the said property may be detached from the city [or village] of .......... and be attached to the adjacent town- ship Of 25 2% cba ee IN GAG COUNLY (Of shana tels a: ale my aN to impanel a jury to assess the compensation to be paid the owners of the property described in said appli- cation and the court finding that all the resident defendants have been duly served with notice of the pendency of the application in the ordinary man- ner of serving legal process at least five days prior to this application and 175 APPROPRIATION OF PROPERTY. § 3684 that all non-: esidents defendants have been served with notice by the publi- cation of the substance of the application in the ................ > & news- paper of general circulation in the county, once a week for three consecutive weeks from and after the.............. DO Ove rhs 5.2 > 19...., and that all the proceedings are regular and valid, does hereby order that a jury be impaneled on the........... GAOT sin,6 aim « winla'= nis 1D ois a iby «e's wie cum « o’clock ....M. for the purpose of assessing the compensation to be paid for said property. Sec. 3684. [View of premises; opening and closing of case. ]* A view of the premises shall be ordered when desired by the jury or demanded by a party to the proceedings.” The owners shall have the right to open and close the case.* [96 v. 28, § 16. ] (1) Old sections.—See old 136; Besuden vy Commissioners, 7 §§ 2242, 2245, 2250 R. S. repealed. (2) View of the premises is solely to enable the jury to apply the testimony. It cannot be con- sidered by the jury as evidence. C. C. 237; Ry. Co. v. Knauss, 47 B. 807. (3) Open and close.—Under former statutes, see Neff v. Cincin- nati, 32 O. S, 215. Columbus v. Bidlingmeier, 7 C. C.. Sec. 3685. [Guardian ad litem.]: If, at the time of the application, it appears that any of the owners of the property sought to be taken are infants or insane, and that they have no guardian, a guardian ad litem shall be appointed in their behalf. [96 v. 28, § 16.] (1) Old section.—See old section 2243 R. 8, repealed. Sec. 3686. [Deposit of money.]' No delay in the proceed- ings shall be occasioned by doubt as to the ownership of any property, or as to the interest of the respective owners, but in such cases the court shall require a deposit of the money allowed as compensation for the whole property or the part in dispute. As soon as the corporation shall have paid the com- pensation assessed, or secured its payment by a deposit of money under the order of the court, possession of the property may be taken. [96 v. 28, § 16.] (1) Old section, 2250 R. S. repealed Sec. 3687. [How assessment signed.]' The assessment shall be in writing, signed by the jury, and shall be so made that the § 3688 THE OHIO MUNICIPAL CODE. 176 amount payable to the owners of each lot or parcel of land may be ascertained.’ (1) Old section.—See old section 2245 R. S. repealed, (2) Separate interests.—Stat- ute does not provide for ascertain- ment of value of separate inter- ests, but only of the entire interest taken, and persons having sepa- rate interests must have their pro- portionate value determined when distribution is made. Cincinnati v. Mueller, 19 Dec, 533; 8 N. P. (N. S.) 195. [96 v. 28, § 16.] eral tracts, it is not error to allow jury to hear testimony as to value and assess damages as to one tract, before proceeding with inquiry as to remaining tracts. Cincinnati v. Morton, 31 C. C. 117;, 10 G. C. (N. S.) 416. Conclusiveness of award.— City estopped after lapse of years to deny title in person designated in its applicatidn as owner and to whom award of compensation was Several tracts.—Where con- made. Toledo v. Weber, 23 C. C. 564. demnation proceedings involve sev- Sec. 3688. [When appropriation includes part of a build- ing.]’ When a building or other structure is situated partly upon the land to be appropriated, and partly upon adjoining land, and such structure can not be divided upon the line between such lands, without manifest injury, the jury in assessing compensation to any owner of the land, shall assess the value thereof, exclusive of the structure, and make a sepa- rate estimate of the value of the structure. The owner of the structure may elect to retain and remove it, or to accept the value thereof as estimated by the jury. If he fails to make such election within ten days from the final determination of the cause, he shall be deemed to have elected to accept the value of the structure, as fixed by the jury. [96 v. 28, §16.] (1) Old section, 2245 R. S. reepaled. Sec. 3689. [Verdict in whole or in part.]’ The jury shall be sworn to make the whole inquiry and assessment, but may return a verdict as to part and be discharged as to the rest, in the discretion of the court. If a jury is discharged from rendering a verdict in whole or in part, another shall be drawn and impaneled at the earliest convenient time, who shall make the whole inquiry and assessment, or the part not made. [96 v. 29, §17.] 177 APPROPRIATION OF PROPERTY. § 3690 (1) Old section.—Section 2246 apply their own sound judgment R. S. repealed. as to value. Union Grain & Hay Consideration by jury.—In fix- Co. v. Cincinnati, 14 C. C. (N. 8.) ing value, the jury in considering 85. the evidence before them may also FORM OF OATH TO JURY. You, and each of you, do solemnly swear that you will justly and im- partially inquire into and assess, according to your best judgment, the amount of compensation due the proper owners in the cases which will be brought before you in this proceeding, by reason of the appropriation of their property, described in the application, to the public use by the plain- tin corporation, the city [or -yillage] of... us ees. new ee ee in the pro- ceeding now pending irrespective of any benefit from any improvement pro- posed by such corporation; and you do further swear, that you will, in assessing any damages that may occur to such property owners, by reason of the appropriation other than the compensation, further ascertain how much less valuable the remaining portion of said property will be in con- sequence of said appropriation; this you swear as you shall answer to God. FORM OF VERDICT. We, the jurors, in this case, duly impaneled and sworn, do assess as the compensation to be paid by the city [or village] of................. to the owner or owners of the several lots and parcels of land described in the application herein as follows: Ist. ‘To the owner or owners of lot or parcel No. 1. Value of land, including buildings and other structures situated wholly WALSAT U LARC A Jae ois a ssc pres sy ¢ GOUT SANG ieca.d's von pista mek GENES (Oiersusl scars We Damages to residue .......... dollars and ........ GONLG: (ths cr.’ st am a6 ua i Value of buildings [or other structures] situated partly on part taken, Pe eich tla tae shears GOUATS ANG) sayents ols chat CONUS. OSs hale aanda Dv To the owner or owners of lot or parcel No, 2, etc. (To be signed by all the Jurors; see § 3687.) Sec. 3690. [Orders as to payment or deposit of assessment. ]! The court shall make such order as to payment, deposit or distribution of the amounts assessed as may seem proper, may require adverse claimants to all or a part of the money or property to interplead and fully determine their rights in the same proceeding, and may direct the time and manner in which possession of the property condemned shall be taken or delivered, and may, if necessary, enforce any order giving possession.” [98 v. 164, §18; 96 v. 29, §18.] § 3690 (1) Old sections.—Sections 2247 and 2248 R. S. (repealed), (2) Distribution.—If city is given right to take possession of property subject to a lease, and the lease expires before possession is taken, the city must nevertheless pay the lessee the amount awarded him before taking possession. Cleve- land v. Society, 41 O. S. 600. Unpaid street assessments, which are liens on the property THE OHIO MUNICIPAL CODE. 178 tribution, see Scully v, Cincinnati, 29 C. C. 7138; 9 C. C. (N.»S.) 63. The amounts assessed and paid into court belong to the owner of the property at the time of the as- sessment, and do not pass to a grantee of the remaining property. Hyde Park v. Dyer, 7 N. P. (N. 8S.) 244; 53 B. 335. Adverse possession by munic- ipality as against person not made party to proceedings, see McNeely v, Cincinnati, 19 Dec. 210; 7 N. P. (N. 8.) 441, taken, how provided for in the dis- FORM OF JUDGMENT ENTRY. State of. Ohio. accel. geile The city [or village] of.......... : Defendants. ) This cause coming on to be heard upon the application of the city [or VENA GE)! OL 5.2 its ieyvnesat uicie GRE iene for the assessment of compensation to be paid to the owners of the lots described in the application and all interests therein appropriated by the said city [or village] for................. pur- poses (state the purpose of the appropriation) and all parties having been duly and legally served with process and a jury having been impaneled to _ assess the compensation and having viewed the premises, heard the testi- mony of witnesses, the arguments of counsel and the charge of the court and having returned their verdict into court assessing the compensation to be paid for the several lots therein mentioned as follows: (copy verdict). And the court having examined all the proceedings herein finds them all regular and according to law and does further find that said lots of land and the several interests therein belong to the persons whose names are set opposite to them as below set forth. It is therefore ordered and adjudged that said verdict and the several assessments made therein be and they are hereby confirmed. It is further ordered that said corporation pay [or secure to be paid by a deposit of money under the direction of this court] within...... days the amount of compensation so assessed for the use of the following named persons (give names of owners and amount of compensation assessed to each). And it is further ordered that upon payment [or deposit] by said corporation of the several amounts allotted by the jury to the persons above mentioned as the owners of the several lots, or into court, that the city [or village] shall be entitled to all interests and estate in, and to the Judgment Entry. 179 APPROPRIATION OF PROPERTY. § 3691 possession of, the lots and parcels above mentioned and that an order shall issue to the sheriff Of... .....eseeceejeeeee County, to put the plaintiff into possession of said property and interests. It is further ordered that said corporation within............. days from this date, pay the costs herein, taxed at............ dollars. Sec. 3691. [Effect of payment or deposit.] Upon the pay- ment or deposit, by the corporation, of the amount assessed, as ordered by the court, an absolute estate in fee simple shall be vested in such corporation, unless a lesser estate or interest is asked for in the application, in which case such lesser estate or interest as is so asked for shall be vested. [98 v. 164, § 18; 96 v. 29. §18.] Sec. 3692. [Reappropriation to perfect title.] A municipal corporation may again appropriate, in conformity with the provisions of this chapter, any real estate which it has pre- viously, lawfully appropriated, in order to perfect, in it, a title in fee simple absolute to such previously appropriated real estate. [98 v. 164, § 18; 96 v. 29, §18.] Sec. 3693. [Costs, how paid.]+ The costs? of the inquiry and assessment shall be paid by the corporation, and all other costs taxed as the court directs. At or after the time of mak- ing the application, the corporation may offer to confess judg- ment for an amount to be stated, and the costs then made, in favor of any owner, who in any manner enters appearance, or upon whom or whose agent personal service may be made. If such owner refuses to accept such offer, and on the trial does not recover more, he shall pay all costs accruing after the offer, and an offer so made shall be governed by the provisions of statute for an offer to confess judgment.* [96 v. 29, § 19.] (1) Old section.—See old section (3) Offer to confess.—As to 2249 R. S. repealed. form and sufficiency of offer, see (2) Jury fees in probate court Adams et al. v. Phifer et al., 25 held not to be a part of the costs O. S. 301; Tipton v. Tipton, 49 ©. in appropriation proceedings. Hill S. 364; Armstrong v. Spears, 18 O. v. Durr, 47 B, 440. S. 373; Fike v. France, 12 O. S. 624. § 3694 THE OHIO MUNICIPAL CODE. 180 FORM OF OFFER TO CONFESS JUDGMENT. State OL UIO, ine Malheur thtete eee gad ci County c2 os Stadt paces Oe Court The city [or village] of ; Plaintiff, Vv ( Offer to confess judgment. nie heteleievatalnds Sie teree tees et al. | Defendants. i Now*comes the'city:’ [or village] of 090 eo 9 ee. eae els plaintiff corporation herein, and, before the impaneling and swearing of the jury herien (or here insert time when offer is made), offers to allow judg- ment to be taken in this action in favor of............. , a party defendant herein and against said city [or village] in the sum of........ dollars and Mir Weta Wega « aic.n pr esoly cents, as compensation to said..............owner of lot [or parcel] No........ described in the application herein, together with the costs to the time of this offer. Ce City [or village] Solicitor. Sec. 3694. [Interested parties may give bond.]' Before or after the passage of an ordinance for opening a street or other public highway, any person may execute his bond? payable to the corporation to the acceptance of council, conditioned for the payment of all damage which may be assessed by the jury, and such bond shall be good in law, and if such person pay or deposit according to the order of court, then such street or other highway shall be opened; or the corporation may at its discretion make such payment or deposit, and collect by law the amount of such damages of such person or _his sureties.* [96 v. 29, § 20.] (1) Old section, 2251 R. S., re- pealed. (2) Form of bond.—See form used and discussed in Inclined Plane Ry. Co. v. Cincinnati, 23 B. 68. (3) Validity of bond to pay all damages, see Toledo Ry. Co. v. Fos- toria, 7 C. C. 293, 299. Acceptance of bond,—As to what constitutes, see Ry. Co. v. Cincin- nati, 23 B. 68. No repayment.—Section 2251 R. S. (repealed) was held not to con- template any repayment to inter- ested party giving bond other than that found in the beneficial interest because of the proposed appropria- tion. Ry. Co. v. Cincinnati, 25 B. 91; (aff'd by Supreme Court, 32 B. 400) and city cannot legally make a contract for such repayment. /b. APPROPRIATION OF PROPERTY. § 3695 181 Sec. 3695. [Review of proceedings.]' The municipal cor- poration, or the owner of property, the value of which has been assessed, as herein provided, may prosecute error as in other civil actions, and error shall le to the court of appeals from the judgments of the court, except that from the judgments of the probate court error shall lie to the court of common pleas.” The trial court, upon proper terms, may suspend the execution of any order, but in all cases where the municipal corporation pays or deposits the compensation assessed, and gives adequate security for any further compensation and costs, the right to take and use the property condemned shall not be affected by such review. [103 v. 405; 100 v. 100, § 21; 96 v. 29, § 21.] (1) Old sections.—See old §§ 2252, 2253, 2254 R. S. repealed. (2) Final order.—An order granting a motion for a new trial on ground that verdict is not sustained by the evidence, made in an appro- priation proceeding by a municipal- ity is not an order affecting a sub- stantial right, for the reversal of which a petition in error can be prosecuted. Neuzel v. College Hill, S102 8-571. Interest.—In a new proceeding after possession taken by condemn- ing corporation and reversal of first proceeding the jury may include in the compensation, interest on the amount due, from the time of taking possession. Ry. Co. v. Koblentz, 21 O. S, 334. Trial after reversal, see § 11066 G. C. and Cincinnati v. Lohman, 10.C..C. (N..§.) 119; 30 .C. C. 92. When compensation payable. —Owners of land taken for public purposes may waive the right to im- mediate payment. State v. Irvin, 12 Dec, 330. Sec. 3696. [Appeal to court of common pleas.]! If the pro- ceeding is had in the probate court a party interested in the inquiry and assessment may take an appeal to the court of common pleas and thereupon the same proceeding shall be had as if the application had been originally made in that court, except that the corporation shall not be required to give notice of its application, and the inquiry and assessment shall be limited to the case of the party taking the appeal, and the court shall make such order for the payment of the costs accruing upon the appeal as seems equitable and just.2 [100 v. 100, § 21; 96 v. 30, § 21.] -(1) Old section.—See old §§ 2252—2254 R. S. repealed. (2) Pending actions.—The amendment in 100 O. L. 100, abol- ishing appeals .from Insolvency Court to Common Pleas Court § 3697 and providing instead for review by petition in error in the Circuit Court, affects actions pending in the Insolvency Court and not carried into judgment before the passage of the amendment. Seither v. Cleve- land, 32 C. C. 617; 12 C. C. (N. 8S.) 378. THE OHIO MUNICIPAL CODE. 182 Procedure.—Error to circuit court for refusal to dismiss appeal, see Akron v. Miller, 82 O. S. 405; Nichols v. Cleveland, 17 C. C. (N. 8.) 503. The procedure prescribed by § 6408 R. 8. governs such ap- peals. Miller v. Akron, 16 C. C. (N. 8.) 554. Sec. 3697. [Neglect to pay or take possession in six months; attorney’s fees.]} When a municipal corporation makes an appropriation of property, and fails to pay or take possession thereof, within six months? after the assessment of compensa- tion shall have been made, its right to make such appropriation on the terms of the assessment so made shall cease and deter- mine, and lands so appropriated shall be relieved from all in- cumbrance on account of any of the proceedings in such ease, and the judgment or order of the court directing such assess- ment to be paid shall cease to be of any effect, except as to the costs adjudged against the corporation. Upon motion of any defendant, such costs may be retaxed, and a reasonable attor- ney’s fee paid to the attorney of such defendant, which, to- gether with any other proper expenses incurred by the defendant, may be included in the costs.* [96 v. 30, § 22.] old the expiration of the six months intending to proceed under the ap- propriation proceedings, the land owner may elect either to sue for the amount awarded him in the appropriation proceedings or have (1) Old section.—See § 2260 R. S, (repealed). (2) When time begins to run. —Time commences to run from the entry of the judgment or order di- recting the assessment to be paid and not from the rendition of the verdict, Ryan v. Hoffman, 26 O. S. 109. When title passes——In an ap- propriation of property by a mu- nicipality title does not pass un- til full compensation has been paid or secured to be paid. Cin- cinnati v. Jones, 24 C. C. (N. §.) 374. (3) Owner’s remedies.—If the corporation takes possession after damages assessed at the time posses- sion is taken. But having elected to sue for the amount awarded in the appropriation proceedings he is entitled to interest only from the time possession was taken. Toledo v. Groll, 2 C. C. 199; (aff'd 23 B. 220); Webber v. Toledo, 3 C. C. (N. 8.) 819; 23°C. C.. 287: Where city appropriates and takes possession of property, but does not pay the compensation the owner 183 APPROPRIATION cannot maintain ejectment but must sue for compensation. Weber v. Toledo, 3 C. C. (N. 8S.) 319; 23 C. C. 237, A corporation cannot be compelled by mandamus to take possession of the land and pay the compensation on its refusal to do so. State v. Re ReaCo.,0 17 0; 8.103. Waiver by acceptance of de=- posit.—The land owner is not bound to accept the compensation, deposited after the six months, but if he does so he waives strict com- pliance with the statute. Cincin- nati v. Hosea, 19 C. C. 744, (affirmed 66 O. S, 687). And in such case the owner cannot demand interest on the fund deposited. Ib. Land owner may waive his rights to have the property after the ex- piration of the six months and by accepting the compensation, ratify the proceedings. Ryan v. Hoffman, 26 O. 8, 109. When owner’s right barred.— The right of the owner whose prop- erty has been appropriated and, after six months, taken possession of, but not paid for, is not barred by the statute of limitations in less than 21 years. Section 11222 G. C. The six years’ statute, is not ap- plicable. Webber v. Toledo, 3 C. C. (N:.S.) 8193 23°C. C. 287. Who may sue.—Conveyance by the land owner of property con- demned, carries with it the right of action for taking it after the ex- piration of the six months. Clarke v. Cleveland, 9 C, C. 118. The devisee of a testator who owned part of the property con- demned, and to whom the remainder was conveyed after the appropria- tion, but before possession taken, has the right to maintain an action OF PROPERTY. § 3697 for amount assessed in the appro- priation proceedings where the cor- poration has failed to take posses- sion within the six months. Webber v. Toledo, 3 C. C. (N. S,) 319; 23 Ge Crooks Refusal by corporation before six months expires.—A municipal corporation may waive its right to take property condemned, before the expiration of the six months and in such case if the waiver is deter- mined to have been made the corpo- ration must pay attorney fees, etc., as required in case of failure to take after the six months. Andrews v. Hyde Park, 20 C. C. 278. A motion to retax costs in such case does not come within § 11634 providing that “the motion to vacate a judgment because of its rendition before the action stood regularly for trial can be made only in the first three days of the succeed- ing term.” Ib. Dismissal of proceedings.— Proceedings to appropriate by a municipal corporation may be dis- missed by the city solicitor with or without the direction of the legisla- tive board of the city, but in case of such dismissal, the city must pay counsel fees and other expenses deemed just by the court, to the property owners, Cincinnati v. Thrall; 6° Ns Pe l6s: Proceeding under invalid law. —Where the municipal corporation has sought to take property under a law, declared unconstitutional and because the unconstitutionality has been prevented from taking the property, it is not liable to pay counsel fees, etc., as in case where it fails to take possession within six months after a valid appropriation. Hyde Park v. Grant, 6 N. P. 471; § 3697 (in Supreme Court, 47 B,, 831; 67 O. S. 166). But the claim for attorney’s fees, etc., cannot be defeated on the ground that the appropriating or- dinance was invalid. Andrews v. Hyde Park, 20 C. C. 278, No bar to new proceedings.— The failure to pay and take posses- sion within the six months is no bar to a new proceeding to appro- priate the same property by the same corporation, after the expira- tion of the six months. Trustees of Southern Ry. v. Haas, 42 O. S. 239. Character of taking after six months.—Where a city takes pos- session by paying compensation after the six months, it gets title by ap- propriation and not by purchase, Ryan v. Hoffman, 26 O, 8, 109, 122. THE OHIO MUNICIPAL CODE. 184 Section applies to damages for change of grade.—Former § 2260 R. S., to which the present . section corresponds, was held ap- plicable to application to assess damages to abutting property own- ers for change of grade or other im- provements. Toledo v. Jacobson, 11 ©. C. 220 (aff’d, 38 B. 248). Taxes; deducted from compen- sation.—A lien for taxes is not divested by condemnation pro- ceedings, and taxes which have become a lien on the property appropriated on the date the title passes may be deducted from the compensation awarded. Cinein- nati v. Jones, 24 C. ©. (N. S.) 374, ee 185 SALE OR LEASE OF PROPERTY. § 3698 CHAPTER 2. SALE OR LEASE OF PROPERTY. Sec. 3698. [Lease or sale of corporate property. ]! Munici- pal corporations shall have special power to sell or lease real estate or to sell personal property belonging to the corporation, when such real estate or personal property is not needed for any municipal purpose. manner provided in this chapter.” § 23. ] (1) Old sections.—These pro- visions relating to the sale or lease of property correspond to chapter 16, division 8, title 12, R. S. §§ 2673 to 2675-10 R. S. ine. re- pealed. Other Code provisions.—Sec. 3631 gives municipalities the right to sell or lease real estate. But though the power is given in general terms there, its exercise would be limited by the special provisions of this and subsequent sections. See Kerlin Bros. v. Toledo, 20 C. C. 603. As to passage of ordinance for sale or lease of property, see § 4224, post, (2) Scope of power.—Gener- ally.—As a general rule, a corpora- tion, if not restrained by its char- ter may dispose of any property which it has a right to acquire. Newark y, Elliott, 5 O. S, 114; Rey- nolds v, Stark County, 5 O. 204. Land under a bridge used by the city for support of the bridge and not used as a street, may be leased by the city for any purpose not in- consistent with its use as a sup- port for the bridge. Ricard Boiler Such power shall be exercised in the [96 v. 26, §9; 96 v. 30, & Engine Co, v. Toledo, 25 C. C. 64. There is no express or implied power in municipality to lease the use of the city poles for wires of private company. Columbus ev. Public Service Co., 17 Dec. 291; 4 NYP: (NST) S29: Sale on time.—Authority to sell on terms satisfactory to a munici- pal board, gives power to sell on time. Cincinnati v. Dexter, 55 O. S. 93; Reynolds v. Stark County, 5 O. 204. Sale of gas plant—Sale of its gas plant is within the power of a municipality under a provision au- thorizing it to sell real or personal property not needed for its use. Thompson v. Nemeyer, 59 O. S. 486. Property acquired for specific pur- poses.—Where property is dedicated to the municipality for a specific purpose, it cannot be sold as against the reversioner. Board v. Edson, 18 O75. :221. When land is granted to a city upon a valuable consideration to be used for streets and other purposes, the title will not, in the absence of an express stipulation § 3699 to that end, revest in the grantor because the land is subsequently used for street and railroad pur- poses. The Cleveland Terminal & Valley Railroad Co. et al. v. The State ew rel., 85 O. S. 251. Where land is given to a munic- ipality for corporate purposes, or where the land is acquired by pur- chase, the municipality may dispose of it as individuals might. Rey- nolds v. Stark County, 5 O. 204; Le Clerq v. Gallipolis, 7 O. (pt. 1) 218; but where the corporation takes as a trustee, to hold for pre- scribed uses, the cestui que trust re- tains a vested estate, the enjoyment of which will be protected in equity. Le Clerq v, Gallipolis, 7 O. (pt. 1) 218. ; Where municipality appropriates property for park purposes, it can- not sell or lease such property for wharf purposes; the power to sell or lease does not give power to dispose of any greater or other interest than the municipality holds. White v. Cleveland, 21 Dec. 311. But see § 3699-1 post. Conveyance by city.—Hffect.— A deed by a municipal corporation for the conveyance of property, passes the legal title to the pur- chaser, although the consideration expressed is far below the value of Sec. 3699. THE OHIO MUNICIPAL COD. [Lease or sale of real estate; procedure. ]* 186 the property or merely nominal, Newton v. Mahoning Co., 26 O. S. 618. As to when court will interfere because of insufficiency of price, see Kerlin Bros, v. Toledo, 20 C, C. 603. When tie contract whereby the grant is conveyed contains the ele- ments of a valuable consideration as where the grantee surrendered the right to operate a ferry between certain points, in consideration of wharf and boat landing privileges, equity cannot be invoked to amend the contract or revoke the grant without an offer to restore the rights parted with when the contract was executed. Whether the grant amounted to an easement or a mere license, it is irrevocable when exe- cuted. Cincinnati v. Bridge Co., 20 C. C, 396. No warranty as to title or quan- tity.—City officers can not bind the municipality as to title or quantity of property offered for sale, and a purchaser of property so offered can not maintain an action for the value of property not delivered. Kerlin Bros. v. Toledo, 19.-C. C.. (N. 8.).120. Form.—As to the manner in which a municipal corporation should execute a deed, see Tiffin v. Shawhan, 43 O, S. 178. No contract? for the sale or lease of real estate*® shall be made un- less authorized by an ordinance, approved by the votes of two- thirds* of all the members elected to the council, and by the board or officer’ having supervision or management of such real estate. When such contract is so authorized, it shall be made in writing® by the board or officer having such super- vision or management and only with the highest bidder,’ after advertisement once a week for five consecutive weeks ® in a 7 187 SALE OR LEASE OF PROPERTY. § 3699 newspaper of general circulation within the corporation.® Such board or officer may reject any or all bids and re-advertise until all such real estate is sold or leased. 96 v. 30, § 24.] (1) Old sections.—Compare old sections 2673 and 2673a RS. (re- pealed). (2) Strict construction.—The formalities required by the statutes for the sale of property of a city must be strictly complied with. Ker- lin Bros. v. Toledo, 20 C. C. 603. No estoppel against municipality. —A contract by a city which is void because bids were not first ad- vertised for, imposes no liability on the city. Wellston v. Morgan, 65 O,-S. 219. No estoppel from the acts of the city officers can arise to cure an omission to advertise. Lancaster v. . Miller, 58 O. S, 558. Bids.—Construction.—A bid in response to an advertisement for sale of natural gas plant, making one offer for the part of the prop- erty outside the city, another offer for the part within the city and a third offer for both taken together, constitutes in reality three bids, and a sale of the outside property based on the first offer is not invali- dated by a condition attached to the last offer. Kerlin Bros. v. Toledo, 20 C. C. 603. Insufficiency of price—To author- ize a court to interfere with the ac- tion of a city council in a sale of the property of the city on the ground of the insufficiency of the price, the price received must have been so much less than would prob- ably be obtained by again offering the property that it might be said by all men of fair judgment that [98 v. 165, § 24; the acceptance of the bid amounted to a reckless and improvident act. Kerlin Bros. v. Toledo, 20 C. C. 603. Auctioneer.—Sale at auction is authorized by this section, but em- ployment of an auctioneer is not authorized. State, ex rel. v. Carrel, 103 O. 8. 50. Bidding in general.—See notes under §§ 3833 and 4328, post. (3) Real estate.—As to what property comes within the term “real estate” as used in a section such as this, see Kerlin Bros, v. To- ledo, 20 C. C. 603, The term is broader as here used than it is under the general definition of the law. Ib. Council must proceed under this section where part of the property sold is real estate, and it is sold as an entirety. See Kerlin Bros v. Toledo, 8 N. P. 62. (4) Two-thirds vote.—As to what would satisfy the requirements of the statute, relative to “votes of two-thirds of all members elected to Council,” see State ex rel. v. Orr, 61 O. S. 384; Guernsey Co. v. Cam- bridge, 7 ©, C, 72. (5) Concurrence of board.— Under the present statute, the sale of city property cannot be made by council, without the concurrence of the board or officer having the property in charge. As to this mat- ter under former statutes, see Ker- lin Bros. v. Toledo, 20 ‘C, C. 603; Newton v. Mahoning Co., 26 O, S. 618. § 3699 (6) Manner of executing a con- veyance by a municipal corporation. See Tiffin v. Shawhan, 43 O. S. 178; Young v. Mahoning Co., 7 O. F. D. 324, (7) Highest Bidder.—Under this wording of the law, the con- tract for sale must be made with the highest bidder, (see Beaver v. Blind Asylum, 19 O, S. 97; Boren v. Darke County, 21 O. S. 311), un- less the board exercise its power to reject bids. As to enforcement of right of bidder by mandamus, see same cases, (8) Provisions as to advertis- ing for bids are designed for the protection of the tax payer and are peremptory. Uppington v. Oviatt, 24 0. S, 232. And advertisement for less than the statutory period would render the sale void. McCloud v. Colum- bus, 54 O. S, 439. THE OHIO MUNICIPAL CODE. 188 As to what length of time of publication is necessary to fulfill the requirement “once a week for five consecutive weeks” see Early v. Doe, 16 How, (U. 8.) 610; Fenner v. Cincinnati, 8 N. P, 342; Gilfillan v. Koke, 1 W. L. M 704; Harmon v. Whittemore, 1 B. 109. (9) Newspaper.—The require- ment of publication in a newspaper of general circulation does not forbid additional publications in other pa- pers. This is not a squandering of funds. Wasem v. Cincinnati, 2 C. S. C. R, 84. Publication in a newspaper means publication in the English language, in the absence of provi- sions to the contrary. Cincinnati v. Bickett, 26 O. 8. 49. The publi- cation is legal although the news- paper is published only on Sunday. Hastings v, Columbus, 42 O. S. 585. ORDER OF PROCEDURE IN SELLING OR LEASING REAL PROP- ERTY OF MUNICIPALITY. 1. An ordinance by council, two-thirds of all members concurring, authorizing the sale or lease. 2. Approval of this ordinance by proper board or officer, and by the mayor. 3, Advertisement, inviting bids for the purchase or lease of the property. (Approval of sale by board of control in cities, where contract in depart- ment of public service or department of public safety, see $ 4403.) 4. Deed or lease conveying the property sold or leased. Note.—The steps contemplated to be taken under § 3699 above, are not definitely set out. It seems clear that there are two essential acts required to be taken to consummate the sale of property viz. first, the legislative determination to sell; and second, the carrying out of that determination by the executive or administrative department. Council, with the approval of the board or officer having charge of the property to be sold, finding the property not needed for municipal purposes, authorizes the contract for its sale to be made with the highest bidder upon advertisement. The passage of this ordinance completes the legislative step in the sale. The advertis- ing, or rejection of bids and readvertising, and the execution of the deed, are left entirely to the board or officer having charge of the property, and 189 SALE OR LEASE OF PROPERTY. § 3699 council can not. control the exercise of these powers, unless, of course, council should repeal its ordinance at some time before the sale authorized to be made is consummated. The steps set out here would seem to satisfy all the requirements of the section, and the forms which follow doubtless would be a sufficient compliance with it. It will be noticed that in. the form of deed given provision is made for the signature of the mayor and the affixing of the corporate seal of the municipality by that officer. The section of the code above does not explicitly require either the seal or the mayor’s participation in the sale, but since § 4550, makes the mayor the custodian of the corporate seal, and since the proper method of convey- ing real estate by a municipal corporation is over its corporate seal, the forms here given provide for such signature and seal. (See Dillon on Municipal Corporations, § 581; City of Tiffin v. Shawhan, 43 O. 8. 178, 185; Newton et al. vs. Commrs., 26 O. S. 618, 622.) It will be noticed also that the form of deed given below does not contain a general warranty. Mu- nicipality can not be bound by a warranty. Kerlin Bros. v. Toledo, 19 C. C. (N. 8S.) 120. FORM OF ORDINANCE FOR SALE OF REAL ESTATE BY MUNICIPALITY. An Ordinances NO seas. ae cles Authorizing the sale of (here insert general description of property) not needed for any municipal purpose. Be it ordained by the council of the city [or village] of............ ‘ State of Ohio, two-thirds of all members elected thereto concurring, See. 1. That the following described real estate belonging to the city Soraya) Ofs Wiesu A ae ean i's is not needed for any municipal pur- pose, to-wit: (Here insert legal description of property to be sold.) BROW OAL TNC. gor eevee gh eee 3 (naming the board or officer having the supervision or management of the property to be sold) be and hereby is authorized to sell said real estate to the highest bidder according to law, upon the following terms: (Here insert terms of payment, whether cash or otherwise) and the said.............00. (naming the board or officer) and the mayor of the city [or village] are hereby authorized to convey said real estate by deed to the highest bidder therefor according to law. ee Dee Moolah cr atu seth ob hs lt: Pees Attest: President of Council. Sere) Viet ef ae pe is ver ere: oo el e.a die @ & sm eke @ aj ole (This ordinance must be approved by the board or officer having the supervision or management of the real estate to be sold and must also be presented to the mayor for his approval as other ordinances. As to pas- sage under suspension of rules see § 4224). § 3699 THE OHIO MUNICIPAL CODE. 190 FORM OF ADVERTISEMENT FOR BIDS. LEGAL NOTICE. Notice is hereby given that sealed bids will be received at the office of the, a7. sige awe es (here insert name of the board or officer having supervision or management of the real estate to be sold) until 12 o’clock noon on ther. Wyre aiee dayOb iN eae eo ,19.... (this day should be not less than five full weeks from the first advertisement) for the pur- chase of the following described real estate: (Here insert legal descrip- tion of property to be sold.) Said property is to be sold and conveyed to the highest bidder (here in- sert the words “by general warranty deed,” if so specified in the ordinance) upon the following terms: (Here insert terms of payment specified in the ordinance. ) The right is reserved to reject any and all bids. ' (To be signed by the officer, or by the president of the board, thaving supervision or management of the real es- tate to be sold.) Clerk of Board [or officer]. FORM OF DEED BY MUNICIPAL CORPORATION. KNOW ALL MEN BY THESE PRESENTS, That whereas, on the...... Gay OF LU aloe , 19...., the council of the city [or village] of eer Ney hoe TO ee etone , State of Ohio, passed a certain ordinance, two-thirds of all members elected thereto concurring, authorizing the sale of the real estate hereinafter described, and, Whereas, pursuant to said ordinance advertisement was had in a news- paper of general circulation in said city [or village] for five consecutive weeks, inviting sealed bids for said real estate, and, Whereas, at the time fixed in said advertisement for the receipt of said ot Oe RR a a presented his certain bid for said real estate, which was the highest bid therefor, and which said bid has been duly ac- cepted, Now, therefore, pursuant to the premises, the said city [or village] of oo er eae oa Pa , State of Ohio; by..'). 00... 25. 5., its) mayor; and A acces TILES Hl late ce ee a (here insert title of officer or of the president of the board having charge of the property conveyed), in consideration of....... Se eis wks dollars to it paid by...........-., the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto the said Se aaa , his heirs and assigns forever, the following described real estate, situate in the city [or village] of............. , in the county of opr e nicte , and State of Ohio, to-wit: (Here insert legal description of 191 SALE OR LEASE OF PROPERTY. § 3699-a real estate conveyed), with all the privileges and appurtenances thereunto belonging, to have and to hold the same to the grantee, his heirs and assigns forever, as fully and completely as said city [or village] acting by its officers as aforesaid, by virtue of the proceedings hereinbefore set forth, may, can or should convey the same. In witness whereof, the said city [or village] of ............ 7, Dy abs said officers, has hereunto caused to be affixed its name and corporate seal, and the names of its said officers, and the attestation of the auditor of said city [or village clerk], this..... ABY4OL ey Pho ot) i: Fees (Seal of city or village.) EN Ge CIE s, WOM mVUNAS Cll. Olteec tee cisiele ste te c.c ees . Attest: DY te Se oh ee ae Bahn 2 Mayor Auditor or Clerk. (Officer or President of Board.) Signed, sealed, acknowledged and de- livered in presence of: ( Witnesses. ) mrmrerar Unio, County Of oc. oo... cs ce ce 3 88.: Ont this... 2% GEG MON et Ad FV ba Pld a5 DELOLe ING aot. eee es in and for said county, came........... , Mayor of the city [or village] of..... Phe So cs , State of Ohio, and............., the........ (here insert title of officer or of the President of the Board having charge of the real estate convey), and severally acknowledged the execution of the foregoing deed to be their voluntary act on behalf of the city [or village], and the cor- porate act and deed of said city [or village]. Also came......... auditor [or clerk] of said city [or village] and acknowledged the attestation of the foregoing deed to be his voluntary act and deed as such auditor [or clerk], In testimony whereof, I have hereunto subscribed my name and affixed my official seal the day and year last aforesaid. ( Title of officer taking acknowledgment.) (The forms for lease of property by the municipality may be adapted from the above.) Sec, 3699-2. [Declaration of state’s rights to waters of Lake Erie and soil under same.] It is hereby declared that the waters of Lake Erie within the boundaries of the state together with the soil beneath and their contents do now and have always, since the organization of the state of Ohio, be- longed to the state of Ohio as proprietor in trust for the peo- ple of the state of Ohio, subject to the powers of the United § 3699-1 THE OHIO MUNICIPAL CODE. 192 States government, the public rights of navigation and fish- ery and further subject only to the right of littoral owners while said waters remain in their natural state to make rea- sonable use of the waters in front of or flowing past their lands, and the rights and labilities of littoral owners while said waters remain in their natural state of accretion, erosion and avulsion. Any artificial encroachments by public or pri- vate littoral owners, whether in the form of wharves, piers, fills or otherwise beyond the natural shore line of said waters not expressly authorized by the general assembly, acting within its powers, shall not be considered as having preju- diced the rights of the public in such domain. Nothing herein contained shall be held to limit the right of the state to con- trol, improve or place aids to navigation in the other navi- gable waters of the state or the territory formerly covered thereby. [107 v. 587.] - Sec. 3699-1. [Municipalities authorized to use, lease and control waters and soil of Lake Erie, within corporate limits, extending two miles out from natural shore; powers, duties and limitations.] All municipal corporations with- in the corporate limits of which there is or may hereafter be included part of the shore of the waters of Lake Erie shall have the power, in aid of navi- gation and water commerce, to construct, maintain, use and operate, or lease the right to construct, maintain, use and operate, piers, docks, wharves and connecting ways, places, tracks and other water ter- minal improvements with buildings and appurtenances necessary or incidental to such use, on any land belonging to the corporation held under title permitting such use and also over and on any submerged or artificially filled land or lands made by accretion resulting from artificial eneroach- ments, title to which is in the state of Ohio, within the ter- ritory covered or formerly covered by the waters of Lake Erie in front of littoral land within the limits of said eorpo- ration whether said littoral land is privately owned or not. Any such municipal corporation shall also have power and authority to by ordinance subject to superior federal legis- lation, establish harbor lines and other regulations for said 193 SALE OR LEASE OF PROPERTY. § 3699-2 territory and to prohibit the placing, maintaining or causing or permitting to be placed therein any unlawful encroach- ments on said territory. The territory to which the powers hereby granted shall apply shall be limited to that within the existing or future corporate limits of the corporation and ex. tending into Lake Erie to the distance of two miles from the natural shore line; and for all purposes of government and exercise of said powers the corporate limits of any such corporation shall be held to extend out, in, over and under said water and land made or that may be made within said territory. These provisions, however, shall not have the ef- fect of limiting the now existing boundaries of any municipal corporation and in case where two municipal corporations have upland territory fronting on said waters and there should be a conflict on account of the curve of the shore line or otherwise as to said two mile boundary the boundaries of each corporation shall be a line midway between the shore line of each and not exceeding two miles from the shore line of either. Provided, however, that all powers hereby granted shall be exercised subject to the powers of the United States government and the public rights of navigation and fishery in any such territory and all mineral rights or other natural resources existing in the soil or waters in said territory, whether now covered by water or not, are reserved to the state of Ohio and its citizens. [107 v. 587; 101 v. 236.] Sec. 3699-2. [Limitations of rights of municipality re- specting front improved by private owner.] When any part of the territory mentioned in Sec. 3699-1, title to which is in the state of Ohio, is in front of privately owned upland and has been filled in or improved by said private upland owner or his predecessor in title to said upland, then a municipal corporation shall not have the power to take possession of or lease such part of the public domain so filled or improved, without the consent of said upland owner, until said munici- pal corporation has complied with the laws governing the ap- propriation of private property for municipal purposes, ex- cept that in any such proceeding to appropriate there shall be no compensation allowed to the upland owner for the site of such fill or improvements. [107 v. 587, 588. ] § 3699-3 THE OHIO MUNICIPAL CODE. 194 Sec. 3699-3. [Execution of leases; procedure.] Any lease by a municipal corporation, made under the provision of Section 3699-1, for a term of three years or more, shall be made by the passage of an ordinance describing the premises leased and locating by metes and bounds the then existing natural shore line or the last natural shore line, if artificially changed, and fixing the terms and conditions of the lease, and the acceptance thereof in writing by the lessee. But the same shall have no validity unless a true copy of such ordinance and said acceptance certified as correct by the clerk of the council of said municipality is recorded in the office of the recorder of the county where the premises are located. [107 v. 587, 588.] Sec. 3699-4. [Publication of notice before leasing; bids.] Before a municipal corporation makes a lease for a term of three years or more of any territory mentioned in section 3699-1, title to which is in the state of Ohio, said municipal corporation shall, by resolution of its council, cause public notice to be given in the same manner that the ordinances of said council are published, that on a day named in said no- tice bids will be received by the clerk of the council for the leasing of the premises, to be described in said notice. Said notice shall specify whether any rental shall be required or name a fixed rental to all bidders or may leave the amount of rental a matter of competition between bidders and shall require all bidders to specify the use they propose to make of the premises described in the notice. Said bids shall be opened only at a regular session of said council and a lease shall be given to the bidder whose offer, in the discretion of the council, is the best considering the amount of rental of- fered, if made competitive, as well as whose use of the prem- ises under the lease will best advance the water commerce of the port. [107 v. 587, 588.] Sec. 3699-5. [Control and management of territory.] The council of any municipal corporation may, when not other- wise prescribed by the charter law of the corporation, pro- vide by ordinance for the manner and by what executive of- ficials the ordinances and laws governing the administration 195 SALE OR LEASE OF PROPERTY. § 3699-6 of the territory described in section 3699-1 shall be adminis- tered and for the management of said territory and improve- ments placed thereon. [107 v. 587, 589.] Sec. 3699-6. [Application of rentals.]} All rentals or charges made or, collected by a municipal corporation for the use of any part of the territory described in section 3699-1, title to which is in the state of Ohio, or for improvements thereon, shall be used only to maintain, improve or add to improvements in aid of navigation and water commerce. [107 yv. 587, 589. | Sec. 3699-7. [Law shall have no retroactive effect.] Noth- ing contained in section 3699-1 to section 3699-6, all inclusive, shall be held to have a retroactive effect to validate or add to the effect of any previous act of a municipal corporation con- cerning such or like territory or public rights, nor shall the provisions of said sections have any effect, except as expressly provided in this act, to give any littoral or riparian owner ‘any rights in any territory covered or formerly covered by the waters of Lake Erie or the other navigable waters of the pirate (107, v. 587, 589.] Sec. 3699-8. [All state rights to certain submerged and filled lands, excepted from provisions of this act.] All right, title and interest of the state of Ohio in and to all submerged and filled lands in the harbor of the city of Cleveland, de- scribed in section 3, section 4, section 5, section 7 and section 9 in an ordinance of the city of Cleveland, designated Ordi- nance No. 37904-A, passed September 13th, 1915, which au- thorized the mayor of the city of Cleveland to enter into a contract with certain railroad companies for the purpose of securing a union passenger station for the city of Cleveland, together with all other submerged and filled lands within a tract which is bounded westerly by the east bank of Cuya- hoga river as it now runs and the east government pier, northerly by the government harbor line as it is now or may hereafter be established, and easterly by a line extended northerly and at right angles or normal to the natural shore line of Lake Erie from a point, on said natural shore line, §3699-9 THE OHIO MUNICIPAL CODE. 196 one hundred and fifty (150) feet easterly from the easterly line of East 26th street or said easterly line produced north- erly, is excepted from the provisions of sections 3699-1 to 3699-7, inclusive, of this act. Nothing herein shall prevent the general assembly from conveying the right, title and in- terest of the state in any lands described in any agreement now made between a municipality and any railroad company or companies for the purpose of securing railroad terminals and stations, and which land may be a part of the lands described in section one hereof; in any such event the con- veyance shall be made in conformity with the provisions of such agreement. [107 v. 587, 589.] Sec. 3699-9. [Section or part held unconstitutional shall not affect other sections or parts.] Should any of sections 3699-1 to 3699-8, inclusive, or any provision of said sections be decided by the courts to be unconstitutional or invalid the same shall not affect the validity of said sections as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. [107 v. 587, 590.] Sec. 3700. [Procedure when for passenger railroad station. ] When a municipal corporation owns real estate suitable for the location of a passenger railroad station and council by ordinance declares that it is necessary that such land be de- voted to such use, the municipality may sell, lease, or exchange such land to such railroad or railroads for such purpose in the manner provided in the next section. [98 v. 165, § 24.] Sec. 3701. [What ordinance shall contain; election.] An ordinance authorizing the mayor of the municipality to deed or lease the land shall be passed. In the ordinance council shall fix by metes and bounds the amount of land to be sold, leased or exchanged, the quantity of interest sold, leased or exchanged, and the consideration to be paid or exchanged therefor by such railroad or railroads, and in the ordinance shall call thereon a special election, to be held upon a day fixed by such ordinance, not less than thirty days from the passage thereof. [98 v. 165, § 24.] SALE OR LEASE OF PROPERTY. § 3702 197 Sec. 3702. [How such election conducted.] A majority of all the votes cast on such proposition shall be necessary to its ratification. When so ratified, the ordinance shall be effective, and the mayor shall proceed to execute a deed of conveyance or lease of the property as therein provided. In holding such special election, the provisions of law for submission of the question of issuing bonds in excess of four per cent of the taxable property of the municipality, shall apply. [98 v. 165, § 24. ] Sec. 3703. [Sale of personal property.] Personal property not needed for municipal purposes, the estimated value of which is less than five hundred dollars, may be sold by the board or officer having supervision or management thereof. If the estimated value of such property exceeds five hundred dollars, it shall be sold only in the manner herein provided for the sale or lease of real estate. [96 v. 30, § 25.] (1) Forms.—See notes and forms under § 3699 ante. Sale by piecemeal.—As_ to whether division into parts may be made of personal property to be sold than $500, see Lancaster y. Miller, 58 O, S. 558, 573. Authorization sales of personal property of less value than $500, by Board or Officer in charge at one time, so that the estimated thereof, must first be authorized value of the part sold will be less by couneil. Op. Atty. Gen. (1912) p. 190. Sec. 3704. [Disposition of money arising from sale or lease of corporate property.]! Money arising from the sale or lease of real estate, or a public building or from the sale of personal property, belonging to the corporation, shall be deposited in the treasury in the particular fund by which such property was acquired, or is maintained, and if there be no such fund it shall be deposited in the general fund. If the property was acquired by an issue of bonds the whole or a part of which issue is still outstanding, unpaid and unprovided for, such money, after deducting therefrom the cost of maintenance and administra- tion of the property, shall on warrant of the city auditor be transferred to the trustees of the sinking fund to be applied in the payment of the principal of the bond issue. [97 v. 516, § 26.] § 3705 THE OHIO MUNICIPAL CODE. 198 (1) Money received for ceme- Sale of property; disposition of tery purposes—how held and dis- proceeds. See Op. Atty. Gen. (1923) posed of. Op. Atty. Gen. (1918) No. 199. ; p. 219. Sec. 3705. [Sale of refuse.] Refuse, street scrapings, or ashes not necessary for the improvement of municipal property, and other personal property in charge of the street cleaning department no longer necessary for the purposes of such de- partment, shall be sold in the manner herein provided for the sale of other personal property, by the board or officer having the supervision or management of such department. [98 v. 43, § 25a. ] Sec. 3706. [Disposition of money arising therefrom.] Money arising from a sale under the next preceding section shall be deposited in the treasury in the street cleaning fund and shall be immediately available, in addition to the appro- priations by council, for the current expenses of the street cleaning department, and may be withdrawn from the treasury upon the warrant of the city auditor or clerk for such purpose. Such money shall not be considered a source of revenue subject to appropriation by council, and may be expended as herein provided without having been appropriated by council. [98 v. 48, § 25a.] ¢ Sec. 3707. [Exchange of lots for school purposes.] When any lot or lots of land lying within the limits of a municipality have been dedicated, given or granted thereto, and set apart for the use and support of schools, on application of the mayor or council thereof, the court of common pleas may authorize an exchange of such lot or lots for such other lot or lots within the limits of such municipality as the interest of the schools therein require. All lots so taken in exchange, shall be held for the same purposes and subject to the same condi- tions as the original lots. [70 v. 193, §1; Bates § 2675-1.] Sec. 3708. [Petition, what shall contain.] Each application ‘for such exchange of lots shall be by petition verified by the mayor. The board of education of the municipality and such q 199 SALE OR LEASE OF PROPERTY. § 3709 other persons as the court orders shall be made party defend- ants. The petition shall set forth an accurate description of each lot proposed to be given or taken in exchange, the speci- fie circumstances which render the exchange necessary, and a prayer for such order as may be required. [70 v. 193, §2; Bates § 2675-2. | Sec. 3709. [Notice of petition to be published.] Notice of the filing, pendency, and prayer of the petition shall be pub- lished for four consecutive weeks, prior to the day of hearing, in a newspaper printed in such municipality, or if there is none, in a newspaper printed in the county, and of general circula- tion in such municipality. [70 v. 193, §3; Bates § 2675-2. ] Sec. 3710. [Hearing and order.] If upon the hearing of the petition it appears to the court that notice of the filing, pendency, and prayer thereof has been so given, and that such exchange of lots is necessary and will promote the interests of such schools, and that such an order would not be inconsistent with the terms and conditions of the original grant or devise, the court shall authorize the exchange to be made, and order the mayor of the municipality to execute and deliver such deed or deeds in fee simple, as are necessary to effect the exchange. [70 v. 193, § 4; Bates § 2675-4.] Sec. 3711. [Transfer of public property to library trus- tees.] A municipal corporation may transfer, lease, or per- mit the use of, by ordinance duly passed, any property, real or personal, acquired or suitable for library purposes, to the trustees of any public library for the school district within which such municipal corporation is situated, or it may lease or permit the use of such property to any library association providing free library service to the citizens of the municipality, upon such lawful terms and conditions as are agreed to between the municipal corporation and _ trus- tees... [110 v. 407, 408; 97 v. 183, §1; Bates § 1536-124a.] (1) Condition as to type of will erect a building of certain building—A transfer of real es- type and clear certain adjacent tate by a municipality upon con- land for park purposes and pro- dition that the library trustees viding for a reversion of the § 3712 THE OHIO MUNICIPAL CODE. 200 property to the municipality Cleveland v. Library Board, 94 when it is no longer used for O.S. 811. library purposes was upheld in Sec. 3712. [Trustees may accept such or other suitable property.] The trustees of a public library in such district may receive and accept such transfer, and receive and accept from any other source or acquire in any other manner, any property, real or personal, for library purposes, and use and apply it for such purposes, and enter into any contract relating thereto. [97 v. 133, § 2; Bates § 1536-124b.] Sec. 3713. [Council may permit use of public buildings.] The councils of municipal corporations may permit the use of public buildings under their control, upon such terms and conditions as they by ordinance provide. [97 v. 278, §1; Bates § 1536-130a. 201 STREETS AND PUBLIC GROUNDS. § 3714 CHAPTER 3. STREETS AND PUBLIC GROUNDS. CONTROL. Sec. 3714. [Council to have care, supervision and control. ]* Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and con- trol of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.” (1) Old section 2640 R. S. (re- pealed). Other provisions relating to streets not contained in Title XII, will be found under heading Streets and Public Grounds, in Part U1. (2)Scope of words used.— Highway is a generic name and means a thoroughfare open to all people. Sullivan v. Columbus, 12 Dec. 650. Parks.—“Public grounds” in- cludes parks and same obligation is imposed on the city with reference to parks as with reference to streets. Harff v. Cincinnati, 11 N. P, (N. 8.) 41; Columbus vy. Biederman, 16 N. P. (N. S.) 140. Defective street in public park. —Liability of city for injuries from defects in a street in a pub- lic park not under control of council, see Krause v. Springfield, 18 N. P. (N. S.) 129. [96 v. 26, §9; 96 v. 31, § 28.] Roads in municipal limits.— Public highways over which council has control, would include part of pike within limits of municipality, although county commissioners may also have power to improve this part. Commissioners vy. State, 50 O. S. 653, 658; and the commission- ers would have this power under the two-mile-pike act. Lewis v. Lay- lin, 46 O. S. 663: see also State v. Craig, 22 C. C. 135; State ex rel. v. Lewis, 13 Dec. 188. These terms would also include a public roadway connecting with streets of a city, coming within limits of a municipality as part of territory annexed, if it continues to be used as a street, although never accepted and confirmed by ordinance. Steubenville v. King, 23 O. S. 610; and generally roads brought within a city by annexa- tion would be included. R, R. Co, v. Defiance, 10 C. C. 27, 32; 52 O. § 3714 S. 262; Slusser v, Sidney, 11 N. P. (N. S.) 297. See also Burrows v. Cosler, 33 O. S. 567. Bridges, etc., constructed by county.— Bridges, viaducts, etce.,” would include a bridge constructed by county commissioners within lim- its of a municipality. Newark v. McDowell, 16 C. C. 556; State ex rel. v. C. and H. St. Ry. Co., 19 C. C. 79, 90. And this is true, even though the municipality was not entitled to re- ceive any part of the bridge fund levied therein. Piqua v. Geist, 59 O. S. 163; and though the county had no authority to construct the bridge. Newark v. Jones, 16 C. C. 563. They would include a viaduct con- structed by county commissioners within a city, under statute author- izing such construction. State ex rel, v. Cincinnati, 4 N, P, 313. As to the power of county commis- sioners over bridges within the lim- its of municipalities, see Com’rs v. Ry. Co., 45 O. 8S. 401; State v. Com’r, 49 O. S. 301, 304; Jones v. Franklin Co,, 25 C. ©. 510. Where a bridge is built by a railway company under a contract with county commissioners, which contract provided for the main- tenance of the bridge by the com- pany under the direction of ‘‘the county engineer and county com- missioners,’? and the territory embracing the bridge was subse- quently annexed to a municipal- ity, it was held in Railway & Terminal Co. v. Cincinnati, 94 O. S. 269, that the municipality, while not free from all duty with respect to the condition of such bridge, has no right to recover under the contract for expendi- THE OHIO MUNICIPAL CODE. 202 tures made by it in repairs after notice to the company by the mu- nicipal officers. This section is not in conflict with §§ 2421 and 7557. Gincin- nati v. Railway, 18 N. P. (N. 8.) 553 (aff’d by Sup. Ct. without re- port.) See also §§ 2421 and 7557 under Streets and Public Grounds, in Part II. The general provision of old § 2640 R. S., was held to be qualified by § 860 R. S. (now 2421 G. C.) which required county commissioners to keep in repair bridges except those wholly within the municipality where such municipality had the right to receive a portion of the bridge taxes levied therein and also by § 4938 R. S. (now 7557 G. C.) which imposed upon the commission- ers the repair of bridges in cities not having a right to receive a part of the bridge fund levied therein. Dayton v. Harmon, 12 C. D. 574. See also State ex rel. v. Carlisle, 15 Dec. 165; 2.N. P. (N..S.) 627. Street defined—A_ street over which council has control, includes the surface with so much of what underlies it as is requisite for all street uses known to the period in which the street is occupied, not merely for travel, but for sewerage, gas pipes, ete., within whatever depth is necessary and proper, and as much of the space above the street as is necessary for the proper use of the street as a highway. Henry v. Cincinnati, 25 C. C. 178; 1Cy GLuNe Sz) 289: Land under city bridge used by the city as support for abutments of the bridge, which the city had not invited the public to use as a high- way, and which was not adapted for | 203 that purpose, is in no sense a public street, and city may lease such prop- erty for any purpose not inconsis- tent with its use as a support for the bridge. Ricard Boiler & Engine Co. v. Toledo, 25 C, C. 64. Character of municipality’s title —The fee of the streets is in the municipality, in trust for street purposes. St. Ry. v. Cumminsville, 14 O. S, 523; Columbus v. Agler, 44 O. S. 485; Callen v. Elec. Light Co., 66 O. S. 166; H. G. & CO. Traction Co. v. Parrish, 67 O. S. 181, 190; Butler v. Cincinnati, 2 C. C. (N. 8S.) 877; Wenzel v. St. Ry. Co., 14 N. P. 126; but see Henry v. Cincinnati, 1 OHO (NSS. 2895026 C.0C. 178. And this is true, although the street became such by annexation of terri- tory embracing a county road. Ak- ron & C, F, Rapid Transit Co. v. Hriet Ry. 28. C. C.36;°7 C.-C. (N, S.) 199. But see Reese v. Cleve- land, 18 Dec. 12; 5 N. P. (N. S.) 193. The municipal corporation is an agent of the state in the preserva- tion of public rights in the streets and its ownership is of the fee subject to the right of the state to direct the mode of administer- ing such trust and of keeping the streets in repair and free from nuisance. Raynolds v. Cleveland, 20. C. (N. 8.) 139; 24 C. C. 215, (aff’d, 76 O. S. 619). Acquisition from — state—The transfer to a city for street pur- poses, by the state, of property ac- quired for canal purposes, gives the control to the city without making a reversion in favor of the owner of the soil. Malone v. Toledo, 28 O. S. 643, Compensation for use of streets.—Revenues for the use of STREETS—CONTROL BY COUNCIL. $3714 the streets by vehicles in general is held to be a license fee for the spe- cial burden imposed and not a tax upon property. Marmet v. State, 45 O, S. 63, 68. Under §3461 R. S., (§ 9178 and § 9179 G. C.) providing for the use of streets by a telegraph or tele- phone company, it was held that “a municipal corporation, though hold- ing the title to its streets, has no private proprietary interest in them which entitles it to compensation when they are subjected to an au- thorized additional public burden by the construction of a telephone line therein. But being charged with the duty of keeping the streets under its control in repair, it may be al- lowed compensation to an amount sufficient to make the repairs ren- dered necessary by such additional use.” Zanesville v, Telegraph and Telephone Co., 64 O. S, 67, 81, As to right to exact a revenue from gas company using the streets, see Columbus v. Columbus Gas Co., 76 O. 8. 309. Prior to the constitutional amendments of 1912, municipali- ties in Ohio, under favor of Sec- tions 3714 and 10129, General Code, had the power to contract with a gas company, or other public utility, for the use and occupation of the streets in lay- ing its gas lines, maintaining the same and keeping the same in re- pair, by providing compensation to the municipality, either in a lump sum or based on a certain percentage of its gross receipts. Federal Gas Co. v. Columbus, 96 O. 8. 531. See note to See. 10129, Part IT. A municipality has the power to demand and receive from a §3714 telephone company, for the privi- lege of laying and maintaining subsurface conduits for its wires, compensation beyond what is necessary to restore the pave- ment to its former state of use- fulness and a provision requiring payment among other considera- tions of a proportion of the com- pany’s gross annual receipts is valid. Telephone Co. v. Colum- bus, 88 O. S. 466. As to revenue from use of streets by street railways, see Cincinnati St Ry. Co, v. Smith, 29 O. S. 291, 306. Power of council over use of streets.—The power is limited only by the rule that it holds the streets in trust for the publie for purposes of travel. Ry. Co. v. Elyria, 14 C. C. 48; Transit Co. v. Hamilton, 1 N. P. 366. It may authorize any use of a street not subversive of or impair- ing the original use, but the rights of the public to use it as a street, and of the adjacent lot owner to enjoy it as a means of access to his property, must not be materially in- terfered with. Branahan y. Hotel Co., 39 O. S. 333. A city ordinance making it un- lawful for any person to hold a public meeting for the purpose of speaking whereby a number of people are gathered together so as to delay traffic or interfere with the free and uninterrupted use of the streets of a city, un- less such person shall first have obtained a permit so to do from the director of public safety of said city, is a valid ordinance. Canton v. Robertson, 20 N. P. (N. 8.), 241. Council has discretion as to the manner in which streets shall be THE OHIO MUNICIPAL CODE. 204 used, and this power can not be ju- dicially interfered with unless a manifest invasion of private rights is shown. Mill Creek Valley R. R. Co. v. St. Bernard, 8 N. P. 288, 294, Municipality has the right to determine the width of its streets which shall be devoted to lawful public uses, the parts to be devoted to sidewalks, to shade trees, to gutters, drainage, etc., and to the use by vehicles and cars; and it is not an unlawful use in itself, to devote a part assigned for drain- age, to electric light poles. Nor- walk v. Jacobs, 29 C. C, 123; 9 C. C. (N. 8S.) 153. Where streets are sufficiently wide, municipalities may main- tain park strips between the curb and pavement and proper bar- riers to protect trees, shrubs and grass planted therein. Village of Barnesville v. Ward, 85 O. S. 1. Council may provide by ordi- nance that all drivers shall keep to the right in passing over bridges within municipal limits. Platt v. Toledo, 6 C. C. (N. S.) 403; 28 C, C. 832, (aff'd, 75 O. S. 590). It may by ordinance prohibit sales at auction in the streets, and such ordinance would not be un- reasonable nor in restraint of trade. White v. Kent, 11 O. 8. 550. It may summarily abate a nui- sance erected upon a public street which interferes with the free use of the street by the public. Evans v. Cincinnati, 2 Handy, 236. But hedges, shrubs, and herbage belong to the owner of the fee and can not be summarily destroyed un- less they interfere with public travel. Phifer v. Cox, 21 O. S, 248. It may impose upon one who has 205 been granted the privilege of tem- porarily obstructing a street for building on abutting property the duty to save the city from loss and travelers from injury. Reuben v. Swigart, 15 C. C. 565, Municipality may grant fran- chise to street railroad to use a bridge within its limits although the bridge was built by the county. State ex rel. v. R. R. Co., 19 C. C. 79, 90. It may regulate the use of streets and sidewalks by bicycles and prohibit riding of bicycles on sidewalks, as well as fix by ordi- nance, restrictions on speed, use of bells, lights, ete. Thomas v, Fre- mont, 12 Dee. 604. It may regulate the operation of jitney busses. Such regulation should be reasonable, but ought to be sufficiently effective to pro- vide for the safety of the public and protect property rights. Kaczmarek v. Independence, 18 yt. CN. Sy), 81; It is not unreasonable to re- quire that one who operates jit- ney busses shall execute a bond in the sum of $10,000 securing payment of damages to any per- son or for any property injured through his negligence; that he provide continuous service at reg- ular intervals in bad weather as well as good; that he shall be held to the same degree of care as the law imposes on other com- mon carriers, and that he employ no chauffeur who can not speak the English language. Jd. It may improve and ornament a public square for health, public buildings or the transaction of public business of the people or for both the purposes of pleasure and STREETS—CONTROL BY COUNCIL. § 3714 business if there is no special lim- itation or use described by the dedication. Langley v. Gallipolis, 2 0. 8. 107, But the municipality can not per- mit the permanent occupancy of the streets, cutting off access to the property of abutting lot owners for the convenience and benefit of a private business. Branahan v. Ho- tel Co., 39 O. S, 333. Where an ordinance of a mu- nicipal corporation in terms au- thorizes the owner or occupant of any store or premises abutting on a sidewalk to occupy, for the purpose of exhibiting his wares or merchandise, three feet of the sidewalk in front of said store or premises, which space to be so occupied shall be immediately ad- joining the line of said premises, such use is not made lawful by the ordinance if such occupancy of the sidewalk materially inter- feres with its use by the public or with special easements of the owners of property abutting thereon. Salzer v. Bolus-Hackett Co 16 NS PonGNeS.ys sa: Classification of street obstruc- tions, whether temporary or per- manent, and providing that the or- dinance shall operate only upon temporary obstructions, is a real and reasonable classification and does not violate any provision of State or Federal Constitution. Xenia v. Schmidt, 101 O. 8S. 437; reversing s. ¢. 12 Oh. App. 359. It can not surrender the street by permitting encroachments which les- sen its width. L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414, It was held that a municipality can not change the name of a street at will, without good cause, except § 3714 on petition of abutting property owners. Miller v. Cincinnati, 21 B, 121, A section such as this gives the municipality no power to grant to a lighting company the power to erect poles in the street. Brush Co. v. Jones Bros. Co., 5 C. C. 340, 341. Nor does it give power to grant to a railroad company the right to occupy the streets; though this power is in express terms given elsewhere. L. & N. Railroad Co. v. Cincinnati, 76 O. S. 481. The power to improve streets in its own way, is not limited by the voluntary improvement of an abut- ting proprietor in a different way. Parsons v. Columbus, 50 O. S, 460; nor by an improvement of a street which is part of a road within the municipality, by a county, having this authority. Mills v. Norwood, 6 C. C. 305, 308. The general authority of council over the streets, duly exercised, will override any license by which the control of the street has been surrendered to a company or in- dividual. Railroad Company v. Defiance, 10 O, F. D, 480; 52 O. S. 262. The power of council to author- ize the tearing up of streets by street railway company or sewer contractor is not restricted because of a previous contract with the construction company to keep the street which the company has made in repair. Union Savings Bank, etc., Co. v. ‘Norwood, 12 Dee. 623. As to council’s power over con- struction of sidewalks. see note un- der § 3853, post. Haclusive use.—Council is with- out power to grant exclusive use of THE OHIO MUNICIPAL CODE. 206 its streets, unless expressly granted the power. State, ex rel. v. Gas Light & Coke Co., 18 0. S. 262; Cin- cinnati Street Railway Co. v. Smith, 29 O. S. 291; State, ex rel. v. Co- lumbus Ry. Co., 24 C. C, 609, 623. The placing of two railway tracks on a street thirty-six to forty feet wide does not consti- tute an ‘‘exelusive occupancy’’ ot the street. Gas Coke, ete., Co. v. Railway Co., 14 C. C. (N. 8.) 196. Perpetual use may be granted if no limitation of time in power given to municipality by legislature. State, ex rel. v. Columbus Ry, Co., 24 C. C. 609, but see 73 O. S. 363. Processions and assembly.—An ordinance pertaining to street processions and assembly in the streets must be regarded as merely regulatory, its chief pur- pose being to advise the city au- thorities when, where, and in what manner it is proposed to assemble or parade; and the aec- tion of the authorities in grant- ing or refusing permits for such use of the streets must be rea- sonable, and not arbitrary or governed by whim or caprice. State ex rel. Bigelow v. Spiegel, 22 C. C. (N. S.) 337. Use granted to railroad.— Municipal control— Though a mu- nicipality has by ordinance author- ized a railroad company to lay tracks in a street, its supervision of, and responsibility tor the street con- tinues subject only to the use of the company as authorized. Steuben- ville v. MeGill, 41 O. S, 235; Cincin- nati v. Kirchner, 13 Dec. 727; Zanesville v. Fannan, 53 O. S. 605; Railroad Co. v. Defiance, 52 O. S. 262; 167 U.S, 88; L.S.& M. 8. Ry. — eo 207 Co. v. Elyria, 69 O. S. 414, 430. A municipality has no power to au- thorize permanent obstruction or en- croachment upon the street which excludes the public from the use of that portion of the highway. L. 8. & M. 8S. Ry. Co. v. Elyria, 69 O. S. 414; Zanesville v. Fannan, 53 O. S. 605; Railroad Co. v. Defiance, 52 O. S. 262; L. & N. R. R. Co. v. Cincin- nati, 76 O. S. 481. An agreement with a railroad company for an obstruction in the street that ex- cludes the public can operate only as a license until public conven- ience requires its removal. L. S. & M. 8S. Ry. Co, v. Elyria, 69 O. 8. 414, A municipal corporation has authority to pass an ordinance regulating the time railroad trains may stand across street crossings. Akron v. Temple, 16 C. C. (N. 8.) 327. Where a railroad company has the duty of maintaining a bridge as part of the street, and of keep- ing it in repair, the railroad com- pany would have the same right as the municipality to close the bridge when it became dangerous to public travel. Toledo Street Ry. Co. v. Mammet, 13 C. C. 591. When sewer is being construct- ed in public street beneath tracks of railway company crossing such street, such company is liable for supports while sewer is being constructed. Op. Atty. Gen. (1919), p. 445. Contract for use of street by railroad tracks construed, see Cleveland v, C. C. C. & St. L. Ry. Co., 19 Dee. 372. As to rights of abutting owner to enjoin construction of railroad when his easement in street is interfered STREETS—CONTROL BY COUNCIL. § 3714 with, sea Rights,” infra. “Abutting Owners’ Municipal liability—The duty of keeping the streets in repair and free from nuisance not being taken away by a grant of the use of the street to a railroad company, the municipality is liable to an abutting owner for damages caused by the railroad company to abutting prop- erty and not incidental to the ordi- nary construction of a railroad in the street, notwithstanding the rail- road company may also be liable to the property owner. Zanesville v. Fannan, 53 O. S. 605. But see Dil- lenbach v. Xenia, 41 O. S. 207. Thus a municipality was held liable for obstruction to drainage caused by a railroad company. Zanesville vy. Fannan, 53 O. S. 605. But the mu- nicipality is not liable for damages which are in the nature of compen- sation for an additional burden in the street arising trom the location or construction of railroad tracks therein. Zanesville v. Fannan, 53 O. S. 605. A municipality is held liable for injury caused to person falling into a ditch between tracks of railroad in the street. Steuben- ville v. McGill, 41 O. S. 235, As to rights of abutting owner against railroad company for dam- ages, see note under § 8763 in Part II. As to the statute of limitations in case of encroachment of abutments of a steam railroad in a highway, see L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414, 435, What uses impose additional burdens.—Sewers.—A sewer is an authorized use of a street. Elster v. Springfield, 49 O. S. 82; Cincin- nati v. Penny, 21 O. S. 499. Grading.—Grading and changing § 3714 of grade are authorized uses of streets. R. R, Co. v. Defiance, 52 O. S, 262, 300; 167 U. S. 88; East End B. & C. Co. v. Cleveland, 1 N. P. (N. 8.) 493. Street railways are not an addi- tional burden on the street, see note to § 3768, post. lectrie light poles and wires in the streets at the curb, though with the consent of municipality, have been held to be a diversion of the street from the purposes for which it was dedicated, and an abutting owner injured thereby has ‘been given the right to enjoin the same. Callen v. Electric Light Co., 66 O. S. 166; but a private company may erect and maintain in the streets of a municipality electrie light poles and wires for lighting the public streets under a contract with the city; such construction does not invade the rights of an abutting owner, and such owner ean not maintain injunction pro- ceedings, even though a portion of the current carried is for pri- vate purposes, provided such ad- ditional use does not impair the abutter’s property in any essen- tial degree. Huss v. Railway & Light Co., 25 C. C. (N. 8S.) 44. Additional cross arms and wires on poles used for street lighting, held not an additional burden on abutting property. Smith v. Power Co., 23 N. P. (N. 8S.) 55. Telephone and telegraph poles have been held an interference with abutting owner’s easement. Tan- nian v. Telegraph Ass’n, 13 Dec. 730; 1 N. P. (N. S.) 81 (aff’d, 71 O. S. 478); Daily v. State, 51 O. S. 348, 358, 364; Mantell v. Telephone Co., 20 C. C. 345; but see Auerbach v. Telephone Co., 7 N. P. 633; Hayes THE OHIO MUNICIPAL CODE. 208 v. Telephone Co., 21 C. C. 480; see further Zanesville v. Telegraph & Telephone Co., 64 O. 8. 67, 82. Gas pipes laid longitudinally un- der sidewalk have been held an addi- tional burden on the street. Federal Gas & Fuel Co. v. Townsend, 14 Dec. 5; 1 N. P. (N. 8S.) 289; Webb v. Ohio Gas Fuel Co., 16 B. 121. Conduits for telephone and tele- graph wires are additional servitude. Burns v. Telephone Co., 30 C. C. 74; 10 ©. C. (N. S.) 307 (aff'd, 76 O. S. 589). Pipes to carry steam for heat and power to public generally, under statutory authority, held legitimate street use. Stone v. Cuyahoga Light Co., 9 N. P. (N. 8.) 545; 20 Dee. 130. Steam railroads are an additional burden on the street, see note “A but- ting Owner’s Rights,” infra, Scales in street—A municipal council is without authority to grant the right to place wagon seales in a public street for the benefit of an abutting owner or any private interest. Minnich v. Lutz et ai., 18 N. P. (N. 8S.) 601; (aff’d by Court of Appeals with- out report). Abutting owner’s rights.—An owner of a lot abutting on a street has a property interest in the street in front of his lot which can not be taken except after pay- ment or deposit of compensation. Callen v. Electric Light Co., 66 O. S. 166; Crawford v. Delaware, 7 O. S. 459; Street Ry. v. Cumminsville, 14 0. S, 523. But see discussion by court in Smith v. Central Power Co., 103 O. 8. 681. An abutting owner’s easement in a street consists not only in hav- 209 ing the surface free and unobstruct- ed for ingress and egress, but he also has the right to light and air above the surface, Lloyd Booth Co. v. Mahoning Co., 12 C. D. 706; and an obstruction to his light and air is an infringement on his easement in the street. Hayes v. Telephone Co., 21 C. C. 480. So an erection of a viaduct in the street may be an injury to the easement, although it does not materially interfere with the sur- face use of the street. Lloyd Booth Co. v. Mahoning Co., 12 C. D. 706. Whether abutting owner’s ease- ment immediately in front of his lot extends only to center of street or all the way across street, see Smedes v, Railroad Co., 16 Dec. 743; Madden v. Ry. Co., 21 C. C. 73. Abutting owner consenting to the use of the street in front of his property by telephone wires would not be entitled to injunction to restrain putting these wires under ground without his consent. Burns v. Telephone Co., 3 N. P. (N. 8.) 257; 30 C. C. 74; 10 C. C. (N. 8.) 307; (aff'd, 76 O. S. 689). An abutting owner’s right to have the street kept open and free from nuisance may be barred by the lapse of time. Kuhn v. Cleve- land, 25 C. C. 272; 1 C. C. (N. S.) 384, So delay may forfeit right to reclaim property except by way of compensation. Ritter v. The Cleveland Short Line Ry. Cove COC INES.) 4! An abutting owner’s interest in the street is a property right, and he may use the surface or the Space above or below the surface of the street in any manner per- missible by municipal ordinance STREETS—CONTROL BY COUNCIL. § 3714 where such use contravenes, no right of the municipality to its actual use for street and municipal purposes. Kellogg v. Traction Co., 80 0. S. 331; Henry v. Cincinnati, 25 C. C. 178; 1 Cc. C. (N. 8.) 289; Reese v. Cleve- land, 18 Dec. 12; 5 N. P. (N. S.) 193. So an abutting owner may string a wire above the street eighty feet above the _ surface. Henry v. Cincinnati, 25 C. C, 178; 1c. Cc. (N. 8S.) 289; but see But- ler v. Cincinnati, 25 C. C. 772. In the absence of municipal reg- ulation or in accordance therewith, abutting owners may erect electric signs in front of their property and above the sidewalk, not amounting to actual obstruction or menace to the public. Reese v. Cleveland, 18 Deel?) b°N7 Bo (NAS). 193. Abutting owners on_ opposite sides of street may, under per- mit from municipality, construct an overhead bridge for transport- ing freight, where no supports rest in the street and light and air of adjoining owners are not inter- fered with. Kellogg v. Traction Co., 80 O. S. 331; and adjoining owners can not enjoin such erection. Offutt Vv. Packing Uo. 3) ©. C2083 11. C. Sa SS RS Gabel ya And the right of abutting owner to maintain shade trees, carriage blocks, lamp posts, cellar ways, stair ways, bay windows and other conveniences, is recognized. Elster v. Springfield, 49 O. S., 32; Kellogg v. Traction Co., 80 O. S. 331. Municipality is liable in damages for destruction of shade trees in making a street improvement, unless it was necessary to destroy the trees -to use the ground for street pur- poses. Newcomerstown v. Dickensen, § 3714 32 C. C. 311 (aff'd, 77 O. S. 597); Massillon v. Huff, 32 C. C. 333; 14 Ce Co CN. YSjades: Abutting owner may excavate and make areaways under the sidewalk. Iroquois Hotel Co. v. Columbus, 18 Dec, 662; 5 N. P. (N. S.) 357; but municipality igs not liable for failure to prevent sur- face water from collecting and flowing into openings in such area way. Ib. There can be no recovery from a municipality on account of the flooding of a basement or cellar by reason of the obstruction of a sewer, where notice of the ob- struction is not shown and no neg- ligence appears in the construe- tion, maintenance or care of the sewer. Norwood v. Gobrecht- Geyer Co., 2 Oh, App. 18. Dirt and gravel excavated by a municipality in making a street improvement may be appropriated by the municipality so far as necessary to be used in making such improvement. A _ property owner upon demand is entitled to surplus dirt and gravel so exea- vated. Dayton v. Haines, 12 Oh. App. 439. As to what use by abutting owner would amount to a nuisance, see Reese v. Cleveland, 18 Dec. 12; Due by CNS.) 108; Abutting owner is not guilty of maintaining a nuisance, by allowing dirt and stones, loosened by rain and frost, to fall over a retaining wall built by city, in front of his property. State v. Langdon, 54 B. 377. Steam railroads in street—In- junction.—An abutting owner may enjoin the construction of a rail- road until the right to construct THE OHIO MUNICIPAL CODE. 210 such road shall first be acquired. Railway Co. v. Lawrence, 38 O. S. 41; Toledo Bending Co. v. Rail- way, 2 N. P. 317; Weber v. Elec- tric Railway Co., 13 Dee. 194; Sommer vy. Pennsylvania Co., 23 C. C. (N. 8.) 33; 4 Oh. App. 340. Even after ordinance to construct railroad in street is obtained, an abutting owner may enjoin such construction if it materially interferes with his access. to his property, until his easement is properly appropriated or pur- chased. Burial Case Co. v. Rail- way Co., 24 C. C. 107; 4 C. C. (N. S.) 365. Where railroad track is not con- structed on part of the street im- mediately in front of plaintiff’s property, there is no such material interference with access as to con- stitute the taking of property and entitle the owner to enjoin the construction, even though the owner suffers in common with the public some inconvenience in travel along the street. Mitchell Furniture Co. v. Railroad, 7 N. P. 639 (aff’d, 65 O. S. 571); Herzog v. Railway, 25 C. C. 702 (aff’d, 74 O. S: 440); L. & N. R. R. Co, v. C. No -On& OT. CP Rye Cena oie (N. 8.) 109; 16 Dec. 777; see also Hatch v. R. R. Co., 18 O. S. 92; Hall v. Railway Co., 30 ©. C. 718; 11 Cl GC. AN. 8.3.97 But where the railroad obstructs the only means of access to his property, even though the track is not laid immediately in front of his lot, there is a taking of prop- erty rights and the construction may be enjoined. Mitchell Furni- ture Co. v. Railroad, 7 N. P. 639 (aff’d, 65 O. S. 571) ; Cleveland Fur- nace Co. v. Railway Co. 9 N. P. 211 (N. 8.) 426; 20 Dec. 188; Hall et al. v. The Pittsburg, Cincin- nati, Chicago & St. Louis Ry. Co., 85 O. S. 148. Laying of track across street which forms a cul-de-sac on which plaintifi’s property abuts and con- stitutes an injury to his property, may be enjoined if substantial and material. Doppes Sons’ Co. v, Ry. Co., 11 N. P. (N. 8S.) 289. So, where construction of railroad tracks in street causes sewer to be closed up and to form gul- leys in front of plaintiff’s prop- erty, constituting continuing nui- sance, injunction would lie. Hall v. Railway Co., 30 C. C. 718; 11 SOP (NES) OF. A railroad trestle in the street was not enjoined where the street was unimproved and far below the established grade, and abutting owner would not be injured in fu- ture when the street was filled. C. C. C. & St, L. Ry. Co. v. C. & I. W. By, sto Dee. 112; 2° N. Pe. (N: 8.) 237. The abutting owner can not en- join because the municipality might have a right to injunction. The municipality’s rights can not be worked out through an abutting owner, and vice versa. C. C, C. & St. L. Ry. Co. v. C. & I. W. Ry, Co., 15 Dee. 112; 2 N. P. (N. S.). 237; Worthington v. Akron, 18 C. C. CNS.) 208. - As to right to enjoin additional track where condemnation proceed- ings for abutting property pending, see Cincinnati Gas, ete., Co. v. B. & 0. Ry. Co., 14 C. C, (N. S.) 195. Where because of peculiar condi- tions the laying of track will en- hance the value of plaintiff’s prop- STREETS—CONTROL BY COUNCIL. away § 3714 erty, see Doppes Sons’ Co. v. Ry. Co. LENEP. (A NaS.) 280; Remedy under § 11084 of abut- ting owner whose business is in- jured by construction of railroad track in street, for impairment of easement, see Hall v. Railway Co., 30 C. C. 718; 11 C. C. (N.S.) 97. As to right of abutting owner to damages from railroad company, for injuries due to construction of railroad in street, see § 8763 and note (2) thereunder, Part II. Street railways.—As to rights of abutting owner where street rail- is constructed in street, see generally title “Street Railroads,” § 3768 et seq. City and county hMghcay—dis- tinction.—Owner of land abutting on country highway has fee to the center of highway and public has easement, while. owner of land abutting on city street has ease- ment and public owns the fee, but in each situation the _ respective rights are substantially the same. Callen v. Electric Light Co., 66 O, S. 166. Damages for imjury caused by improvements.—As to owner’s rights for damages to his property caused by improvements, see § 3823 and notes. No extraordinary use without consent of council.—The care, supervision and control over streets and highways having been given to council, none of these can be used for extraordinary purposes without the consent of council. JI- luminating Co. v. Mt. Gilead, 8 N. P. 669, But temporary obstructions in streets, such as are occasioned in rebuilding and repairing houses, § 3714 are not prohibited and do not re- quire special license. Clark v. Fry, 8 O. S. 358; Columbus v. Penrod, 73 O. S. 209; although council can regulate them, Jb.; and can im- pose the duty to save the city from loss and travelers from injury. Reuben v, Swigart, 15 C. C. 565. The moving of a building across a street is an extraordiary use of the street, and requires consent of proper authorities. Toledo, ete., Traction Co. v. Sterling, 29 C. C. 2274 O2C1 CoAN, 821200. As to rights of street railway company in case of moving build- ings across tracks, see Jb. Relative rights of telephone lines and house mover in streets, see Clyde Telephone Co. v. Par- menter, 19 Dec. 471; 8 N. P. (N. 8.) 147. Probate court, in fixing mode of use by telephone company, can not fix duties of such company with reference to moving of buildings. Cleveland Telephone Co. v. South Newburgh, 4 N. P. (N. 8.) 624; 52 B, 173. The license granted by munic- ipality to abutting owner as to use of street in a way consistent with street use, is not a contract and is revocable by the municipal- ity. Kellogg v. Traction Co., 80 O. 8. 331. Council is the only authority to give consent to the use of streets, and a direction assumed to be given by the mayor, without au- thority of council, is inoperative. Ry. Co. v, Carthage, 36 O. S, 631. Where an ordinance grants to a gas company the right to lay its pipes in the streets, no special per- mit from the municipal authorities THE OHIO MUNICIPAL CODE. 212 could be required. Defiance v. Gas and Electric Co., 12 Dec. 424. Such a right can not be revoked by the municipal authorities, and it in- cludes the right to repair and ex- tend the pipes. Jb. See further §§ 12644 and 12645 providing penalties for erecting poles or wires in streets, without consent of municipality, under “Streets and Public Grounds” in Part II. As to powers of director of pub- lic service over streets, see § 4325 and notes, post. Remedy for obstructions.—Ac- tion for mandatory injunction by the municipality to compel re- moval of obstruction, see Colum- bus v. Philbrick, 5 N. P. (N. 8.) 449; 18 Dec. 145; L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414. See also Trumbell Co, v. Penna. Co., 24 C. C. 550; Little Miami Ry. Co. v. Green Co., 31 O. S. 338; State v. Railway Co., 36 O. S. 434; but see Cincinnati v. Bridge Co., 20 C,. C. 396. Parties and service by publication, see Columbus v. Philbrick, 18 Dec. 145; 5 N. P. (N. 8.) 449. Action of ejectment, see Cleveland v. ©. C. C. & St. L. Ry. Co., 19 Dec. 372. Summary abatement, see Cin- cinnati v. Evans, 5 O. S. 594; 2 Handy, 236; Phifer v. Cox, 21 O. S. 248. In_ prosecutions for allowing building to project into street, as to admissibility of evidence of other buildings projecting, see Philbrick v. State, 8 N. P. (N. S.) 374. Action by individual whose property rights are injured, see Kuhn y. Cleveland, 1 ©, ©. (N. 8.) 384; Herrick v. Cleveland, 7 C. C. 470; Mondle v. Plow Co., 6 N. P. 213 294; see also note “Abutting Own- er’s rights,” ante. Ejectment will lie to recover parts of a street. Railroad Co. v. Cleveland, 15 C. C. (N. 8S.) 193; aff’d 87 O. S. 469. Adverse possession.—It has been held that a wmunicipality’s rights in a street or public square may be lost by adverse possession by a private individual for more than twenty-one years where the possession is by a building or other permanent and _ substantial structure. Cincinnati v. Presby- terian Church, 8 O. 298; Cincinnati vy. Evans, 5 O. S. 594; Williams v. Presbyterian Society, 1 O. S. 478, 510; Lane v. Kennedy, 13 O. S. 42, 46; McClelland v. ‘Mil- ler, 28 O. S. 488, 502; Seese v. Maumee, 7 C. C. (N. S.) 497. See also Cincinnati v. Columbia, 17 B. 192; Railroad Co. v. Hambleton, 40 O. S, 496; Cleveland v. C. C. C. & St. L. Ry. Co., 19 Dec. 372. But the erection of fences, plant- ing of shade trees and like occu- pation of a part or all of a public street do not constitute such ad- verse possession as to bar the mu- nicipality. Lane v. Kennedy, 13 O. S. 42; McClelland v. Miller, 28 O. S. 488; Heddleston v. Hendricks, 52 0. S. 465; Sullivan v. Columbus, 12 Dec. 650; Ashley v. Toledo, 13 Cu Cr 9. But as to the case where fences and like unsubstantial structures exclude the public from the entire street, see Mott v. Toledo, 17 C. C. 472, (aff’d 60 O. S. 601) ; Drucker v. Home City, 31 C. C. 466; 12 N. P. (N. S.) 309, (aff'd, 81 O. S. 507); Seese v, Maumee, 7 OC. C. (N. 8.) 497 (holding there is a distinction between encroachment on part of a STREETS—-CONTROL BY COUNCIL. § 3714 street and entire occupation of street); see also Hermann v. Spitzmiller, 24 C .C. (N. 8S.) 20. On the other hand, it has been held that since the encroachment on a publie street by a permanent or other structure is a public nui- sance, no right by adverse posses- sion can be acquired by such an obstruction. Elster v. Springfield, 49 O. S. 82, 98; Wright v. Oberlin, 23 C. C. 509; Heddleston v. Hen- dricks, 52 O, S. 465; Ry. Co. v. Elyria, 69 O. S. 414; Sullivan v. Columbus, 12 Dec. 650; Lawrence Railroad Co. v. Commissioners, 35 O. S. 1; Railroad Co. v. Com- missioners, 31 O. S. 338, 349; County Commissioners v. Railway, Le ipNas te, Ch ela kbea. » sand whatever right against the mu- nicipality may be acquired by the encroachment upon the street with a permanent structure has _ been placed upon the ground of equi- table estoppel of the municipality. Lane v. Kennedy, 13 O. S. 42, 46; Elster v. Springfield, 49 O. S. 82, 98; Wright v. Oberlin, 23 C. C. 509; Sullivan v. Columbus, 12 Dec. 650; Winslow v. Cincinnati, 6 N. P. 47; and, see Mondle v. Toledo Plow Co., 6 N. P. 294; Lane vy. Kennedy, 13 O. S. 42; Mooren v. Cleveland, 15 Dec. 456; Philbrick ¥. State, 8. N. PCN. §.)- 374: Hermann v. Spitzmiller, 24 ©. ©. (N. 8S.) 20. See § 13421 under “Streets and Public grounds” in Part II, where the obstruction of any public ground, highway, street or alley of a muni- cipality by fences, buildings, struct- ures or otherwise is made an indictable nuisance, Streets not opened and used.— By § 11220 G. C., the whole § 3714 or any part of streets which have been dedicated, but not opened or used by the public, may be lost by the municipality to abutting owner if fenced in and held for twenty-one years. See also Stevens v. Shannon, 6 C. C. 142; Seese v. Maumee, 7 C. C. (N. 8.) 497; 28 ©. G. 768; Simpson v. Johnstown, 29 O. C. A. 219; 9 Oh. App. 102. Abandonment.—Statutory meth- od of vacating streets is exclusive, and municipality can not lose its rights to a street by abandonment. See § 3725 and note (2) thereunder. Liability —Abutting owner has no redress for abandonment of part of street or alley where rea- sonable access to his property re- mains, although by a greater distance. Anderson v. Cleveland Cor alee LE ClCs CN ASO iS aiid 79 O. S. 461. Municipal liability — General Principles.—The rule of municipal liability would seem to be that the municipality is not liable for the unlawful use of its streets, but is liable for any defects in their state or condition. Custer v. New Phila- delphia, 20 C. C. 177. And it is not liable for failure to prevent a use of the streets by neglect to pass proper ordinances, or otherwise. Jb. In exercising care and control over the streets, the municipality acts as the agent of the state and is exempt from liability for fail- ure or neglect to perform duties in that respect. Robinson v. Green- ville, 42 O. S. 625; Custer v. New Philadelphia, 20 C. C. 177; Zanes- ville v. Fannan, 53 O. S. 605; Wil- helm y. Defiance, 58 O. S. 56, 65.. Thus a municipality is not li- able for injury caused by fast rid- ing of bicycles on its sidewalks THE OHIO MUNICIPAL CODE. 214 because it has not forbidden the same by ordinance or otherwise. Custer vy. New Philadelphia, 20 C. Oe Wf «5 It is not liable for injury caused by disorderly persons discharging a cannon for several hours in the street. Robinson v. Greenville, 42 O. S. 625; but see O’Grady v. Newark, 26 C. C. (N. 8.) 47, 28 C. D. 69, where it is held that a city may be liable for negligence in permitting the operation in the street of a peanut roaster, which exploded, causing a personal in- jury. But the provision requiring the municipality to keep the streets open and in repair and free from nuisance implies a duty for the breach of which, to the injury of any one, the municipality is liable. See Cleveland v. King, 132 U. S. 295, 302; Cardington v. Admr. of Fredericks, 46 O. S. 442, 447; Zanes- ville v. Fannan, 53 O. S. 605; Wil- helm v. Defiance, 58 O. S. 56, 65; Herrick v. Cleveland, 7 C. C. 470; Kleister v. Dayton, Ohio Dee. (Day- ton), 215; and it is liable even though the defect or obstruction arose from construction in accord- ance with plans for improvement adopted by municipal authorities. Circleville v. Sohn, 59 O. S. 285. When the corporation is perform- ing this duty it is acting in its proprietary capacity, and its liabil- ity is largely, if not entirely, meas- ured by the liability of an individual for similar acts. Robinson v. Green- ville, 42 O. S. 625. The law exacts from the munic- ipality, however, only what is prac- ticable and reasonable in regard to keeping its streets open and in re- pair and free from nuisance. Chase 215 y. Cleveland, 44 O. S, 505, 515; Van Dyke v. Cincinnati, 1 Disney, 532; and it is not bound to anticipate improbable and unprecedented events, and provide against their possible results. Village v. Kallager, 52 O. S. 183; Fremont v. Dunlap, 69 O. S, 286. It is only required to keep the streets in such condition that a person exercising ordinary care in passing over them, may be reason- ably safe from injury arising from their condition. Durbin v. Napo- leon, 21 C. C. 160; Norwalk v. Ja- cobs, 29 C, C. 123. Trees, grass and flowers grow- ing on parking strip and proper barriers to protect same are not per se nuisances. Village of Barnesville v. Ward, 85 O. S. 1. Municipality is not an insurer of the safety of persons using the streets, and when the streets are in a reasonably safe condition for travel in the usual modes, it is not charge- able with negligence, though an ac- cident happen in the use of the streets. Dayton v. Glazer, 76 O. 8S. 471; Cardington v. Fredericks, Admr., 46 O. S. 442; Zanesville v. Fannan, 53 O. S. 605; Cincinnati v. Sohn, 59 O. S, 285; Cincinnati v. Fleischer, Admr., 63 O. S. 229; Troy v. Brady, 67 O. S. 65. Not liable where injury is caused by runaway team. Drake v. East Cleveland, 101 O. 8S, 111. One who, with knowledge of a defect or obstruction in a city street, voluntarily assumes the risk and ventures upon the ob- struction cannot hold the city for resulting damages. eri ote x7, Cleveland, 16 ©. C. (N. 8.) 209. To same effect see Adams. v. Zanesvilie, 30 O. OC. A. 319. STREETS—CONTROL BY COUNCIL. § 3714 But the liability of the munic- ipality is not affected by the fact that the person who caused the nuisance which resulted in injury, is responsible over to the munic- ipality. Zanesville v. Fannan, 53 O. S. 605; nor by the fact that the statutes give a remedy to the per- son injured against the one di- rectly causing the injury. Jb. In what cases liable.—Gener- allyn—A municipality by allowing a street to become dangerous, maintains a nuisance, and is liable for personal injury caused there- by. Cardington v. Admr. of Fred- ericks, 46 O. S. 442. A municipality is not liable in the ordinary case. for injury caused by falling on slippery sidewalk where snow and ice had been allow- ed to accumulate, for it is not the duty of the municipality to remove immediately all snow and ice from sidewalks in all parts of the city. Chase v. Cleveland, 44 O. S. 505; Stamberger v. Cleveland, 22 C. C. 65; Van Dyke v. Cincinnati, 1 Dis- ney, 532; Norwalk v. Tuttle, 73 O. S. 242; Burlitghouse v. Laisy, 11 N, P. (N. S.) 348. And see Bloom v. Toledo, 25 C. C, 285; 2 C. C. (N.S.) 108; reversed 72 O. S. 652. See also Ritter v. Toledo, 39 O. C. C. 233. But see Bretsch v. Toledo, 1 N. P. 210; Cincinnati v. Greb- Her, 20 Ge wo hUWs of ty etn: Be) 11. When the slippery condition is apparent it would be negligence to go upon the sidewalk. Con- neaut v. Naef, 54 O. S. 529; Schaefler v. Sandusky, 33 O. S. 246; Schneider v. Cincinnati, 16 Dee, 2067 45NP. GN. 83) 57. In an action for injuries due to a fall caused by a hole in the street, the question whether the § 3714 hole was of sufficient size to con- stitute a dangerous defect, if it appears to be one as to which reasonably prudent men might disagree, will be left to the jury for determination under all the circumstances of the case. Wuest v. Cincinnati, 13 N. P. (N. 8S.) 249. The fact that the evidence in- dicates that the hole was large does not preclude recovery on the ground of contributory negligence, where it appears that at the time of the accident the hole was filled or partly filled with freshly fallen snow. Ib. Municipality is not liable for in- jury to plaintiff from falling on sidewalk where ice had formed from break in water main where munic- ipality repaired break as soon as possible and had no actual knowl- edge of forming of ice. Cincinnati v. Renner, 13 C. C. (N. 8S.) 407. Negligence of municipality in leaving snow and ice on sidewalk, when a question for the jury, see Russell v. Toledo, 19 C. C. 418; Barry :v... Akron, -7, C, Gy (N,) 5s) 575; 28 C. C. 728; see reversal, 76 OS. 7625. Municipality is not liable for injuries from slipping on _ steps maintained by it in public street, caused by a natural accumulation of ice and snow. Village of Not- tingham v. Hoffman, 16 C. C. (N. 8.) 238; aff’d 85 O. S. 447. City is negligent if it leaves an excavation unguarded on a public way established by user through a market building. Nitz v. Toledo, 22 C. C. 454; Toledo v, Nitz, 3 C. C. (N. S.) 582; 23 C. C. 350. City is liable for injury caused by a bridge on a street crossing a THE OHIO MUNICIPAL CODE. 216 stream, being without rails or guards, whereby a child falls in and is drowned. Boyd v. Cam- bridge, 4 C, C. 519. A municipal corporation is not liable for an injury caused by a fall upon a _ sidewalk rendered slippery by a deposit of mud and rock which were washed down upon it from an adjacent hill- side during a heavy rain, where it appears that there was no op- portunity after the cessation of the rain to remove the deposit. Rucker v. Cincinnati, 15 N. P. (N. 8.) 252. The municipality is not re- quired to go outside the line of the street and sidewalk, upon pri- vate property, and construct re- taining walls or other devices for the purpose of preventing mud and rock from washing down upon the sidewalk. Jb. Liability of municipality for sidewalks not constructed in usual or customary manner. See Baker v. Addyngton, 22 N. P. (N. S.) 41. Where a sidewalk is so constructed as to make in effect two curbs, with a step between, see as to question of negligence causing personal injury, East Cleveland v. Wald, 103 O. S. 373. City is not liable for dangerous condition of land adjacent to street, but not so near as to men- ace ordinary travelers. Kelley v. Columbus, 41 O. S.. 263. City’s liability for steam roller loaned by city contractor and left in street, see Pears v. Cleveland, 1 Clev. 328. City is liable for injury due to a part of a sidewalk not conform- ing to the grade of the street, this condition remaining for a long ——_—— ee 217 time to the knowledge of the city. Toledo v. Higgins, 12 C. C. 541. A building permit authorizing temporary obstruction of a street and requiring a light at night, does not relieve the city of liabil- ity. Cleveland v. King, 132 U. S. 295. But city is not liable, without express or implied notice, for in- juries caused by failure to guard such temporary obstructions, un- less the permit given was to do something intrinsically dangerous. Columbus v. Penrod, 73 O. S. 209; Horner v. Spence, 17 C. C. (N. 8.) 28. Where city grants permission to make a dangerous excavation in a street, and the excavation is prop- erly guarded, but subsequently the protection is removed, the city would not be liable for injury due to unprotected excavation, in the absence of actual, or constructive notice of the removal of the pro- tection. Hewitt v. Cleveland, 67 O. S. 534 (without report, revers- ing 21 C. C. 505). City is liable for injury result- ing from unguarded excavation left by the removal of platform scales in a market place, with knowledge of the city. Nitz v. To- ledo, 22 C, C. 454. The test whether it is necessary that a barrier be erected on sidewalk to protect travelers from excavation or dangerous place near sidewalk, is not the distance from the highway of the dangerous place but whether a traveler in passing along the highway and exercising ordinary ‘care would be subjected to such imminent danger that it would re- quire a barrier to make the high- STREETS—CONTROL BY COUNCIL. §3714 way safe. Mineral City v. Gilbow, 81 0. S. 263. Where a dangerous condition exists in a street due to repairs of pavement being made by the city, and plaintiff, who has knowledge of the conditions, while alighting from a ear at night, thinking he was alighting upon a cross-walk a short dis- tance from the place being re- paired, is injured by stepping into a hole which he could not see by reason of the city’s neglect to place red lights or to keep an are light overhead burning, the city will be liable. Shields v. Cleve- land, 21° ©. C. ¢N.'S.) "257. -Con- tra, Cincinnati v. Hiles, 20 C. C. (N. 8.) 106; 3 Oh. App. 319; 28 C. D. 568. City is liable for injury from iron standard used for regulation of traffic and left in the street on a very dark night without light. McMillen v. Akron, 29 O. OFS D: Bay fae Municipality is liable to injury to pedestrian from unguarded re- taining wall, though not within sidewalk line, if so near thereto as to appear within. Cavey v, Cin- einnati, 12'C. C. (N. 8S.) 285; 32 CeriCe 39s wath ds aCineimn ati nv. Cavey, 85 O. 8. 450. Municipality not liable for injury to pedestrian by tripping over wire stretched to protect grass between curb and sidewalk. McCurdy vw. Newark, 10 N. P. (N. 8S.) 526; but such wire must not constitute a dangerous barrier to trip a pe- destrian exercising due care. Vil- lage of Barnesville v. Ward, 85 OnBa/} Street is not in unsafe condition because of slight depression in side- § 3714 walk, unless there is something in condition of the depression specially calculated to cause injury. Gibbs v. Girard, 14.C, CG (N. 8.) 81; but what is ordinary care, what is reasonable safety and the like, are, in the first instance, usually questions for the determination of the jury; reversing Circuit Court and Court of Common Pleas in di- recting verdict where plaintiff’s testimony showed a two-inch de- pression or break in sidewalk. Gibbs v. Village of Girard, 88 O. 8. 34. Municipality is liable for damages resulting from cistern negligently constructed in street. Circleville v. Neuding, 41 O. S, 465. Where a telephone pole in the street has, subsequent to its erec- tion, become dangerous, municipal- ity may be liable for injury caused thereby, after notice of dangerous condition. Norwalk v. Jacobs, 27 @ Ce. 69h; 37 Cn Cy CONseSs) 229; Injuries to property.—Liability for destruction of shade trees by street improvement, see Newcomers- town v. Dickinson, 32 C. C. 311; 14 C. C. (N. 8S.) 191; Massillon v. Huff, $25 C.7 Cl. 388; Ide Coan) 193; liability of municipality for unnecessary injury to shade trees planted by property owner within the lines of the public highway, by reckless and unnecessary trim- ming of trees for purpose of stringing wires, see Village of Ameha.ov.iy Hicks, «28, O.4 (G3 Ae 582; 7 Oh. App. 132. Municipality is liable for injury resulting from defective service pipe causing water to leak into plaintiff’s cellar, if municipality has notice, Cincinnati v. Jacob, 18 B 65; for damages caused by preventing sur- THE OHIO MUNICIPAL CODE. : 218 face water from escaping into catch basins, in course of grading a street, and injuring plaintiff’s house, To- ledo v. Lewis, 32 B. 378; for injury caused by overflow of surface water in making side streets, McBride v. Akron, 12 C. C. 610. Such overflow causing damage is a continuing nui- sance for which actions will lie from time to time. Toledo v. Lewis, 17 C. C. 588. Owner of lot situated lower than street can not complain of overflow of surface water because of raising of street, if he has received or waived compensation for the change of grade. Sharp v. Cincinnati, 26 C. C. 59; 4 C. C. (N. S.) 19. See also Hamilton y. Ashbrook, 62 O. S, 511. A municipal corporation is li- able to a land owner for dam- ages resulting from an increased flow of surface water upon his land, caused by a change in street grades by which water is brought from another street to that upon which the land abuts and from which it flows upon the land. Evers v. Akron, 23 €. ©. (N. 8.) 168. An action by a property owner for damages resulting from the bursting of a sewer during high water does not lie against a mu- nicipality on the allegation that the collapse of the sewer was due to the building of an embank- ment upon which a street is ear- ried over low ground, unless it is made to appear that the embank- ment turned the rising water into the basin in which the sewer was located and from which basin the embankment prevented the water from escaping. McWilliams v. Cincinanti, 13 N. P. (N. 8S.) 467. In the construction and main- 219 tenance of a hydraulic, or similar work, a municipality is required to use ordinary skill and fore- sight to prevent injury to others in times of floods to be reason- ably anticipated; and if injury is caused by its negligence, it is liable in damages, provided its negligence is one of the proxi- mate causes of the injury, al- though it concurred with other causes, including the act of God. Piqua v. Morris, 98 O. S. 42. Where no negligence is shown, city is not liable for settling of a build- ing caused by excavation for a sew- er constructed by it. Columbus v. Jaeger, 36 B. 191. Municipality is liable for injuries resulting from break in water main caused by its negligence. Werner v. Cincinnati, 23 C. C. 475; 3 C, C. (N. S.) 276 (affirmed, 70 O. S. 455). General principles of municipal liability for damages resulting from improvement of streets, see Cin- cinnati v. Penny, 21 O. S. 499, Liability for damages for change of grade, see notes to § 3823, post. Liability for damages resulting from construction of sewer, see notes to § 3871, post. Liability for damages for injury caused by railroad constructed in street, see note “Use Granted to Railroad,” ante. Where duty of county to re- pair.—A village having notice thereof is liable for injury caused by a dangerous excavation left in building a bridge within the corpo- ration, although built by the county, and although the village receives no part of the bridge fund. Newark v. McDowell, 16 C. C. 556, And so, though the county had no STREETS—-CONTROL BY COUNCIL. § 3714 authority to construct the bridge. Newark v. Jones, 16 C. C. 563. The fact that it was the county’s duty to repair a defect in a bridge within the city, does not relieve the city of liability. Mooney v. St. Marys, 15 C, C. 446. As to liability of city to repair bridge within its limits, but on state or county road where city receives no part of the bridge fund, see Brink v. Columbus, 37 B. 22; Sullivan v. Newark.ailueN. 1b. .050; The obligation of council under this section applies to a sidewalk of a street which forms an abut- ment to a county bridge. Com- missioners vs. Shurts, 10 Oh. App. 219. ; The municipality is liable for in- jury caused by a hole in a bridge within its limits notwithstanding the duty of the county commission- ers to construct and keep in repair such bridge. Mooney v. St. Marys, 15 C. C. 446; Piqua v. Geist, 59 O. S. 163. Where a bridge has been con- structed by county commissioners upon a state or county road within the limits of a city, the city is nevertheless liable under this sec- tion for damages to any person suf- fering injuries by reason of a nuis- ance being maintained upon any such bridge or the approach there- to. Youngstown v. Sturgess, 102 O. S. 480. But the right of action for de- struction of a bridge built by county, but within a village, is in the county commissioners. Perry Co, v. R. R. Co., 43 O. S. 451. Where injury is caused through acts of agent of munic- ipality.—The wrongful act causing injury may not be done directly by § 3714 the municipality, but indirectly un- der its authority. The city is equally liable in such case. Thus a city is liable for the neglect of a city board making a street umder a special act. Johns v, Cincinnati, 45 O.° 8.278% It is liable for injury caused in the improvement of a vault by trus- tees of a cemetery belonging to a city. Toledo v. Cone, 41 O. S. 149. : The city of Cincinnati was held liable for damages for obstruction of access resulting from laying of tracks in the streets by trustees of Cincinnati Southern Ry. English v. Trustees So. Ry., 8 B. 15. But the city is not liable for the acts of the Board of Education in allowing a schoolhouse to become dangerous. The board of education is not an agent of the city. Diehm v. Cincinnati, 25 O. S, 305. Fire- men are not the agents of the city so as to make the city liable for their acts. Thomas v. Findlay, 6 C. C. 241. Nor will a health officer’s act make the city liable. Turner v. Toledo 15 C. C. 627. Municipality can not shift the re- sponsibility because the work was done by a property owner for it. Alliance v. Campbell, 17 C. C. 595; as where a property owner has con- structed, under permission of mu- nicipality, a sidewalk or sewer which causes damage. Mansfield v. Bristor, 76 O. S. 270; Alliance v. Campbell, 17 ©, C. 595. Though where the injury has been thus caused by a property owner the city may have an action. over against the person directly re- sponsible. Zanesville v. Fannan, 53 0, S. 605. A municipal corporation is bound by statute to keep its sidewalks in THE OHIO MUNICIPAL CODE. 220 repair and free from danger and is liable to a pedestrian for injuries received from falling through an areaway extending out into the side- walk and leading to the basement of an adjoining building, which was constructed in a safe and substantial manner, but allowed to become unsafe and out of repair through natural wear and decay of the side- walk produced by usage and time. Cleveland v. Hanson, 15 Oh. App. 409. The city cannot set up as a defense to an action brought against it by such pedestrian for the ‘injuries thus sustained a written release and covenant not to sue executed by the plaintiff in consideration of a sum of money received by him from the abutting property owner releasing such property owner from all claims that plaintiff might have against him arising out of such accident. Jb. Independent contractor. — Where the work in the course of which injury is caused, is done not by an agent of the city, but by an independent contractor, the city is not liable unless the character of the work contracted for is neces- sarily dangerous or unless the city has retained control over the mode and manner of doing the work. See Cincinnati v. Stone, 5 O. S. 38; Chi- cago v. Robbins, 4 Wall, 657; see also Cincinnati v. Tilser, 19 G. C. (N. 8.) 112; 2 Oh. App. 394. The city is liable where there was a defect in the plan made by the city engineer and being carried out by the independent contractor. Day- ton v. Pease, 4 O. S. 80. The city is liable where its agree- ment with the independent contrac- tor provides that the work shall be done under the direction of the civil 221 engineer or other person appointed by the city council for that purpose. Cincinnati v. Stone, 5 O. 'S. 38. See Steubenville v, McGill, 41 O. S. 235. ‘See also Bridge Co. v. Steinbrock, 61 O. S. 215; Massillon v. Huff, 32 C. C. 333; 14 C. C. (N. S.) 193; Mor- rissey v. Cincinnati, 14 C. C. (N. 8.) 17; Williams v. Haton, 12 N. P. (N. 8.) 183. The fact that the city gave a per- mit to use part of a street for plac- ing building materials, etc., would not make it liable to one injured by failure to guard the obstruction, un- less the city had notice and was guilty of negligence. Columbus v. Penrod, 73 O. S. 209; or unless the permit is to do something neces- sarily dangerous. Gable v. Toledo, 16 C. C. 515; District of Columbia v. Woodbury, 1386 U..S. 4650; Chapman v. Lepotsky, 23 C. C. (N. 8.) 90. Municipality is liable for injury caused by failure to guard hole dug in a street by telephone company with understanding that municipal- ity would immediately erect a pole therein. Central Union Tel. Co. v. Conneaut, 16 O. F. D., 259. Insufficient settlement by a neg- ligent contractor for an injury suffered on a defective sidewalk is not a bar to further recovery from the city on account of the Same accident. See Semeraro v. Cleveland, 21 N. P. (N. 8S.) 26. In the case of such an accident the city and the contractor are not joint tort feasors, and their concurrent acts of negligence, the one of commission and the other of omission, do not permit of their being joined either with or without the abutter in the same action. Jb, STREETS—-CONTROL BY COUNCIL. § 3714 Notice as a condition prece- dent to liability.—The liability of municipality growing out of its duty to keep the streets, ete., in repair and free from nuisance may arise either from actual wrongful acts on the part of the municipality or its agents, such as an improper con- struction of a street or sidewalk or dangerous excavation, or from its neglect to act, such as its failure to remove obstacles or to make repairs. In the former ease the liability of municipality arises without any notice to it. Middleport v. Taylor, 2 C. C. 366; Hewitt v. Cleveland, 21 C. C. 505; McGovern v. Mt. Ver- non, 22 B. 363; Taft v. Cincinnati, 52 B. 350. In the latter case the liability arises only after notice, actual or constructive, to the mu- nicipality of the dangerous obstruc- tion or condition and its failure thereafter to remove it. Alliance v. Campbell, 17 C. C. 595; Groveport v. Bradfield, 2 C. C. 145; Chase v. Cleveland, 44 O. S. 505. Notice or knowledge requisite.— The liability of a municipality under this section can only be established by proof of notice or knowledge of a dangerous condition in a street, or other public place as therein enum- erated, or of its existence for such length of time as to impute notice or knowledge, or by proof that the agents and officers of the munici- pality actively caused such condition. Bello v. Cleveland, 106 O. S. 94. Such notice or knowledge is not established by proof that an agent or officer of the municipality knew of certain acts of an abutting property owner, which had previously caused another nuisance in the same vicin- ity; nor under such circumstances is the municipality rendered liable. Jb. § 3714 Same as to pile of bricks left in street. Horner v. Spence 17 C. C. (N. S.) 28; 39 O. C. C. 523. As to notice where defect is eaused though work is done in ac- cordance with plan adopted, see Cir- cleville v. Sohn, 59 O. S. 285. See further as to latent defect in street, McGovern v. Mt. Vernon, 22 B. 363. Actual notice means notice to the officers having authority over the removal of such nuisances. McGov- ern v. Mt. Vernon, 22 B. 363; Cleve- land v. Payne, 72 O, S. 347. So notice to lighting superin- tendent is notice to the city of un- guarded excavation for electric light pole. ‘Central Union Tel. Co. v. Conneaut, 16 O. F. D. 259, So where platform scales in a market place were removed, leaving a dangerous excavation, the fact that the city auditor knew of the exca- vation, notified new lessee of market space and that superintendent of market was present at the time of removal would show notice to mu- nicipality. Nitz v, Toledo, 22 C. C. 454; Toledo v. Nitz, 3 C. C. (N. S.) 532; 23 C. C. 350. Notice to policeman would not be actual notice to the municipality unless municipality was authorized to and did prescribe duties of po- licemen such as to make them its agents “in respect to its duty to keep the streets open and in repair.” Cleveland v, Payne, 72 O. S. 347. Constructive notice is shown by evidence of facts from which it would arise. Toledo v. Radbone, 3 CG. .G.. (N,S,),,/382; . 28 Cy G28 (affirmed, 68 O. 8S, 687). As to what facts show constructive notice, see generally Shelby v. Clagett, 46 O. S. 549 (knowledge of general defect in THE OHIO MUNICIPAL CODE. 222 sidewalk not notice of particu- lar defect). As to when constructive notice is shown because the defect or obstruc- tion remains for such a length of time that the municipal authorities in the exercise of ordinary care ought to have known of it, see Cin- cinnati v. Frazer, 18 C. C. 50; Groverport v. Bradfield, 2 C, C. 145 (affirmed, 30 B. 351); Fremont v. Dunlap, 69 O. S. 286. .P. (Nz S.) 41; Lunkenheimer v. Cincinnati, 23 C. C. 617; Milliken v. Bowling Green, 9 C. C, 493. But see Wins- low v. Cincinnati, 6 N. P. 47; Toledo v. Converse, 21 C. C. 239; where ac- ceptance by public user is recog- nized. A common law dedication of a street is not proved by evidence that the original owner of the premises improved the street and sold lots with reference to it, re- ferring to an unrecorded plat, and the city renamed the street, placed a sign with the new name at a corner of the street, and gas lamps on it, renumbering and cleaning the street. Hillman et § 3723 al. v. Realty Co., 19 C. @. ( N.S.) 330. Dedication by plat in 1837 required no acceptance. Morison v. Cleveland, 17 C. C. (N. 8.) 427. An unsigned and unacknowl- edged plat placed on record in the county recorder’s office in 1856, together with deeds of the same period, referring to a roadway thereon indicated, and followed by its use thereafter by the pub- lic, held sufficient to constitute dedication. Cincinnati v. Leeds, 20° G.OC SNe S.) 2025293 Ohi eA pp: 123. Motion .to dismiss petition in error sustained by Sup. Ct. Decwels L914. As to what acts of officials will constitute such acceptance, see Ry. Co, v, Carthage, 36 O. S. 631 (ordi- mance granting street railway company right to use street); Dick v. Toledo, 11 C. C. 349, 350; Cleve- land v. C. C. C. & St. L. Ry. Co., 19 Dec. 372; Bonebrake v. Colum- bus, 18 Dec. 367; GUN. P.7(NUSS.) 41. Estoppel.—No estoppel on munic- ipality to claim dedication because of assessment and taxation of land claimed. Reynolds v. Newton, 14 C. C. 433; but, see contra, Toledo v. Converse, 21 C. C, 289, and Lun- kenheimer v. Cincinnati, 3 C. C. (N. S.) 143; 28 C. C. 617. Deed of dedication estops persons under it from denying existence of highway, although highway is not such in sense that public must _ repair. Hayes v, Park Co., 13 Dec. 67. See further Abraham y. Cincinnati, 13 Dec. 619. Right to keep open undedicated street.—Abutters upon an undedi- cated street have a right to have it kept open sufficiently for in- THE OHIO MUNICIPAL CODE. 234 gress and egress to and from their lots. Hillman et al. v. Realty Cots 19) C.-0., CNS: i330. Statutory dedication.—In the case of a statutory dedication, there must be some form of grant or transfer to the municipality, and all the statutory requirements must have been complied with. Sullivan v. Columbus, 12 Dec. 650; Abraham v. Cincinnati, 13 Dec. 619. A statutory dedication may be made either: (a) By the platting commission making a plat (see § 4348), and the owner accepting the plat, as provided in § 4358, or (6b) By the owner making a plat as provided in § 3584. As to what is necessary to consti- tute a statutory dedication, see Stephenson v. Leesburg, 33 O. S. 475, (imperfect plat); Satchell v. Doram, 4 O. S. 542, (plat not duly executed not per se evidence of al- ley) ; Lockland v, Smiley, 26 O. S. 94, (imperfect plat not duly ac- knowledged not a statutory dedica- tion); Doren v. Horton, 1 Disney 401, (recorded plat without ae- knowledgment does not dedicate) ; Ashley v. Toledo, 13 C. C. 1, (subdi- vision acknowledged only by owners of one-sixteenth of tract) ; Reynolds v. Newton, 14 C. C. 433 (plat not signed by all owners, but all parties to a subsequent partition); Sulli- van v. Columbus, 12 Dee. 650, (im- mediate improvement not neces- sary); (agreement to receive dam- ages awarded by viewers, but no evidence that money was ever paid, does not constitute dedica- tion.) Oberhelman y. Allen, 26 Go. C. (NE-S.) B05%.-7) OH? Appidast: Grantee in esse not necessary to a dedication. William v. Socie- 235 ty, 1 O. S. 478; Brown v. Manning, 6 O. 298. Dedication to a village before, its incorporation is not complete and valid, and a conveyance of the property before creation of the vil- lage operates as a valid revocation of the dedication. Drucker v. Home City, 31 C, C. 466; 12 C. C. (N. 8.) 309 (aff’d 81 O. S. 507). Condition in a dedication does not invalidate it, but the condition becomes inoperative. Richards v. Cincinnati, 31 O. 8. 506. And see Lloyd v. Hulbert, 1 C, S. C. R. 228. Dower can not be claimed in lands dedicated to public use. Gwynne v. Cincinnati, 3 O. 24. What dedication includes.— Dedication of land for street pur- poses carries with it the right to remove lateral support of the resi- due in the improvement of the street. Ross v. Cincinnati, 24 C. C. 43 (aff’d, 67 O. 8. 521); but see Cincinnati v. Skinner et al., 12 Dee. 735; and see also Grant v. STREETS—DEDICATION. § 3723 Hyde Park, 47 B. 831, and Tenney v., Cincinnati, 24 C. C. 237 (aff’d 67 O. §S. 518), holding that where property is. condemned for street purposes the inquiry embraces not only an ascertainment of compen- sation to the landowner for the land taken, but damages to the resi- due of his abutting land which may result from the grading of, the street. Where land is dedicated for a street, the dedication carries with it the right to improve to a rea- sonable grade. Ely Realty Co. v. Elyria, 18 C. C. (N. S.) 288; aff’d without opinion, 86 O. S. 328. As to rights of municipality to use of private sewer in street dedi- cated, see Kinney v. Cincinnati, 18 Dec. 2573.6 N. P. (N. 8S.) 137. Agreement to dedicate, made with grantees of lots in neighbor- hood, whether municipality can take advantage of, see Abraham v. Cin- cinnati, 13 Dec. 619. FORM OF ORDINANCE ACCEPTING DEDICATION. Ordinance No Accepting the plat of .20.y.0 22... Olime eee ae ae addition and confirm- ing the dedication of the streets and alleys thereon shown. Be it ordained by the council of the City [or Village] of .............., State of Ohio, Sec. I. nat thelplat: of .liccu.cc.. PMaUCAIS Boe 2 OLAS aieeste =, addition to said city !or village] be, and the same is approved and accepted, and that the dedication to public use of the streets and alleys thereon shown, he, and the same is hereby accepted:and confirmed. Sec. II. That this ordinance shall take effect and be in force from and after the earliest period allowed by law. President of Council. Clerk. § 3724 THE OHIO MUNICIPAL CODE. 236 Sec. 3724. [Power to procure material to improve streets. ] The council of municipalities, where material for graveling and macadamizing the streets must be transported by rail, shall have like power with county commissioners in case of turnpike roads... [R. S. Sec. 2651; 67 v. 52, § 2.] (1) Power of county commissioners, see § 7479 G. C. VACATION. Sec. 3725. [Vacation of streets; change of name.]* On pe- tition by a person owning a lot in the corporation praying that a street or alley in the immediate vicinity of such lot may be vacated or narrowed,” or the name thereof changed,* the coun- cil of such municipality, upon hearing, and upon being satisfied that there is good cause for such change of name, vacation or narrowing, that it will not be detrimental to the general inter- est, and that it should be made, may declare by ordinance such street or alley vacated, narrowed, or the name thereof changed. And council may include in one ordinance the change of name, or the vacation or narrowing, of more than one street, avenue or alley. [R.S. See. 2652; 98 v. 202; 90 v. 350; 67 v. 78.] can not make an abandonment of part of street. Columbus vy, Phil- (1) For vacation of streets by court, see § 3730. (2) Statutory method exclu- sive.—Streets and highways can be abandoned by municipalities only in the manner provided by statute, and their use can not be destroyed ex- cept for a purpose beneficial to the public. Ry. Co. v. Elyria, 14 C. C. 48, 52. Streets do not become abandoned and revert to the original proprie- tors by nonuser or misuser by the municipality. Williams v. Presby- terian Society, 1 O. S. 478. Abandonment of part of a street by vacation, would not work an abandonment of the rest of the street. State v. Railway Co., 53 O. 8. 189; Cincinnati v. Kirchner, id Dee, 727; 1°N. P. (NW. S.) 198: ordinance fixing width of sidewalk brick, 5 N. P. (N. S.) 449. See also Holmes v. Ry. Co., 15 O. F. D. 906; Cleveland v. Railway Co., 19 Dee. 372 (temporary diversion not an abandonment). Part of county road brought within limits of a municipality hy annexation, can not be vacated by council. Ry. Co, v. Cummins, 34 B. 301 (aff’d 53 O. S. 683); Cleve- land T. & V. R. R. Co. v. Akron, 18 Dec. 231; 6'N. PP. (N.S.) 8h Who may claim damages.— Owners in immediate vicinity of, but not abutting on, street sought to be vacated, can not claim dam- ages for vacation, unless specially injured. In re Ry. Co., 19°C. 308; Doppas v. R. R. Co., 19 C. CG. 582, (aff’d, 66 O. S. 648); Kinnear 237 Mfg. Co. v. Beatty, 65 O. S. 264. Proof of frequent use of vacated street by such owners, and that they would be greatly inconvenienced does not show such special injury, if other egress is pvssible. Kinnear Mfg. Co. v. Beatty, 65 O. S. 264. The intended use of the street by the person to whom it will revert as evidence of lot owner’s injury can not be shown in action under this section. Ib. - Where municipality, to construct a subway under railroad track, low- ered the grade of the east portion of a street on which plaintiff’s lot abutted on the west side, and vacated a part of the west side of the street where it crossed the railroad tracks, but north of paintiff’s lot, plaintiff was held entitled to damages from the municipality and the railway company, for depreciation of value of plaintiff’s property caused by di- version of travel from part of street in front of plaintiff’s lot. STREETS—VACATION BY COUNCIL. £3726 Schimmelmann v. Ry. Co., 83 O. S. 356. See also Cohen v. Cleveland, 43 O, S. 190, Injunction.—Non-abutting own- er will be enjoined from removing fencing on vacated street. Camp- bell v. Mitchell, 17 C. C. (N. 8.) 483. To whom vacated street re- vert.—See notes to § 3729, post. (3) Change of name.—Council can not change the name of a street without good cause, except on peti- tion of abutting owners. Miller v. Cincinnati, 21 B. 121 (edit). Illegal purpose in change of name.—Ordinances passed by council, ostensibly in the exercise of a power to change the names of streets, but really for the pur- pose of nullifying the law of the state, forbidding the grant of a railway franchise unless certain conditions are complied with, are invalid. Carpenter v. Traction Conels-NoP.. ONS.) (ak FORM OF PETITION TO VACATE STREET. To the council of the city [or village] of.............. State of Ohio: The undersigned, owners of lots in the erty [or villageiiol Asa ke ne in the immediate vicinity of......... 25 a eee street; 1romiren ot: ee 2a et oh ih re ae respectfully petition your honorable body that............. street may be vacated between the points named, for the reason that it is no longer of use to the public and its vacation will not be detrimental to the general interest. CE eos ORE cer an Owner of lot No...... Fee ROT AGA Hee Owner of lot No...... (If it is desired to have an alley vacated, or a street or alley widened or the name changed, the above form may be adapted to suit the circum- stances. ) Sec. 3726. [Change without petition. ] When there are two or more streets, avenues or alleys of the same name, in the municipality, the council, by ordinance and without petition § 3727 THE CHIO MUNICIPAL CODE. 938 therefor, may change the name of any such street, avenue or alley, so as to leave only one to be designated by the original name. When in the opinion of the council there is good cause for vacating or narrowing a street or alley, or any part thereof, and that such vacation or narrowing will not be detrimental to the general interest, it may by ordinance and without pe- tition therefor, vacate or narrow such street or alley or any part thereof. [R. 8S. Sec. 2652; 98 v. 202; 90 v. 350; 67 v. 78.] Sec. 3727. [When notice not required.] Notice of the in- tention of council to vacate any street, alley, avenue, or part thereof shall, in all cases, be given as provided in the next section, except when there is filed with council written consent to such vacation by the owners of the property abutting the part of the street or alley proposed to be vacated, in which case such notice shall not be required. [R. 8. See. 2652; 98 v. 202; 90 v. 350; 67 v. 78.] Sec. 3728. [Notice of application to be published.] No street or alley shall be so vacated or narrowed, unless notice of the pendency and prayer of the petition be given by pub- lishing in a newspaper published or of general circulation in such municipality, for six consecutive weeks preceding action on such petition, or, where no newspaper is published in the corporation, by posting the notice in three public places therein six weeks preceding such action. Action thereon shall take place within three months after the completion of the notice. [R. S. Sec. 2653; 67 v. 78.] FORM OF NOTICE. Notice is hereby given that a petition by owners of lots in the immediate WIGUNELY GObita tet) «is <”-\urk w ates street has been presented to the council of the cuy Lor village] of...).0. She eee ee ok , praying for the vacation of said BET OCEAN ATOM filly os ysfasvasgugers LO bitetans inte aha blasters ; and that said petition is now pending before said council and final action thereon according to law will be taken on and after... 2... 56..00006. 19.... (not less than six weeks after date of first publication nor more than three months after completion of notice. ) ore oe. 8 ie) De cle wie whee eles a © bens! 939 STREETS—VACATION BY COURT. § 3729 FORM OF ORDINANCE TO VACATE STREET. Ordinanée. Noi... 5. POMVACA LE cere cay 0959 » & newspaper of general circu- lation in the corporation, for six consecutive weeks ending.............. LOR sean, Whereas, council, upon hearing, is satisfied that there is good cause for such vacation as prayed for, that it will not be detrimental to the general interest, and ought to be made, now therefore, Be it ordained by the council of the city [or village] of.............. miate or Onin, Seeks That. .c<. +t. vanes SULCCUEAT OMI ee tac tus aes) Matenenre Pontes SORT CeO eeanae oe be and the same is hereby vacated. Sec. 2: That this ordinance be and remain in force from and after the earliest period allowed by law. a SSCdi pk teweed wks sie set Lose aes ere SR eee ae 2 tebe President of Council. CSUR AGE GA =a NY ae ee Sec. 3729. [Effect of order of vacation.] The order of the council vacating or narrowing a street or alley which has been dedicated to public use by the proprietor, shall, to the extent to which it is vacated or narrowed, operate as a revocation of the acceptance thereof by the council, but the right of way and easement therein of any lot owner shall not be impaired thereby.? (1) To whom vacated streets revert.—To the streets of a city, the municipality holds a qualified or determinable fee. The limitation upon the title necessarily implies that there is a substantial interest not conveyed which will revert when the street is vacated. This interest is a private right in the nature of an incorporeal hereditament legally attached to the contiguous grounds and erections on them, (Crawford v. Delaware, 7 O. 8, 459, 469; Railway Co. v. Cumminsville, 14 0. S. 6237 [R. S.. See. 2654; 66 v. 232.] Ry. Co. v. Lawrence, 38 O. S. 41) and in case of vacation the land will go to the owner of the abutting property, and not to the original owner of the land at the time it was dedicated or taken for street purposes. Callen v. Electrie Light Co., 66 O. S. 166, 173; Kinnear Mfg. Co. v. Beatty, 65 O. S. 264; Stevens v. Shannon, 6 C. C. 142; Hamilton G. & C. Traction Co. v. Parish, 67 O. S. 181, 190; MeLean v. Cincin- nati, 18 Dec. 745; 7 N. P. (N. S.) 205; but see Lough v. Machlin, 40 § 3730 O. S. 332 (where the street dedi- cated had never been accepted, and the abutting owner’s deed did not give title to the middle of the street). Upon the vacation of a street the whole of which was dedicated out of the property of the grant- ors of the abutting property hold- ers on the west side, the abutting property holders on the east side, whose grantors contributed no property to the original dedica- tion, are entitled to an easement only in the vacated street. The fee of such vacated street subject to such easement is in the abut- ting property holders who are the grantees of the original grantor who dedicated the street. Ober- helman y. Allen, 15 N. P. (N. 8.) 75; and see s. c. 26 C. C. (N. 8.) 305; 7 Oh. App. 251. Division of land in vacated street where the contributions of abutting owners were unequal, see Mt. Union v. Misteleski, 22 N. P. (N. 8.) 504. Conveyance of the abutting prop- erty, even after vacation, conveys the grantor’s interest in the street, if this is not especially reserved in the deed. Kerr v. Commissioners, 42 B. 193, The reverter is subject to such rights as other property owners have in the property as a necessary means of access to their property. Kinnear Mfg. Co. v. Beatty, 65 O. S. 264; Stevens v. Shannon, 6 C. C. 142. And property owner may en- join obstruction to his only means of access. Ib. Sec. 3730. court. |? THE OHIO MUNICIPAL CODE. 240 But a property owner whose land abuts on street, a part of which, not in front of his property, is vacated, has no right to enjoin the obstruc- tion of the vacated portion by the owners to whom it reverted, where he has reasonable access to his prop- erty. He must suffer a special in- convenience different in kind from that of the general public, before he is entitled to relief. Kinnear Co. v Beatty, 65 O. S. 264. But an alley vacated by council can not be obstructed by petitioning owner at its only exit, as against a nonpetitioning abutting owner, without furnishing another reason- able means of egress therefrom, not- withstanding nonpetitioning owner has access to a street in front of his lot. Schlemmer vy, Furniture Co., 2N. P. (N. 8.) 293; 7 C. C. (N. 8.) 468. Merely failing to appear and pro- test against vacation does not estop nonpetitioning owner from enjoining obstruction. Ib, Effect of section.—This rigit which other lot owners have by law is merely preserved by this section, and it does not create any new right. Kinnear Mfg. Co. v. Beatty, 65 O. S. 264. See also Schlemmer v. Furni- ture Co., 15 Dec. 92; 2 N, P. (N.S8.} 293. When not applicable——The pro- visions of this section as to the right of way and easement of a lot owner in a vacated street, do not apply to streets the land for. which had been appropriated by the municipality. Bohm vy. Kel- ley, 17 C. C. (N. 8S.) 265, [Vacation or establishment of street or alley by On petition filed in the court of common pleas by any person owning a lot? in a municipality, for the establish- 241 STREETS—-LABOR UPON. § Slol ment or vacation of a street or alley in the immediate vicinity of such lot, the court, upon hearing, and being satisfied that it will conduce to the general interests of such municipality, may declare such street or alley established or vacated, but the remedy shall be in addition to those prescribed in this title. [R. S. See. 2655; 37 v. 44; 76 v. 25.] (1) Vacation of streets by Not erroneous to refuse vacation council, see § 3725 et seq. ante. When section applies.—The statutory remedy may be resorted to in all cases where there has been a clear nonuser of the street by the public for twenty-one years. Nail & Iron Co, v. Furnace Co., 46 O. S. 544, 549. where it is merely shown that street is not demanded by present needs of the city. To vacate street, court must be satisfied that vacation will conduce to general interests of city. In re Vacation Michigan Street, 31 C. C. 426; 12 C. C. (N. 8.) 414. No authority to narrow a street or alley, under this section. Dorsch v. Glass Co., 74 O. S. 208. (2) Municipality is not a lot But this section does not apply where the city never had title to the parcels sought to be vacated or had forfeited title. Miller v. Cin- cinnati, 5 C. C. 583. Owner within the procedure here See Ry. Co. v. Elyria, 14 C. C, 48, provided for. In re vacation Hotel 52. Alley, 25 B. 89. FORM OF PETITION FOR VACATION OF STREET. OMTLOLe COMMON EICASS. ty 6.t.c sonic occ seneereaes County, Ohio, In re vacation of aC PERCE REE street. OAL Petitioner represents that he is the owner of lot No...... Ole ts tae ee ess a street in the city [or village] of..............0+65 , State of Ohio, in the Mamediate ‘Vicinity Of. ......6 [or village]. jofa.2s.Jeee.0 i eieia ¢ over, along and upon the fol- lowing streets (here define the route) upon which route there may be main- tained and operated a single [or double] track street railway with the neces- sary switches, turnouts, curves, loops, Y’s, poles, wires and all other necessary fixtures and apparatus, and to be operated by electricity or other motive power except steam, and to be furnished and equipped as a first-class street railroad, as may be more particularly provided for in the ordinance making the grant to the successful bidder therefor; and, Be it resolved, that the grant for the operation of such street railroad over the route herein established shall be for a period of...%....... years (not more than 25 years) and, a Eee | | : 275 STREET RAILROADS. § 3770 Be it resolved, that a grant for the above period over said route shall be made to the individual, individuals or company which shall agree to carry passengers over said route and from and to all points thereon for the lowest rates of fare and, Be it resolved, that the clerk [or clerk of the village] be and he is hereby instructed and directed to give notice by publication of the said application Ro oreo shear Sails sikazo" « (here insert name of applicant) as required by law, and in said notice to invite bids for the construction, maintenance and operation of a street railroad over said route in accordance with the terms and conditions of this resolution. Etc ites ant Uh Sar ae Gin idarictes canis Rel Oats es ve dt nbs elvan hue, Sie anh eeea ‘et bee. /¢ 6 (9 10) eh!6 0) 6 sitats dbo ©, b 0. 6) 0 6..¢) 6 00 0 6 06) ace" Coys ele |S 6 President of Council. FORM OF ADVERTISEMENT INVITING BIDS FOR STREET RAILROAD GRANT. LEGAL NOTICE. City [or village] of.............--- , Ohio Notice is hereby given that on the ...... BOY. O8 Puteat erin’: Lae application was made to the council of..........-. Wy OY cas cs « Scheel hake eee permission to construct, maintain and operate a street railroad within said city [or village] over, along and upon the following streets, to-wit: (Here describe route) and, That a street railroad route over, along and upon the above named streets has been established in the manner provided by law, upon which route there may be constructed, maintained and operated for a period of Rarities «2h years a single [or double] track street railroad operated by electricity or other motive power except steam, and subject to the terms and conditions provided in the resolution establishing said route and directing this advertisement, on file in the office of the clerk of council for village clerk] of............ , State of Ohio; and That bids will be received up to 12 o’clock noon, ...........-- 5d Deadets for the construction, maintenance and operation of a street railroad over said route, subject to the terms and conditions set forth in said resolution and for the lowest rate of fare for transporting passengers slong and over said route. mist isiia-e « p) © *s, wis) pile, BG) ed 036,06 6 © 60 wie © « ae, @.6 ahaa) he. .6 6 \c, 6 (0).0 © (6, .0)0, Bis 00 0 0 60 66 President of Council. § 3770 THE OHIO MUNICIPAL CODE. 276 FORM OF STREET RAILROAD GRANT. Ordinance No...... Granting leave and permission to............. to construct, maintain and operate a street railroad over, along and upon certain streets in the city [or village] of......... bititehe. a4 , State of Ohio. application in writing to the council of the city [or village] of........... : State of Ohio, for the right to construct, maintain and operate a street railroad over, along and upon certain streets in the city [or village] of seb etes GINA , State of Ohio, hereinafter specifically set forth and, WHEREAS, on the ...... day Of i050. 0e% , 19...., a resolution was duly passed establishing a street railroad route over such streets and notice. of the establishment of said route and of said application was duly pub- lished according to law, and, ; WHEREAS, .........4 [naming grantee] has made a bid for said route which said bid offers rates of fare which are the lowest rates bid, and has previously obtained the written consent of a majority of the property holders upon each of said streets or parts thereof on the line of the said proposed railroad represented by the feet front of the property abut- ting thereon; Now, therefore, be it ordained by the council of the city [or village] of Ais Abe , State of Ohio. See: I... That-said: ! 2 YR 2... (naming grantee) its successors and as- signs be and are hereby granted the right and permission to construct, maintain and operate a single [or double] track street railway to be oper- ated by electricity or other motive power except steam, with the necessary switches, turnouts, curves, loops, Y’s, poles, wires and all other necessary fixtures and apparatus, over, along and upon the following streets in the city [or village] of............. , viz: (Here insert descrip- tion of route). Sec. 2. (Describe character of construction and equipment, agreements as to repair of streets and other special requirements desired, and include agreement to carry police officers and firemen free.) Sec. 3. This grant shall remain in force for the period of BPO ie years from and after its acceptance by............. (name of grantee). Sec. 4. This ordinance shall take effect and be in force from and after the earliest period allowed by law and after the filing with the clerk of council [or village clerk], of the written acceptance thereof by........... (name of grantee). SSE ROO 0.618 8 eee) 608) Bye le 1610 Lake weve lal (Oe President of Council. KEP Oe ep Beal Wl ees eee sine ie ioe O08 le hee Sie 277 STREET RAILROADS. § 3771 Sec. 3771. [Grant not valid for more than twenty-five years.] No grant or renewal of a grant for the construction or operation of a street railroad, shall be valid for a greater period than twenty-five years' from the date of such grant or renewal, and after such grant or renewal of a grant is made, whether by special or general ordinance, the municipality shall not, during the term of such grant or renewal, release the grantee from any obligation or liability imposed by the terms of such grant or renewal of a grant.” § 30. ] (1) Period of grant.—Renewal of grant for period longer than that allowed by law held valid for legal period. Sommers vy, Cincinnati, 8 Ree. 612. Unlimited grants made prior to statutory limitation held perpetual. State ex rel. v. Columbus Ry. Co., 1 C. C. (N. 8.) 145; 24 C. C. 609; but see 73 O. S. 363. But such grants are subject to revocation by legisla- ture. Ib. See also East Ohio Gas Co. v. Akron, 81 O. S. 33, (where it is held that a municipal franchise granted to a gas company and silent as to duration of grant is not perpet- ual but exists only so long as both parties consent. ) (2) Release from obligation.— Such a section as this forbids any release by municipal authorities of amount due the city under its street [99 v. 103, § 30; 96 v. 32, railway grant, and neither the prin- ciples of account stated nor of accord and satisfaction based upon a less amount than that actually due have any application. Cincinnati St. Railway Co. v. Cincinnati, 8 N, P. 80. But a provision such as this would not prohibit municipal corporation from changing the rate of fare upon proper consideration. St. Ry. v. Cleveland, 12 O. F. D. 635. Better accommodation would be a consider- ation for the modification of the terms of a grant. Clement v. City, 16 B. 3855, (affirmed in Supreme Court, 19 B. 74.) There is nothing to prevent a city council and a street railway company from terminating a grant by agreement previous to its expiration, for good cause, and re- newing the grant, State v. E. Cleve- land Railroad Co., 6 C. C. 318. Sec. 3772. [When franchise shall be submitted to vote.] Repealed, 104 v. 238. Sec. 3773. pealed, 104 v. 238. [How the election shall be conducted.] Re- Sec. 3774. [Notice of the election; form of ballots.] Re- pealed, 104 v. 238. § 3775 THE OHIO MUNICIPAL CODE. 278 Sec. 3775. [Grade of streets when street railroad is con- structed.] Before a street railroad shall be constructed on any street less than sixty feet in width, with a roadway of thirty-five feet or under, the council shall provide that the crown of the street shall be made a nearly flat uniform curve from curb to curb, without ditch gutters, and in such manner as to give wheeled vehicles the full use of the roadway up to the face of the curb. When the tracks of two street rail- roads, or of a street railroad and a steam railroad, cross each other at a convenient grade on a street, the crossings shall be made with crossing-frogs of the most approved pattern and materials, and kept up in repair at the joint expense of the companies owning such tracks.?’ [R. 8. Sec. 2503; 78 v. 296; 66 v. 217, § 418.] (1) Validity.—This section is Other requirements. — Street valid and applies whether lines were constructed before or after the pas- sage of the act. Cin. St. Ry. Co. v. C. H. & D. R, R., 32 B. 4. Frogs at crossings.—One com- pliance with this section is not enough, if a new frog, found to be better, is required. Cin. St. Ry. Co. railroads crossing steam railroads need not provide interlocking de- vices as required by § 598 G, C. The requirements in case of crossing of street railway and steam rail- road are only those in § 3775 and $9125 (Ch GSH Ste Ryman Cie. & I. Ro ReCo., 21 ©. Casal. v0. H. & Di R. RysZebe 4: See § 9125 in Part II. Sec. 3776. [Pavement of streets where railroads are con- structed.] The council may require any part or all of the track, between the rails of any street railroad constructed within the corporate limits, to be paved with stone, gravel, boulders, or wooden or asphaltic pavement, as may be deemed proper, but without the corporate limits, paving between the rails with stone, boulders, wooden or asphaltic pavement shall not be required.! (1) Recovery on default of pavement.—Where city ordinance requires it, a city may, on default of company, improve the street be- tween tracks and recover the cost in an action against the company. Columbus v, Railroad, 45 O. 8S. 98. A city having paved between rails [R. S. See. 2004; 87 v. 246; 66 v. 217, § 414.] at request of the company, may levy a tax on railroad to collect for its share of the work. Cleveland v. Cleveland & Newburgh R. R., 1 Clev. 304. Validity of requirement.—See Cleveland vy. Cleveland R. R. Co., 1 N. P. 413, reversed; 60 O. S. 586. 279 STREET RAILROADS. § 3777 adjacent to its rails, see Railway v. Springfield, 15 N. P. (N. 8S.) 241. (Aff’d by Court of Appeals, not reported.) Annexation—As to right of city, after annexation of territory, which includes part of an inter- urban railway, to compel the company to pave between and Sec. 3777. [Council may grant extension of street railroad.] The council of a municipality may grant permission, by ordi- nance, to any corporation, individual, or company, owning, or having the right to construct, a street railroad, to extend the track, subject to the provisions of law relating to the con- struction, operation and extension.of street railways, within or without, or partly within or without any municipal cor- poration, on any street or streets where council deems such extension beneficial to the public. When such extension is made, the charge for carrying passengers on a street rail- road so extended and its connections made with any other road or roads, by consolidation, shall not be increased by reason of such extension or consolidation. 17 v. 42; 66 v. 140.] (1) Other provisions relating to extensions will be found in §§ 9101, 9103—9106 under title “Street Ratlroads in Municipal Limits” in Part II, The above section sbould be con- strued with the other laws on the same subject. See R. R. Co. v. Com- missioners, 56 O. S. 1, 7; Hattersly v. Waterville, 26 C. C. 226, 229; 4 Ge. (N, 8.) 242 (aff’'d 740. °S. 466). Under former statutes, it was held that § 2505 R. S. (now § 3777 above), related to lines wholly with- in municipal limits, and the exten- sion of such lines, while §§ 3437, 3438, 3439 et seq. R. S. (now §§ 9100-9107 G. C.) related to street railroads and extensions wherever located, and where there was a con- flict as to provisions for extension of municipal lines the special provi- [R. 8. Sec. 2505; sions of § 2505 should govern. C. C. C. & St. L. Ry. Co. v. U. B. & N. By-. C0526 16. 6. 1805s GF" C. (N. 8S.) 583 (aff'd 73 O. S. 364). Extensions.—A marked distine- tion is drawn between an original grant for construction and a grant for an extension of a street railway. In the case of an original grant for construction, the grant can be made only upon publication of notice of pendency of the application and to the company offering to carry pas- sengers at the lowest rate of fare; the grant of a right to extend tracks can only be granted to a company owning or having the right to con- struct a railroad, and there is no bidding for the grant or notice of the application. Day v. Railway Com- pany; 27°C. ©. 60; 5 C. © (N. 8S.) 393; C. C. C. & St. L. Ry. Co. v. U. B. & N. Railway Company, 26 § 377 C. C. 180. See also Belle v. Glen- ville, 27 C. C..181; 5 -C..C. (N.S.) 461 (aff’d 73 O. S, 392). Extension may be granted beyond the termini named in the articles of incorporation of the company. Sims v. St. Railroad, 87 O. S. 556. Extension need not run in the gen- eral direction of the original route or begin at one of the original termini. Cincinnati v. Cincinnati St. Railway, 31 B. 308; Belle v. Glenville, 27 OC. C.-181; 5 C. C. (N. S.) 461 (aff'd, 73 O. S. 392). An extension may be along other streets and not in a straight line. Sommers v. Cincinnati, 8 Rec. 612. An extension granted for a pe- riod extending beyond remaining period of grant of original route does not extend grant of such orig- inal route, and the extension ig valid only during remaining period of original grant. Cleveland Elec. Ry. Co. v. Cleveland, 14 0. F. D. 513; 2:0. TB. 751600. ae A338. An extension for an electrie rail- way is not invalid because the orig- inal grant was for a railway using horses as motive power. Belle v. Glenville, 27 CoC. T8ie whi G. oC. (N. 8S.) 461 (aff'd, 73 O, S. 392). THE OHIO MUNICIPAL CODE. 280 An ordinance granting the ex- tension is not an act conferring cor- porate power. The corporate power » is conferred by the statute under which the company is incorporated and the ordinance is merely a per- mit. Sims v. St. Railroad Co., 37 O. S. 556. Consents.—In the case of con- sents obtained for the original con- struction of a street railroad, they enure to the benefit of the lowest bidder, no matter from whom ob- tained; but consents obtained for the extension of street railways enure to the benefit only of the railway specified. Day v. Railway Co., 27 C. C. 60; 5 C, C. (N. Si.) 393; Isom v. Low Fare Ry., 29 C. C. 583, 591. Beyond city limits—An ordinance granting extension along highways outside the city limits merely con- fers the power and does not dis- pense with the necessary agreement with the county commissioners, or condemnation. Railroad Co. v. Com- missioners, 56 O. S. 1; Richland Co. v. Citizens’ Electric Railway Co., 9 O. C. 183. INTERURBAN RAILROADS.! Sec. 3778. [Franchises to interurban railroads for the pur- pose of securing terminals.] The council of any municipality may grant a franchise upon such terms and conditions as it may prescribe for the building of any interurban railroad hay- ing, constructing or building, ten miles or more of track out- side of such municipality, to any company or companies using electric or other motive power, save steam, for the purpose of securing to such company or companies access to or terminals within such municipality. The council may authorize such company to build and construct tracks and to operate cars 281 INTERURBAN RAILROADS. § 3779 thereon, on any street or streets, or parts of streets, of such municipality, upon which tracks have not already been laid and where the consent of the owners of a majority foot front- age has already been obtained by such company. [98 v. 253, §1.] (1) Other provisions.—See Council may stipulate for pay- §§ 9117 et seg. under title “Street ment of lump sum into treasury Railroads in Municipal Limits,” in for upkeep of streets. Op. Atty. Part II. Gen. (1918), p. 795. Sec. 3779. [Condemnation proceedings when they can not agree.]| The council may permit such interurban railroad to make use of the tracks or such parts of the tracks of any existing street railroad company within the limits of the municipality by agreement with such existing company. If no such agreement can be arrived at, the interurban railroad company may be authorized by council to condemn the right to make use of the tracks of such existing company upon the payment of proper compensation. But the interurban railroad company shall be permitted to condemn and make use of not more than one-eighth of the trackage of such company within the municipality, or so much as may be necessary to give the interurban company access to terminals within the municipal- ity, or to enable such company to secure a right of way over such tracks through such municipality. The interurban rail- ‘way company seeking permission to enter or pass through a municipality shall not be required to submit to competitive bidding on such routes. [98 v. 253, §1.] Sec. 3780. [Competitive bidding shall not be required.] No grant or franchise shall be made to such interurban company for a period longer than twenty years, and no fran- chise so granted shall be used for the purpose of operating a municipal street car system, it being the only intent hereof to provide a method whereby bona fide interurban railroads may gain access to, and a terminal within, and an exit from, a municipality. [98 v. 253, §1.] § 3781 THE OHIO MUNICIPAL CODE. 282 STEAM RAILROADS.! Sec. 3781. [Regulation of rate of speed.] When a railroad track is laid in a municipal corporation, the council by ordi- nance may regulate the speed of all locomotives and railroad cars within the corporate limits, but such ordinance shall not require a less rate of speed than four miles an hour, and in villages having a population of two thousand or less, it shall not require a less rate than eight miles an hour. The corporate authorities, by civil action, may recover fron an engineer, conductor, or company, violating such ordinance, not less than five dollars nor more than fifty dollars for each offense.? [R. S. See. 2500; 74 v. 132.] (1) Other provisions relating to steam railroads within municipal limits will be found in Part II under title “Steam Railroads in Municipal Limits.” (2) Liability of company.—A traveler crossing a railroad track has a right to presume that the company will conform to a regula- tion, passed by the municipality, prohibiting the running of trains at a greater rate of speed than that named in the ordinance. Hart v. Devereux, Receiver, 41 O. S. 565. The fact that the speed allowed by ordinance is exceeded is not proof of negligence, but may be considered by the jury on question of negli- gence. L. S. & M. S. Ry. Co. v Johnston, 25 C. C. 41; 106. C. (N. 8S.) 3857; Meek v. Pennsylvania Co., 38 O. S. 632; Ry. Co. v. Herrick, 49 O. S, 25, 32; Bell v. Pistorius, 18 CC. 78; L. 8. & VM, CBS Ry: Co. v. Ehlert, 19 C. C. 177; OC. H. & D. Ry, Co. v. Murphy, 17 C. C. 223; Watson v. Erie R. R. Co., 8 N. P. 18; Ry. Co. v. Trainer, 18 ©. C. 716; Railroad Co. v. McCormick, 24 CACaise: Power not limited to crossings.— This section applies to places with- in municipal limits other than public crossings. Blancke v. R. R. Co., 103 O. 8. 178. Ordinance regulating speed under authority of this section is invalid if it provides for enforce- ment by criminal proceedings. Cas- key v. Belle Centre, 8 N. P. (N. S.) 153; 19 Dec. 726. An ordinance regulating speed, adopted pursuant to this section, is a valid exercise of the police power, unless it clearly appears that such ordinance unduly restricts speed. Blancke v. R. R. Co., 103 O. S. 178. EXCAVATIONS.? Sec. 3782. [Damage from excavation.]? If the owner? or possessor of any lot or land,* in any municipality, digs, or causes to be dug, any cellar, pit, vault, or excavation, to a greater depth than nine feet® below the curb of the street or 283 EXCAVATIONS. § 3782 streets on which such lot or land abuts, or, if there be no curb, below the established grade of the street or streets on which such lot or land abuts, or, if there be no curb or established grade below the surface® of the adjoining lots, and by such excavation, causes any damage to any wall, house, or other building upon the lots adjoining thereto, such owner or posses- sor shall be liable, in a civil action, to the party injured, to the full amount of such damage.” When there is a curb or established grade, the depth of such excavation, at any point thereof, shall be measured downward from the pitch line pro- jected laterally over the lot or land from and between the corresponding points in the nearest curb or established grade opposite the ends of such pitch line. 323. 66 v. 232.] (1) - Sidewalk.—For provision against obstructing or digging up sidewalk, see § 12639 G. C., under title “Streets and Public Grounds” in Part II. (2) Validity.—This act is con- stitutional. Emery v. Coles, 5 N. P. 199. (3) Owner does not include school board holding property for school purposes. Bd. of Ed. v. Volk, 72 O. S. 469. A municipal corporation does not possess such ownership in the streets as to render it liable, un- der the provisions of this section, for damage to ‘‘any wall, house or other building’’ from an ex- cavation in a street to a greater depth than nine feet. Brinkmeier v. Cincinnati, 20 N. P. (N. 8.) 346, (4) Lot or land.—This section does not apply to improvements in streets and alleys. Allison v. Cin- cinnati, 2 0. 8. C. R. 462. (5) No support required when.—One may dig a cellar nine feet without supporting adjacent walls. The owner of a lot who erects [R. 8. Sec. 2676; 97 v. a building that would be injured by the excavation on the adjoining lot to the statutory depth does so at his peril. McMillan v. Watt, 27 O, 8. 306. But the lot owner digging to the statutory depth is not relieved from negligence by this statute. Cincin- nati, étce., R. R. v. Pfau, 9 B. 200 (aff'd, 16 B. 7). How to determine nine foot depth.—Where a lot extends from one street to another of a different grade the nine feet below the curb is a line from nine feet below the up- per curb to a point nine feet below lower curb. Elshoff v. Deremo, 3 Ns Bo27 3; (6) Surface.—Surface means the actual surface whether caused by filling in or not, and not the natural surface before any filling. Burk- hardt v. Hanley, 23 O, S. 558. (7) Construction of section.— The clear meaning of §§ 3782 and 3783 is to limit their application to a lot abutting on the same street as that upon which abuts the lot in which the excavation is made. Tay- lor v. Day, 6 N. P. 447. § 3783 The effect of this section is to am- plify the common-law rule as to lateral support, so as to create a liability for removing the lateral support of buildings where the ex- cavation goes more than nine feet below the street grade, but it does THE OHIO MUNICIPAL CODE. 284 not modify the common-law rule as to the lateral support of the soil it- self. Belden v. Franklin, 28 C. C. 373; 8 C. C. (N. S.) 159. But see Hall v, Kleeman, 4 N. P. 201; Volk v. Board of Education, 7 N. P. 164 (reversed 72 O. S. 469). Sec. 3783. [Depth of excavation allowable.] Such owner or possessor may dig, or cause to be dug, any such cellar, pit or excavation, to the full depth of any foundation wall of any building upon the adjoining lot or lots, or to the full depth of nine feet below the established grade of the street or streets whereon such lot abuts, without reference to the depth of ad- joining foundation walls, without incurring the liability pre- scribed in the preceding section, and may, on thirty days’ notice to adjoining owners, grade and improve the surface of any lot to correspond with the established grade of the Street, streets or alley, upon which such lot or land abuts, with- out incurring liability. 97. v.. 3823.] (1) Right to grade.—A lot own- er in a city or village may with im- punity, in the absence of negligence and upon giving proper notice, grade his lot to conform to the grade of the street. Hall v. Kleeman, 4 N. Bie 2dny 203. But where statutory notice is not given the common-law rule would prevail. Jb. Liability of owner when noti- fied.—Where owner has _ received notice of excavation in adjoining lot and his house is damaged by such excavation he is liable to a tenant injured thereby. Kuhn vy, Remmler, 16 B, 366. Damage caused by flood in cel- lars.—Where an owner excavates below nine feet and an extraor- dinary flood fills his cellar and that of his neighbor, he is not liable for damage caused by pumping the water out of his [R. S. See. 2677; 91 v. 211; 66 v. 232; own cellar, thereby causing the pressure in the neighbor’s cellar to push out his walls. Brewing Co. v. Ulland, 97 O. S. 210 (re- versing Ulland v. Brewing Oo., 28 O. CO. A. 529). Where the owner of an adjoin- ing lot excavates upon it without giving notice of his intention so to do as required by statute, he becomes liable under the eommon law for damages resulting to the land itself, Heimerdinger vy, Schneider, 22 C. O.- (N. 8.) 415. Measure of damages.— Where an excavation is made to a greater depth than nine feet, liability for resulting damages to adjoining property is limited to that caused by going below nine feet, and not that caused by the whole excava- tion. Carrel v. Building Co., 21 C. C. (N. S.) 598 (aff’d by Sup. Ct. without opinion). 285 EXCAVATIONS. § 3783-1 Sec. 3783-1. [Municipalities empowered to change streams and highways for certain purposes.] When it is necessary in the construction and in the protection thereof by any munici- pal corporation, of wells, pumps, cisterns, aqueducts, water pipes, dams, reservoirs, reservoir sites, sewers, drains, sewage disposal or water purification plants and waterworks, for sup- plying water to itself and its inhabitants, or disposing of sewage, to relocate, straighten, change or cross a road or stream of water, such municipal corporation may relocate, straighten, change or cross said road or stream, but without unnecessary delay it shall place such road or stream in such condition as not to impair its usefulness. [103 v. 861.] § 3784 THE OHIO MUNICIPAL CODE. 286 CHAPTER 4. TAXATION.? LEVY AND COLLECTION. Sec. 3784. [Power of council to levy and collect taxes.]? Each municipal corporation shall have special powers, to be exercised as provided by law, to levy and collect taxes upon the real and personal property within the corporation for the purposes of paying the expenses of the corporation, construct- ing improvements authorized, and exercising the general and special powers conferred by law.*® § 32. ] (1) Smith law.—The provisions of this chapter relating to the levy of taxes upon property within the municipality, have been considerably modified by the provisions of the Smith law. Sections 5649-1 to 5649-6, inclusive, G. C. These sec- tions will be found under the title eePaxation,2? Iilebachslae (2) Old sections, 2262, 2263, 2682, 2683, 2684 R. S., repealed. (3) No inherent power to tax. —A municipal corporation has not | the inherent power to tax. It can exercise this power only when clear- ly delegated to it by statute. Mays v. Cincinnati, 1 O. S. 268; and it is strictly limited to the manner of exercise which the statutes provide. Reed v. Toledo, 18 O. 161, 166. Public purpose.— Legislative discretion.—Taxes should be levied only for those purposes which prop- erly constitute a public burden. But what is for the public good and what are public purposes and what [96 v. 26, §9; 96 v. 33, properly constitutes a public bur- den are questions which the legis- lature must decide upon its own judgment and in respect to which it is vested with a large discretion which can not be controlled by the courts, except, perhaps, where its exercise is clearly evasive, and where, under pretense of lawful authority, it has assumed to exer- cise one that is unlawful. Walker v. Cincinnati, 21 O. S. 14, 41; and the power of the legislature to authorize local taxation can not be judicially denied on the ground that the purpose for which it is exercised is not local unless the absence of all local interest is clearly apparent. Walker v. Cincinnati, 21 O. S. 14; State v. Trustees, 20 O. S. 362. Payment of debts.—It is a general principle of municipal law that where a power is granted to a mu- nicipality to incur indebtedness, a commensurate power to levy the necessary tax to discharge the in- I87 TAXATION—LEVY OF TAXES. § 3785 debtedness, is implied. Old sec. be maintained to compel the county 2683 R, S. was held to confer power auditor to place the municipal tax to levy a tax sufficient to satisfy a upon property newly annexed to the valid public debt. United States village. State v. Craig, 21 C. C. 13. v. Kent, 12 O. F. D. 422; and it is General and special statutes. no defense to an action to compel See Findlay Gas Light Co. v. Find- the municipality to pay the inter- lay, 2 C. C. 237; Dunham v. Opes, est on bonds issued by it, that it 3 C. C. 274, relating to power of needs all the money it is allowed to council under the former general raise by statute, to pay its general statutes relating to taxation, where current expenses. Ib. there were special statutes covering For natural gas works.—Supply- the case for which the power to ing the city with natural gas is a tax was exercised. public use for which the taxing Distinction between tax and power may be exercised. State ex local assessment.—See Hill v. rel. v. Toledo, 48 O. S. 112. Higdon, 5 O. S. 243; Reeves v. Uniformity.—Anneced territory. Treas. Wood Co., 8 O. S. 333; Ses- —A tax to pay bonds of a village sions v. Crunkilton, 20 O. S. 349; annexed to a city levied on the an- Ridenour v. Saffin, 1 H. 464, nexed territory alone, is not void Distinction between tax and for want of uniformity. Cleveland license fee, see Mays v. Cincinnati, v. Heisley, 41 O. S. 670. 1 O. S. 268; Baker v, Cincinnati, 11 An incorporated village is the 0. S. 534; Marmet v. State, 45 O. S. proper party on whose relation an 63; Cincinnati v. Bryson, 15 O. 625. action for a writ of mandamus may Sec. 3785. [Maximum of municipal taxes allowable.]! The aggregate of all taxes levied by a municipal corporation, ex- clusive of the levy for county and state purposes, for schools and schoolhouse purposes, for free public libraries aud library buildings, for university and observatory purposes, for hos- pitals, and for sinking fund and interest, on each dollar of valuation of taxable property in the corporation on the tax list, shall not exceed in any one year ten mills.” GL. 33. § 33. ] (1) Old sections.—See old municipality are now made by §§ 2682, 2683, 2689, 2689a, 2689a §§ 5649-1, G. C., et seq. These (2), 26896, (2689-1) R. S. all re- provisions will be found under the pealed, title ‘‘Taxation’’ in Part II. A statement of these limitations (2) Limitations.—In addition to and interpretation of the sections the limitation in the above section, providing for them, are found in the certain specific limitations upon the opinion of the Supreme Court in amount of taxes that may be levied State ex rel, v. Sanzenbacher, 84 O. on the taxable property in any S. 506. In this case the Court, con- § 3785 struing §§ 5649-2, 5649-3 and 5649-3a, held ag follows: “J. The taxing authorities of any taxing district may levy taxes not exceeding the aggregate of ten mills on each dollar of the tax valuation of the property of such taxing dis- trict for state, county, township, school and municipal purposes, sub- ject to the further limitation of the paragraphs following. “2. In addition thereto levies may be made for sinking fund and inter- est purposes necessary to provide for any indebtedness incurred before the passage of said act, and any in- debtedness that may be incurred after the passage of said act by a vote of the people. “3. In case such levy for the year 1911 shall produce an amount greater than the amount of taxes levied in the year 1910, then such levy of ten mills on the dollar must be reduced to such a rate as will produce no more money than the taxes levied for the year 1910. “4, A municipal corporation may levy for municipal purposes as pro- vided in preceding paragraphs 1, 2 and 3, an aggregate of five mills on the taxable property within such corporation only in the event that such levy of five mills, when added to the levy of state, county, town- ship and school purposes, shall not exceed in the aggregate ten mills on the dollar, of the taxable property within such taxing district exclusive of levies for sinking fund and inter- est purposes necessary to provide for any indebtedness incurred before the passage of said act and any indebt- edness that may be incurred after the passage of said act by a vote of the people, and provided further, that such levy of ten milly on the THE OHIO MUNICIPAL CODE. 288 dollar of taxable property shall not produce for the year 1911 an amount greater than the amount of taxes levied in the year 1910, and when- ever such levy exceeds either of said Jimitations, then it is the duty of the budget commission to revise and reduce said levies in manner and form as directed and authorized by section 5649-3c, General Code, as enacted June 2, 1911, having due regard to the proportions of the total amount, that each taxing board or taxing officers are authorized to levy, so that such aggregate of all taxes for all purposes in each taxing district shall not ex- ceed ten mills on the dollar exclusive of sinking fund and interest pur- poses as aforesaid, and shall not produce for the year 1911 a greater amount of taxes than levied in the year 1910, as provided in paragraph three of this entry. But whenever any levy for township, county, school or municipal purposes exceeds the maximum amount that may be levied for such purpose as provided by section 5649-3a, General Code, then such excessive levy must first be reduced by the budget commis- sion to the maximum amount pro- vided in such section before said budget commission proceeds to re- vise and reduce all the levies certi- fied for such taxing district to bring . the aggregate of all within the lim- itations above referred to, to-wit: ten mills on each dollar of taxable property and to an amount not greater than the taxes levied in the year 1910, “5. The right to levy five mills on the taxable property within such corporation is further limited by the provision that if said levy of ten mills for the year 1911 will produce 289 more taxes than were levied in the year 1910, then such levy should again be sealed by the budget com- mission until the same will produce no larger revenue than the taxes levied in the year 1910. “6, The five mills, which, subject to the qualifications hereinbefore defined, may be levied by a munici- pal corporation for corporation pur- poses, are exclusive of such levies for interest and sinking fund pur- poses as are or may be necessary to provide for any municipal indebted- ness incurred prior to the passage of the act of June 2, 1911, and any in- debtedness thereafter incurred by a vote of the people.” See further, notes under § 5649-1 et seq., title ‘‘Taxation,’’ Part II. Taxes included in limitations of § 3785.—By the provisions of former § 2684 R. 8S. the limitation as to the amount of taxes did not include special assessments. In § 3785 special assessments are not expressly included, though, on gen- eral principles, assessments not be- ing strictly taxes would not be in- cluded in the amount of taxes al- lowed. See Hunter v. Austin, 9 C. C. 583. Taxes levied to pay bonds issued for the corporation’s part of a street improvement are now Specially excepted by § 3821. As to the rule under former. statutes, Sec. 3786. TAXATION—LEVY OF TAXKS. § 3786 see State ex rel. v. Strader, 25 O. S. 527. For other cases as to taxes in- cluded in former limitations, see State v. Humphrey, 25 O. 8S. 520. (Taxes levied by the City of Cin- cinnati to pay interest on Southern Railway bonds); Cleveland v. Heis- ley, 41 O. S. 670; Toledo v. Toledo, etc., 21 B. 131, (taxes levied for improvements) . Under former provisions it was held that where statutes authorized a tax for a special purpose, this may be in addition to the limit fixed by the general statutes. Hunter v. Austin, 9 C€. C. 588; Walsh v. Sisler, 20 C. C, 264. Effect of levy in excess of limitation.—Under former statutes it was held that an ordinance levy- ing a tax in excess of the statutory limit or after the limit had been ex- ceeded, was wholly void, Cummins v. Fitch, 40 O. S. 56; but an ordinance levying an additional tax after the limit had been reached, though void, did not affect an ordinance for tax before limit reached. Jb.; but an ordinance levying an amount in ex- cess of the limit was held not good up to the statutory limit, but void both as to the amount beyond the limit and as to the amount within the limit. Cleveland v. Heisley, 41 O. S. 670. [When greater tax may be levied; submission of question to vote.]' A greater tax than that authorized here- in may .be levied by the council of a municipal corporation for any purpose for which such corporation is authorized to levy taxes, if the proposition to make such additional levy is first submitted to a vote of the electors of the corporation, under an ordinance prescribing the time, place and manner of voting thereon, and approved by two-thirds of those voting on the proposition.? [96 v. 38, § 34.] § 3787 (1) Old section, 2687 R. S. re- pealed. (2) Additional levy after vote. —The provisions of the above sec- tion are now modified by the provis- THE OHIO MUNICIPAL CODE. 290 ions of $§ 5649-5, 5649-5a, and 5649-56 providing for additional tax after majority vote of the electors, see these sections under title “Taxa- tion,’’ in Part IL. Sec. 3787, [Heads of departments to report estimates. ]? On or before the first Monday in March of each year the sev- eral officers, boards and departments in each municipal cor- poration, shall report an estimate, in itemized form, to the mayor and auditor, or clerk, of the corporation, stating the amount of money needed for their wants for the incoming year and for each month thereof.? [96 v. 33, § 35.] (1) Old sections.—See old The provisions of old § 2690a to § 26907 R. S., repealed. 2690q, R. S. requiring estimates, (2) Provision mandatory.— _ were held mandatory, so far as any Provisions such as these requiring estimates by officers and boards be- fore appropriations are made, are mandatory and expenditure of the city funds without such previous es- municipal expenditure is concerned, in Stem v. Cincinnati, 6 N. P. 15. But whether failure to observe them would affect the validity of a tax levy, query in Stem v. Cincinnati, timate may be enjoined. Ampt v. 6N. P. 15. Cincinnati, 5 N. P. 98. ORDER OF PROCEDURE IN MUNICIPAL APPROPRIATIONS, TAX LEVIES AND The fiscal year in each municipality begins January first and ends December thirty-first. (Sec. 3796). The various steps to be taken by municipal officers can be clearly understood only by bearing this fact in mind. The order of procedure in municipal tax levies and appropriations is as follows: THE TAX LEVY. 1. Estimates for succeeding fiscal year, to be furnished to the mayor and auditor or clerk by the heads of the various departments, on or before the first Monday in March, stating the amount of money needed for their respective wants for the next fiscal year, beginning January first, and for each month thereof. (§ 3787). [Nore.—The language used in the section is “the incoming year,” but since these estimates are the basis for the budget and tax levy designed to furnish money for the next fiscal year, the “incoming year” referred to in the section must be the next fiscal year. Section 3790 requiring estimates for the ensuing fiscal year, to be furn- ished to the mayor and auditor or clerk by the heads of the various depart- ments on or before the last Monday in March, stating the amount of money 291 TAXATION—ESTIMATES AND REPORTS. § 3787 needed for their respective wants for each month, was inserted to accom- plish the same purpose, apparently as § 3787.] 2. Auditor’s or Clerk’s Statement, furnished the mayor and council and each member thereof, on or before the first Monday in April, showing (1) balances at end of last fiscal year, (2) monthly expenditures out of each fund and out of all funds for the preceding fiscal year, (3) annual expenditures from each fund for each of the last five fiscal years, and (4) monthly average of expenditures from each fund for the preceding fiscal year and total monthly average from all funds for the five preceding fiscal years. (§ 3788.) 3. The Annual Budget, submitted to council by the mayor on the first day of April based upon the annual estimates furnished him by the departments. The items of any of these the mayor may revise and change, but he may not increase the total of any such estimate. The budget should show the needs of the several municipal departments for the succeeding fiscal year, and may conveniently be in the form of a message from the mayor, submitting to council a proposed resolution for the annual budget. (§ 3791.) 4. Budget resolution passed by council after examining and revising the _ budget submitted by the mayor. It should set forth in itemized form an estimate stating the amount of money needed for the wants of the munici- pality for the ensuing fiscal year and for each month thereof and contain the further information required by § 5649-3a. [NotE.—By the provisions of § 3793, which relate to a tax levy ordinance to be passed by council, it is required that the levies made by the ordinance shall be submitted to the board of tax commissioners. By the provisions of § 5649-3a, council merely submits a budget to the county auditor for consideration and final action by the budget commissioners.] 5. Submission to mayor of budget resolution for approval. If the mayor disapproves the resolution it may be passed over his veto by two-thirds vote of council. (§ 4234.) 6. Publication of resolution in the manner required by §§ 4228, 4229. 7. Submission of annual budget to county auditor by council, on or be- fore the first Monday of June, which annual budget is to be submitted by the county auditor to the budget commissioners. (§ 5649-3a. ) THE SEMI-ANNUAL APPROPRIATIONS. 1. Appropriating Ordinance for first six months of fiscal year must be passed at the beginning of the year, making detailed appropriations of the moneys in the treasury for each of the several objects for which the munici- pality has to provide, and dividing the same among all the various funds for said six months. Council may also in this ordinance set apart such sum as it may deem proper as a “contingent fund” to provide for deficien- cies in any of the regular funds which may, by any unforeseen emergency, occur during the six months. The ordinance should be published, as one of a general nature. (§§ 3797, 4224, 4227, 4228, 4229, 5649-3d.) 2. Appropriating ordinance for second sia months of fiscal year must be § 3788 THE OHIO MUNICIPAL CODE. ° 292 passed at the beginning of the second half of said year, and the same | formalities observed as above. Sec. 3788. [Statements to be furnished by city auditor and village clerk.]' On or before the first Monday in April of each year the auditor of such city and clerk of such village shall furnish to the mayor and council and to each member thereof, the following statements, which council may require to be printed: 1. A statement showing the balance standing to the credit or debit of the several funds on the balance sheet of the cor- poration, at the end of the last fiscal year. 2. A statement showing the monthly expenditures from each fund in the twelve months, and the monthly expenditures from all the funds in the twelve months of the last fiscal year. 3. A statement showing the annual expenditures from each fund for each year of the last five fiscal years. 4. A statement showing the monthly average of such ex- penditures from each of the several funds for the last fiscal year, and also the total monthly average from all of them for the last five fiscal years.2 [96 v. 33, § 36.] (1) Old section.—See § 2690f, (2) See notes to § 3787 ante, see R. S., repealed. also § 5649-3a under title “Taxa- tion,” in Part II. Sec. 3789. [Reports to mayor and council.] The directors and officers provided for in this title, upon request, shail forth- with furnish to the mayor or council any information desired in relation to the affairs of their respective offices. [96 v. 34, § 37. ] Sec. 3790. [Heads of departments to report estimates to mayor and auditor.] To enable the mayor to make up his annual budget, each director or board and each officer, pro- vided for in this title, on or before the last Monday in March of each year, shall make and file with the mayor, and also with the auditor, a carefully prepared and itemized estimate of the amount of money needed in such department or office for all purposes for the ensuing fiscal year, such estimate to be given for each month.’ [96 v. 34, § 37.] (1) See notes and order of procedure under § 3787 ante. 993 TAXATION—-ANNUAL BUDGET. § 3791 Sec. 3791. [Annual budget; how made up, etc.]* On the first day of April of each year the mayor shall submit to coun- cil the annual budget? of current expenses of the municipality, any item of which may be reduced or omitted by council, but the council shall not increase the total of such budget. In the making of the annual budget, the mayor may revise and change any and all ‘items in the annual estimates furnished to him by the directors and officers as herein prescribed, but he shall not increase the total of any such estimate when including it in his annual budget to council. On such date, and at such other times as he deems expedient, he shall report to council concerning the affairs of the corporation, and make such rec- ommendations to council as he deems proper for the welfare of the municipality. [96 v. 34, § 38.] (1) Old sections.—See old (2) See notes and order of pro- §§ 26901 R. S. repealed. cedure under § 3787 ante. ‘Sec. 3792. [Board of examiners; appointment, qualifica- tions, duties.] At any time the mayor may appoint competent disinterested persons, not exceeding three in number, not more than two of whom shall be of the same political party, to ex- amine without notice the affairs of any department, director, officer or employe in the city government, for the purpose of ascertaining facts. In connection with such examinations, the mayor or such appointees may compel the attendance and testi- mony of witnesses, administer oaths and-examine such persons as they deem necessary, and compel the production of books and papers. The result of the examination shall be recorded in the office of the mayor and transmitted by him to the eoun- cil without delay. The council shall provide the examiners reasonable compensation for such services. [96 v. 34, § 38.] Sec. 3793. [Duty of council and tax commissioners as to examination.]' The council shall examine and revise each annual budget submitted by the mayor. After it has deter- mined by ordinance the percentage to be levied for the several purposes allowed by law upon the real and personal property in the corporation returned on the grand duplicate the levies Shall be submitted by the council to the board of tax commis- sioners, which board shall examine and return them, as pro- THE OHIO MUNICIPAL CODE. § 3794 294 vided by law, with such suggestions and recommendations as it deems proper.” [96 v. 35, § 39.] (1) Old section.—Compare the provisions of the act of June §§2690g, 2690c, R. S., repealed. 2, 1911, see § 5649-3a under title (2) Provisions of Smith law. ‘‘Taxation,’’ in Part II. . —As to the duties of council under Sec. 3794. [Percentage of tax to be certified to county aud- itor; his duty thereupon]: On or before the first Monday in July, each year, council shall cause to be certified to the auditor of the county, the rate of taxes levied by it on the real and personal property in the corporation returned on the grand duplicate, who shall place it on the tax list of the county in the same manner as township taxes are by law placed thereon. The ordinance prescribing the levy shall specify distinctly each and every purpose for which the levy is made and the per cent thereof, and if he finds that the tax levy so certified to him exceeds the aggregate limit allowed by law, the county auditor shall not place it on the tax list, and the levy for such municipal corporation shall not be valid or collectible afainst any real or personal property in the corporation. If such levy is in excess of the limit allowed by law, the auditor shall im- mediately notify the council making it, and within ten days after the receipt of such notification council shall revise its levy so as to bring it within the law.? [96 v. 35, § 40.] (1) Old section.—See old sec- such amount, to revise and change tion 2691 R. S. repealed. it. (2) Provisions of Smith Law. —By the above § 3794, council is required to certify to the county auditor the rate of taxes levied by council. By the provisions of the act of June 2nd, 1911, which now govern, council is required to sub- mit an annual budget to the county auditor on or before the first Monday in June and this annual budget. is laid before the budget commissioners for examination to determine whether the amount proposed to be raised exceeds the amount author- ized by law and if it does exceed When the budget commissioners complete their work they certify their action to the county auditor who ascertains the rate of taxes necessary to be levied upon the property in the municipality and places it on the tax list. See §§ 5649-3a and 5649-8c in Part II, under title ‘‘Taxation.’’ Provision directory.—The pro- vision of former section requiring certification to the county auditor at or before a time fixed in the statute was held to be directory. Gates v. Beckwith, 2 W. B. M. 539. 295 TAXATION—-ANNUAL BUDGET. § 3794 FORM OF RESOLUTION FOR ANNUAL BUDGET. RESOLUTION. To provide for the annual budget for municipal purposes for the Wear, LON. . Be it resolved by the council of the city [or village] of ............ State of Ohio: Sec. 1. That the following is the annual budget of the city [or village] Ee Hie a oh oa, ss pas setting forth in itemized form the amounts of money needed for the said city [or village] for the various municipal pur- poses for the year 19.... Public. shea leh AUN). 6.0K sot oo claw ss OSCE a SA eae PubHe. SATCCY, LUND .ciani4 ois og sd ors esate amd Fates dort ha oly Rublie;servies: fund 5... .j.0545,68 & abies Be iit aden scic « EROS MGA bad VI eet cays. oo oi 0.3 v1, 04s ore i ONoie sas Hansa 1 syed <6 vs TADEO RY CTU hei ne ate) «she Sie onthe badly Diavalaeaiceh, abtoarnuh'S Ete. Also for interest and sinking fund WUE DOSES Mitra, s cetera tae tis Sa ceca DPiatara Shae ieas a mesons eer cee Kte., Ete. Sec. 2. That the clerk is hereby directed to certify this annual budget to the auditor of the County of................. See. 3. This resolution shall take effect and be in force from and after the earliest period allowed by law. Oso eles 0 0 60a 0, © 6:e: 0 'd. 0 @ 6) 6/016 6 ee a 016 President of Council. Clerk. (§ 5649-3a provides the specific information that the budget shall set forth. The county auditor furnishes to the clerk of council the blanks on which the clerk may certify to the county auditor the annual budget of council. ) FORM OF RESOLUTION DECLARING NECESSITY FOR ADDITIONAL TAX LEVY. (See § 5649-5 under ‘‘Taxation’’, in Part IT.) RESOLUTION. Declaring the amount of taxes that may be raised by the levy at the maximum rate authorized by law without a vote of the electors to be insufficient and declaring the expediency of a levy in excess of such rate. me’ [ei esate (ee 6: oie & « =) 0/6 See. 1. That the amount of taxes that may be raised by the levy of taxes at the maximum rate authorized by § 5649-2 of the General Code on § 3795 THE OHIO MUNICIPAL CODE. 296 the taxable property in said city [or village] will be insufficient for the needs of said city [or village] and that it is expedient and necessary that taxes be levied on the taxable property in said city [or village] for the -period :08) tiingacs) scree ae years, [not exceeding fiwe] at a rate in excess of such maximum rate authorized by said § 5649-2 of the General Code. Sec. 2. That it is expedient and necessary to levy taxes for the years Bia ee [not exceeding five] at the rate for each year of........... mills on each dollar of the tax valuation of the taxable property within the! crtyeOruyilacel wolves cclecte sre cyateser ; in excess of the rate authorized by the said § 5649-2 of the General Code. See. 3. That the clerk be and he is hereby directed to certify a copy of this resolution to the deputy state supervisors and inspectors of elec- tions of...... county, Ohio, in order that the said supervisors and inspectors of elections may make arrangements for submitting the question of said additional levy to the electors of the city [or village] of................ as provided by law. IR ASSOd so bars. sal, ence iee eer ae Attest: President of Council. a ava, wow @ © siie'-6 610 6 8 a ele) Sie wien ey eS mele a Sec. 3795. [Corporation taxes; how collected]’ The taxes of the corporation shall be collected by the county treasurer and paid into the treasury of the corporation in the same manner and under the same laws, rules and regulations as are prescribed for the collection and paying over of state and county taxes. The corporation treasurer shall keep a separate account with each fund for which taxes are assessed, which account shall be at all times open to public inspection. Unless expressly otherwise provided by law, all money eollected or received on behalf of the corporation shall be promptly de- posited in the corporation treasury in the appropriate fund, and the treasurer shall thereupon give notice of such deposit to the auditor or clerk. Unless otherwise provided by law, no money shall be drawn from the treasury except upon the warrant of the auditor or clerk pursuant to the appropriation by council.? [96 v. 35, § 41.] (1) Old sections.—See old is the proper person upon whose §§ 2690, 2692 R. S., repealed. . warrant money is to be drawn from (2) In villages there are’ no the treasury. See §§ 4283, 4285. auditors, but the clerk of the village Collection where no mode pro- 297 vided.—If no special mode of col- lecting a tax is provided, where power is given to collect, council would have authority to prescribe the mode by ordinance. Cincinnati v. Gwynne, 10 O. 192; Cincinnati v. Bank, 14 O. 605. Payments without appropriation. —In the absence of any allega- tion of fraud or collusion, a pre- sumption arises that payments made by a municipality for ser- vices were regular and duly au- ‘-TAXATION—APPROPRIATIONS. § 3796 thorized, and where the payments were such as the city should have made and the persons receiving them were fairly entitled to what they received, an action can not be maintained by the city for re- covery back of the amounts so paid, on the bare allegation that no ordinance ‘‘appears’’ to have authorized such payments. Nor- walk v. Christian, 25 C. C. (N. S.) 419. APPROPRIATION AND EXPENDITURE. Sec. 3796. [Fiscal year.]' In municipal corporations the fiscal year of each office, board and department shall terminate on the thirty-first day of December, in each year, and all ac- counts shall be closed on that day, and all annual reports re- quired by law shall be made for the year terminating on that day. [96 v. 36, § 42.] (1) Old section.—Compare old § 1545 R. S., repealed. Sec. 3797. [Council to make appropriations at beginning of each fiscal half year.]' At the beginning of each fiscal half year, the council shall make appropriations? for each of the several objects for which the corporation has to provide,?® or from the moneys known to be in the treasury, or estimated to come into it during the six months next ensuing from the collection of taxes and all other sources of revenue.* All ex- penditures within the following six months shall be made from and within such appropriations and balances thereof.’ [96 v. 386, § 43.] (1) Old section.—Compare old § 2690h R. S., repealed. Other provisions. — See § 5649-3d, in Part ILI. (2) Detailed and specific ap- that the expenditures must be classi- fied and appropriation in a lump sum would not be compliance with the statute. Ampt v. Cincinnati, 5 N. P. 98. propriations.—lormer statutes for certain cities required the appropri- ations to be “detailed and specific.” Under such provisions it was held Former section 1693 R. S, also re- quired that every ordinance appro- priating money should contain an explicit statement of the uses and § 3798 purposes for which the appropria- tion was made. (See Stem v. Cin- cinnati, 6 N. P. 15, 19; Knauss v. Columbus, 13 Dec. 200). The present section omits the words “detailed and specific,” and section 4224, which supersedes § 1693 R. S., also omits the re- quirement of an explicit statement in appropriating ordinances, but that such ordinances should specifically state the several purposes for which money is appropriated is shown by the requirement as to contingent fund ordinances in § 3800, that they are to supply deficiencies in any of the ‘‘detailed appropriations.’’ (3) Purposes of appropria- tion.—Entertainment of public guests is not a legal object for the appropriation by a city of its funds raised by taxation. Stem v. Cincin- nati, 6 N. P. 15; Moore v. Hoffman, 20,8. C. R. 453, | Limitations.—See § 5649-3d of the Smith law (under title ‘‘Tax- ation,’’ in Part II), requiring that “no appropriation shall be made for any purpose not set forth in the Sec. 3798. THE OHIO MUNICIPAL CODE. 298 annual budget nor for a greater amount for such purpose than the total amount fixed by the budget commissioners, exclusive of receipts and balances.” When section 5649-3d G. C., is not applicable to section 3797 G. C. See Op. Atty. Gen. 1919, p-. 885. (4) Moneys from which ap- propriations made.—See § 5649-3d of the Smith law (under title “Tax- ation,” in Part II), requiring that such appropriations shall be made “from the moneys known to be in the treasury from the collection of taxes and all other sources of revenue.” The section of the Smith law omits the words “or estimated to come into it during the six months next ensuing.” Monies received from automobile license tax must be regularly ap- propriated before expenditure. Op. Atty. Gen. (1920), p. 1129. (5) Similar provision is found in § 5649-3d of the Smith law. See under title “Taxation,” in Part IT. [Unexpended appropriations or balances shall revert to fund from which taken.] Unexpended appropria- tions or balances of appropriations remaining over at the end of the year and balances remaining over at any time after a fixed charge shall have been terminated, by reason of the object of the appropriation having been satisfied or aban- doned, shall revert to the funds from which they were taken and shall then be subject to such other authorized uses as council determines.’ [96 v. 36, § 43.] this section under title “Taxation,” m Part: ol. (1) Similar provision is found in § 5649-3e of the Smith law. See Sec, 3799. [Transfer of funds.]' By the votes of three- fourths of all the members elected thereto, and the approval TAXATION—-APPROPRIATIONS. 299 § 3800 of the mayor,” the council may at any time transfer all or a portion of one fund or a balance remaining therein, except the proceeds of a special levy, bond issue or loan, to the eredit of one or more funds, but there shall be no such transfer except among funds raised by taxation upon all the real and personal property in the corporation, nor until the object of the fund from which the transfer is to be effected has been accomplished or abandoned. [103 v. 522, 96 v. 36, § 43.] statutes. ie alas (1) Validity—This section held Stem yv, Cincinnati, 6 N. constitutional. Cincinnati v. Roet- tinger, 105 O. S. 145. (2) Passing over mayor’s veto. —Under former statute 2690h R. S. an appropriation from the contin- gent fund, not approved by the mayor, could be passed over his veto; but under the present section the mayor’s approval would be es- sential, and passing an appropria- tion over his veto would not be an equivalent. See State v. Brown, SC .62.108. Transfer of funds.—Transfer from one department to another department of the same fund was held to be forbidden under former Sec. 3800. Surplus appropriation — how transferred. Op. Atty. Gen. (1912), pp. 1573 and 1626. Surplus revenues derived from a municipal electric light plant or gas works, should be trans- ferred to the sinking fund of Cityae Op. Atty. .Gen.— giles), p. 352. Under’ special charters.—This section applies to citics and villages under special charters and operates to prevent the transfer of revenues from the water works fund to the general fund. Cincinnati v. Roet- tinger, 105 O. S. 145. [Contingent fund.] In making the semi-annual appropriations and apportionments herein required, council may deduct and set apart from any moneys, not otherwise ap- propriated, such sum as it deems proper as a contingent fund to provide for any deficiency in any of the detailed appropria- tions, which may lawfully and by any unforeseen emergency happen. Such contingent fund or any part thereof may be expended for any such emergency only by ordinance passed by two-thirds of all the members elected to council, and ap- proved by the mayor. Any balance remaining in such con- tingent fund at the end of the fiscal year shall thereupon be- come a part of the general fund, to be again appropriated as other moneys belonging to the corporation. This section shall not interfere with the provisions of law authorizing the trans- fer of funds by the court of common pleas. [96 v. 36, § 43.] § 3801 (1) Unforeseen emergency.— A contemplated improvement defer- red for want of funds is not an un- foreseen emergency within a pro- vision such as this. Ampt v. Cin- cinnati, 1 N. P. 379. To make a case within the mean- ing of a provision such as this, something unforeseen shall happen affecting the object for which the specific appropriation is made and which, by requiring an unexpected expenditure of money appropriated to that particular object, has caused THE OHIO MUNICIPAL’ CODE. 300 tion of council in the ordinance that an emergency did exist is final, see Ampt v. Cincinnati, 1 N. P. 379, 382, Increase in legitimate municipal expenditures required by reason of a Grand Army encampment, which event was not decided upon until after the estimates for the year were made up, was held to be payable out _ of the contingent fund. Stem v. Cincinnati, 6 N. P. 15. (2) See §§ 2296 to 2302 in Part II, under ‘‘Taxation,’’ providing or will cause a deficiency in the ap- for resolution and petition to propriation. Ampt v. Cincinnati, 1 Common Pleas Court asking for N. P. 379. Whether the determina- allowance of transfer of funds. Sec. 3801. [Disposition of cash balances in a fund when purpose for which created is invalid.] Repealed, 103 v. 521. Sec. 3802. [Disposition of cash balances not legally avail- able.] Repealed, 103 v. 521. Sec. 3803. [Effect of transfer.] Repealed, 103 v. 521. Sec. 3804. [Disposition of unexpended balances created by bond issue.] When any unexpended balance remaining in a fund created by an issue of bonds, the whole or part of which bonds are still outstanding, unpaid and unprovided for, is no longer needed for the purpose for which such fund was created, it shall be transferred to the trustees of the sinking fund to be applied in the payment of bonds. [97 v. 520, § 48a. ] Sec, 3805. [Monthly statement of balances.]+ The auditor or clerk, and the treasurer in all municipal corporations shall make up monthly, a statement of the balances in all funds and accounts in their offices, as they exist at the close of busi- ness on the last day in the month, and such officers shall forth- with compare such statements, correct any error, and at once forward a copy thereof to the mayor, who shall keep them for public inspection. [96 v. 37, § 44.] (1) Old section.—Compare old § 1765a R. S., repealed, ee ee ee ee eee TAXATION—RESTRICTIONS AS TO CONTRACTS. 301 § 3806 Sec. 3806. [Certificate of auditor or clerk.]* No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolu- tion or order for the expenditure of money, be passed by the council or by any board or officer of a municipal corporation, unless the auditor or clerk thereof, first certifies to council or to the proper board, as the case may be, that the money required for such contract, agreement or other obligation, or to pay such appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose,? which certificate shall be filed and immediately recorded. The sum so certified shall not thereafter be considered unappropriated until the cor- poration is discharged from the contract, agreement or obli- gation, or so long as the ordinance, resolution or order is in force. (1) Old sections.—These re- strictions substantially incorporate old sections 2699 and 2702 R. S., repealed; the former applying to Cincinnati only, and known as the “Worthington Law,” the latter ap- plying, with certain exceptions, to all municipalities and known as the “Burns Law.” General exceptions to the require- ment that money for a municipal contract be in the treasury were formerly contained in old §§ 2264 R. S.; 2273 R. S.; 2275 R. S. and 3471-4 and 3471-4a, R. S., repealed. Other restrictions.—Contracts not to be made without previous appropriation of funds, see § 17 and notes in Part II. (2) Must be funds at time of ordinance.—The money must be in the treasury and so certified at the time the ordinance is passed, be- fore the ordinance can take effect. That the money has since come into the treasury and has been set [101 v. 262; 96 v. 37, § 45.] apart is not sufficient. State v. Hoffman, 25 O. S. 328. The fact that funds are actually in the treasury, does not dispense with certificate. State v. Bair, 50 B. 11;, Findlay v. Pendleton, 62 O. S. 80. As to money to be derived from bonds in process of delivery, see § 3810, post. As to the exact time when the certificate is required in case of several steps in a proceeding end- ing in the expenditure of money, see Braman y, Elyria, 26 C. C. 731; 5 C. C. (N. 8S.) 387 (aff'd, 73 O. S. 346); Pullen v. Smith, 26 C. C. 549 5) CCS Na Soe 1s Ryan v. Hoffman, 26 O. §. 109; Tyler v, Co- lumbus, 6 C. C. 224. Certificate need not be executed until just prior to awarding con- tract. Op. Atty. Gen. (1918), p. 1528. Object of statute.—The statute embodies “that principle of sound public policy which seeks to enforce § 3806 economy in the administration of public affairs. The judicial tribu- nals of the state should administer these laws so as to advance the pur- pose thus sought to be accomplished. Contracts made in violation of these statutes should be held to impose no corporate liability. Persons who deal with municipal bodies for their own profit should be required at their peril to take notice of the limitations upon the powers of these bodies which the statutes impose. The corporation should not be estop- ped by the acts of its officers to set up these statutes in defense to con- tracts made in disregard of them.” Lancaster v. Miller, 58 O. S. 558. To what expenditures appli- cable.—Generally—tThese __ restric- tions were held, under former stat- utes, not to apply to contracts pay- able out of a fund not raised by taxation. Kerr v. Bellefontaine, 59 O, 8. 446, 464; Comstock v. Nelson- ville, 61 O. S. 288, 294; State ex rel. v. Gibson, 1 N. P. (N. 8.) 565 (aff’d, 49 B. 87). Thus the former sections were held not to apply to purchases by gas trustees for the erection of gas works, for they were not pay- able out of a fund raised by taxa- tion. Kerr v. Bellefontaine, 59 O. S. 446, 464. The power of the various boards of a city to make contracts is lim- ited by such a provision. Newton v. Toledo, 18 C. C. 756. The fact that the certificate is to be filed with council does not imply an in- tent to limit the requirement to expenses incurred by council. Pitt- inger v. Wellsville, 75 O. S. 508. And contract for school building held void for failure to have certi- ficate. McAlexander y. School Dis- THE OHIO MUNICIPAL CODE. 302 trict, 19 Dee. 89; 7 No“P.-(N=S.) 590; 52 B. 211. Action will not lie for mate- rial furnished and used without issuance of certificate. Pleasant Kiidge v. Limestone Co., 17 ©. ©. (N. 8.) 498; 1 Ohio App. 245. Resolution of council accepting a gift of a public library and agreeing to maintain the same at an expense of one thousand dol- lars per year, is not within the - inhibition of this section. Smith v, Evans, 74 O. S. 17. But see Pullen v. Smith, 26 C. C. 549; BC. CO. NaSan a ee Application of this section to contract for purchase of water mains. See Op. Atty. Gen. (1922) p. 890. Employment contracts.—Em- ployment of a street superintendent at a weekly salary is not authorized unless at the time of employment money to pay for such employment was in the treasury and so certified. State ex rel. v. Hoffman, 25 O. S. 328. So, employment of a superintend- ent over the construction of a town hall. Drott v. Riverside, 4 C, C. 312. So, employment by board of pub- lie service, of janitor for city hall, is unauthorized, without the certifi- cate. Pittinger v. Wellsville, 75 O. S. 508. Employment of an attorney for Sunday law prosecutions, without certificate of money in treasury, was held void. That the amount of payment in such ease could not be ascertained in advance was held to make no exception, for a maxi- mum could have been fixed; nor was it material that the services were to preserve order and enforce an 303 ordinance. Bond v. Madisonville, 2 C, C, 449. Employment of attorney by a board, without certificate of auditor that money is in treasury to pay for services, is void, though the board was empowered to sue and be sued. Though the money was in treasury and a financial statement was made to council at each meeting, the cer- tificate could not be dispensed with, Findlay v. Pendleton, 62 O. S. 80. See also Caldwell v. Marvin, 8 N. P. (N. 8S.) 387. Expenses incurred in employing a village solicitor were held to be within the restriction of such a provision, where there was no pro- viso excepting such employment. Easton v. Hyde Park, 6 N. P. 257. Under the present Code, however, the employment of counsel by vil- lages is specially excepted from the restrictions, Condemnations.—Ordinances to appropriate property for public pur- poses, as for a public park, are valid without the certificate otf money in the treasury to pay for the appropriation. This is put on the ground that the ordinance to appropriate is not one to expend money, the amount is not ascertain- able and bonds are issued to pay the award. Put-in-Bay v. Webb, 18 C. C. 780; Pansing v. Miamisburg, 31 fac. 190; 41 C.-C. (N.8.) 61) (aff’d, 79 O. S. 430). But see Ryan v. Hoffman, 26 O. S. 109, 123; Hurst v. Belle Valley, 30 C. C. 563; 11 C..C. (N. 8.) 235. So condemnation of property for opening a street is not within such provisions. Klopfer vy. Sunderland, 1 Dayton 143; see also Tyler v. Columbus, 6 ©. C. 224; but see Rhoades y. Toledo, 6 C. C. 9, contra, TAXATION—-RESTRICTIONS AS TO CONTRACTS. § 3806 Contracts for street improve- ments.—The restriction requiring certificate of auditor of money in the treasury does not apply to con- tracts for street improvements when bonds have been authorized by the municipality to be issued to pay the entire estimated cost and expense of the improvement. Emmert v. Hlyria, 74 O. S. 185; Kohler Brick Co. v. Toledo, 29 C. C. 599; 10 C. C. (N. 8.) 187; Lloyd v. Toledo, 20 CoO. SCN Se nae. Nor is the certificate required for so much of the cost as is to be paid for by assessments on abutting property. Comstock v. Nelsonville, 61 O. S. 288. And this is true even though some of the assessments may prove uncollectible by reason of de- ficient value of lots or otherwise. Ib. For construction of provisions of former statutes, see Wood v. Pleas- ant Ridge, 12 C. C. 177, 182; Irwin v. Greenvile, 1 Dayton 140; Chitten- den v. Columbus, 14 Dec, 333; 1 N. P. (N. 8S.) 420; Cincinnati vy. McErlane, 3 B, 843; Kirchner v. Cin- cinnati, 14 B. 48; Ryan v. Cincin- nati, 2 B. 251; Mills v. Norwood, 26 B. 348; McGrew v. Elmwood Place, 17 C. C. 676; Comstock v, Nelson- ville, 61 O. S. 288. ‘See also Trow- bridge v. Hudson, 24 C. C. 76; 3 ©. C. (N. 8.) 644 (as to contracts re- lating to sidewalk improvements un- der former statutes). Meaning of the provision except- ing “street improvement contracts extending for one year or more,” in § 3809, see Emmert yv. Elyria, 74 O. S. 185, 196, Running expenses.—Purpose of statute.—The policy of such a stat- ute respecting municipalities is that no debt shall be incurred for the § 3806 ordinary expenses of the corporation unless an appropriation to meet it has been made by council and the auditor or clerk has certified to council that the money is in the treasury. Pittinger v. Wellsville, 75 O. 8S. 508. Compare §§ 3787, 3790, 3791, 3793, 3798, and 17. Under former statutes on same subject, the restrictions were held to apply to all contracts, includ- ing the running expenses of the mu- nicipality, and were not limited to improvement contracts. Ampt v. Cincinnati, 2 N. P., 332, 339; Cope v. Wellsville, 25 B., 250; Easton v. Hyde Park, 6 N,. P., 257; State v. Philbrick, 18 Dee. 158. But see, contra, Lima Gas Light Co. v. Lima, 4 C. C, 22, 28. Appropriation of money raised by bonds.—The restrictions are _ not applicable to an ordinance ap- propriating money obtained by coun- ¢il from a sale of bonds made by it to the purpose for which the bonds are sold. Thus the certificate of money in the treasury is not neces- sary in the case of a contract for hose and chemical wagons and paid for out of the money realized from the bond issue for the purpose of purchasing real estate and equip- ping a building, ete., for a fire de- partment. Akron v. Dobson, 81 O. S. 66; Cincinnati v. Waite, 12 N. P. (N. 8.) 633. Burns law has no application to a year’s rental appropriated out of the proceeds of a lawful issue of bonds, nor can said law be construed as applying to rental for subsequent years under the same lease. Columbus v. Spiel- man, et al. 19 N. P. (N. 8.) 257, But see Carthage v. Dickmeier, 79 O. S. 323, 342, where such cer- THE OHIO MUNICIPAL CODE. 304 tificate was held necessary where several improvements are to be paid out of a single bond issue. This decision can hardly be recon- ciled, on principle, with Emmert v. Elyria, 74 O. S. 185, and Akron v. Dobson, 81 O. S. 66, and it would seem safer, in every case, to have the certificate. See also Knowlton v. Board of Ed., 31 O. C. A., where the above cases are distinguished. Exceptions implied by other statutes.—Implied exceptions to the restrictions of such a section as this may be caused by the pro- visions of other statutes. Thus the provision requiring an armory to be furnished by a city (R. S. § 3085) was held to make the city liable for rent, though no certificate of money in the treasury had been made. Wilson v. Cincinnati, 19 B. 10; see also State ex rel. v. Massil- lon, 24 C,'C. 249; 2 ©. C. (N. S.) 167. And the restrictions were held not applicable to a contract for a trunk sewer under a former trunk sewer act (84 O. L. 75), for other- wise the law could not be carried out, since the act required con- tracting at once and collection of fund by subsequent levy. Cincin- nati v, Honnigfort, 32 B. 32. And see Cincinnati v. Holmes, 56 O. S. 104. They were held not applicable in their entirety to a city’s water- works; for otherwise an accident to the machinery might leave the city helpless for months. Cincin- nati ex rel. v. Cincinnati, 11 C. C. 309, 317. Where gas trustees were given power to construct and control gas plants, things necessary to accom- 305 plish the purpose of carrying out the power, employing service neces- sary, preserving the property from destruction and impairment to a degree not amounting to rebuilding or extension, are incidental and go with the power expressly given to construct and control. Current ex- penses incurred in thus operating and controlling the property do not require certificates that money is in the treasury, for otherwise it would be almost impossible to oper- ate the institution as required by the special statute giving the power. Findlay v. Parker, 17 C. C. 294, 300 (aff’d, 63 O. 8. 565); nor where the funds to be used in paying for such services are not to be derived from taxation, but from the revenue arising from water rents. Alcorn v. Price, 13 N. P. (N. 8.) 558. This section does not apply to a contract whereby, in consideration of conveyance of land for park purposes, the municipality agreed to improve same as rapidly as possible. Cleveland v. Herron, 102 O. 8. 218. An ordinance, subsequently passed authorizing payment for such services of the sum required in excess of $500, is a mere granting of authority to pay a valid obligation and is itself valid. Ib. Contract in excess of $500.00 without certificate of auditor, void—money voluntarily paid by city can not be recovered, how- ever, in absence of fraud. Op. Atty. Gen. (1912), p. 1900. The act (90 O. L. 34) authoriz- ing certain cities to make dredg- ing contracts was held to make an exception to the restrictions of old TAXATION—RESTRICTIONS AS TO CONTRACTS. § 3806 § 2702 R. S. Sprankle v. Cleveland, 12 C. D. 644. EHapress provisions in other stat- utes, excepting contracts made un- der them, from the restrictions of a statute such as § 3806, must be read as an exception to this sec- tion. Mt. Vernon vy. State, 71 O. S. 428. Haceptions implied from necessi- ty, where public health endangered, see Columbus v. Bohl, 1 N, P. (N. S.) 469; 13 Dec. 569. Contracts running beyond year.—Street improvement con- tracts extending for one year or more are made special exceptions by § 3809. A contract by which a city agrees to pay a water company hydrant rentals: for water for fire purposes for thirty years would not be void on the ground that there was not a certificate of money in the treasury sufficient to satisfy the amount fall- ing due for the full period of thirty years. Defiance v. Council, 23 C. C. 96 (reversed on other grounds, 68 O. S. 520). See also Defiance Wa- ter Co. v. Defiance, 12 O. F, D. 299 (reversed on other grounds, 14 O. BD 427) As to contracts running over a year, under the former sections on this subject relating to Columbus (§§ 1545-150, 2699-1 R. S. repealed), see Fergus v. Columbus, 6 N. P, 82. Character of certificate.— Where there are several contracts of the same species entered into at the same time, to be paid from a gross sum theretofore provided, it is not sufficient for the certificate to recite that there is money in the treasury “sufficient” for the particular con- tract for which the certificate was made, but it should specify the § 3807 amount “in the treasury to the cred- it of the fund from which it is to be drawn, and not appropriated for any other purpose.” Carthage v. Diek- meier, 79 O. S, 323. “Where the certificate is amended by the auditor or clerk with the con- sent of council, before the contract is executed, by inserting the amount that is in the treasury, the certifi- cate so amended and filed, is a limi- tation on the amount to be paid on THE OHIO MUNICIPAL CODE. 306 the contract, beyond which the municipality is not liable.” Ib. An appropriation for ‘‘pay roll of laborers’’ may not be ex- pended for rental of street roller —duty of auditor. Op. Atty. Gen. (1915), p. 1288. Mandamus will lie to compel auditor to give certificate of funds on hand, when refusal is without sufficient grounds. State ex rel. v. Noble, 9 N. P. (N. S.) 609; 20 Dee. 308. Sec. 3807. [Proceedings in violation shall be void.] All contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed, contrary to the provisions of the preceding section shall be void, and no person whatever shall have any claim or demand against the corpora- tion thereunder, nor shall the council, or a board, officer, or commissioner of any municipal corporation, waive or qualify the limits fixed by such ordinance, resolution or order, or fasten upon the corporation any liability whatever for any excess of such limits, or release any party from an exact compliance with his contract under such ordinance, resolution or order.* [96 v. 37, § 45.] (1) Effect of ordinance or contract made without certifi- cate.—A contract without the cer- tificate required imposes no liability on the municipality to pay. It is not estopped to set up the defense of the want of a certificate. Lancaster v. Miller, 58 0. S, 588. ' The municipality is not liable though the contractor has fully per- formed his contract. He must as- certain at his peril whether the cer: tificate has been. filed and recorded or not. Comstock vy. Nelsonville, 61 O. S. 288. So, municipality is not liable for services of superintendent of city hall, employed without certificate, though services were valuable. Drott v. Riverside, 4 C. C. 312. Where work already performed and kept and used by the public authorities, held no right to re- cover back money paid contractor where no certificate of money in treasury before contract made, see State ex rel. v. Fronizer, 77 O. S. 7; State ex rel. v. Bridge Co. 5 N. P. (N..S.) 30. Right of action in contractor for leave to remove a bridge for which contract had been made, but not according to statute and for which no recovery of contract price or quantum meruit would lie. Lee v. Commissioners, 14 O. F. D. 43. 307 A provision such as contained ir this section is designed only to re. strain municipal extravagance. It does not make work, done without the preliminaries here required, il- legal so as to impose a liability which would not otherwise have been imposed. Elster v. Spring- field, 49 O. S, 82. Thus, where a sewer is construct- ed by the city without money in ' the treasury for that purpose anc the sewer does injury by carrying off percolating waters, which had fed a spring, the city is not liable. Ib. That a executed city’s partly TAXATION—RESTRICTIONS AS TO CONTRACTS. § 3808 contract is void because there had been no certificate of funds in the treasury, is not necessarily grounds for injunction to restrain further execution of it. Ampt v. Cincinnati, o4-B. 101 112. Pleading.—It is not sufficient if the petition avers that the contract was duly made. It is necessary io aver that the certificate of money in the treasury was made. Stone Co. v. Trustees, 18 Dec. 137; 5 N. P. (N._.) 573, (aff’d, 78 O. S. 444); Soeder v. Cleveland, 16 C. C. (N. S.) 260; contra, see Neubauer v. Bd. Education, 6 N. P. 530. Sec. 3808. [Officer shall have no interest in contracts; pen- alty.] No member of the council, board, officer or commis- sioner of the corporation, shall have any interest in the expenditure of money on the part of the corporation other than his fixed compensation. A violation of any provision of this or the preceding two sections shall disqualify the party vio- lating it from holding any office of trust or profit in the cor- poration, and shall render him liable to the corporation for all sums of money or other thing he may receive contrary to the provisions of such sections, and if in office he shall be dis- missed therefrom. (1) Officers interested.—Fox examples illustrating the applica- tion of this provision, see State ex rel. v. Egry, 79 O. S. 391, 413. Compare Sections 12910, 12911, and 12912, making it a erime for any person holding any office of trust or profit in this state, or any agent, servant or employee of any officer or of a board of officers to be interested in any contract for the purchase of property or sup- plies for the use of any county, township, school district, municipal corporation or public institution or any municipal officer to be inter- [96 v. 37, § 45.] ested in any contract or work with or for the corporation. (See these sections under title “Officers,” in Partmlts Member of Sinking Fund Board is an officer holding an office of profit and trust, when. Op. Atty. Gen. (1914), p. 1250. Under such sections it is held un- necessary to a conviction that the officer make a profit on the contract, but sufficient if he is personally in- terested in the proceeds of the sale; nor is it any defense that when said contract was made money therefor was not certified to be in the treas- § 3808-1 ury. Doll v. State, 45 O, S. 445; and the contract so made is void. Dalzell, ete., Co. v. Findlay, 5 C. C. 435, (aff’d, 27 B. 128); Bellaire Co. v. Findlay, et al., 5 C. C. 418; Find- lay v. Parker, 17 C. C, 294 (aff'd, 63 O. S. 565); Marsh v. Hartwell, 2 N. P. 389. See also State v. Funk, 16: CC. n1 85: Compare also § 4757 forbidding any member of a school board to be interested in a contract with such board, under which it was held that a contract between the board and a firm in which a member of the board is a partner is void, and any tax- payer may enjoin the same. Grant v. Brouse, 1 N. P. 145, As to punishment of persons giv- ing bribes to officers or public agents, see § 12823. “Officer” would include an accountant employed by city board of revision; Barker v. State, 69 O. S. 68; and a member of council, Amundsen v. State, 28 C. C. 655; 8 C.C. (N. S.) 518. A contract of employment between a member of council and a railway company by which the member of council is to devote his time to the general management of the com- pany’s business in that city includ- ing the procurement of the rights of way over the streets, which are to be granted by the council of which the councilman is a member, was Sec. 3808-1. THE OHIO MUNICIPAL CODE. 308 held: void. Railroad Company vy. Morris, 10 C. C. 502. In construing § 856 R. S. now sec. 2420 forbidding county com- — missioners to have an interest in a contract on behalf of the county, it was held that the penalty could not be enforced in a case where the con- tractor, subsequent to the letting of the contract, entered into an agree- ment to purchase material therefor from a corporation in which the commissioner was a stockholder, and such subsequent agreement had no influence in procuring the contract. State ex rel. v. Pinney, 47 B. 820. Member of board of health is an officer’ of municipality, and ineligi- ble to office of district physician dur- ing term or for one year thereafter. State ex rel. v. Wichgar, 27 C. C. 743, As to validity of contracts made © by public officials extending beyond the expiration of their terms, see State ex rel. v. Lewis, 12 Dec. 46. As to invalidity of fran- chise where mayor financially in- terested, see Railway v. Cleve- Jang 19 N23 owCN. is) eats Canvassing officers have no au- thority to pass on qualifications of those elected; how a candidate may be disqualified. Op. Atty. Gen. (1915), p. 2342. [Additional compensation.] In villages the street commissioner, in addition to his fixed compensation may receive compensation for the use of tools, teams and equipment when such use shall have been first authorized by resolution of council, specifying the amount or rate of compensation therefor. [108 v. 1230.] Sec. 3809. [Council may provide for light, water and cer- tain public necessaries.] The council of a city may authorize, 309 TAXATION—-RESTRICTIONS AS TO CONTRACTS. § 3809 and the council of.a village may make, a contract with any person, firm or company for lighting the streets, alleys, lands, lanes, squares and public places in the municipal corporation, or for furnishing water to such corporation, or for the col- lection and disposal of garbage in such corporation, or for the leasing of the electric light plant and equipment, or the waterworks plant, or both, of any person, firm, company or municipality or for the purchase of electric current for fur- nishing light, heat or power to such municipality or the in- habitants thereof for a period not exceeding ten years, and the requirement of a certificate that the necessary money is in the treasury, shall not apply to such contract, and such requirement shall not apply to street improvement contracts extending for one year or more nor to contracts made by the board of health, nor to contracts made by a village for the employment of legal counsel, nor to contracts by a munici- pality for the leasing or acquisition of the electric heht plant and equipment, or the waterworks plant, or both, of any person, firm or corporation therein situated. [103 v. 526; 96 v. 37, § 45.] (1) Meaning discussed, see Em- mert v. Elyria, 74 O. S. 185, 196. Certificate required.—Under this section a contract with a com- pany for the services of two men at $50.00 per day, in test- ing the water mains of a muni- cipal water works plant, is not valid without Auditor’s certifi- cate as required by section 3906 G. C. Op. Atty. Gen. (1912), “p. 412. Injunction against contractor.— A reduction company which is en- gaged in collecting and disposing of garbage under a contract en- tered into with a city under au- thority of law (General Code, sec- tions 3809, 3649) and which cre- ates a nuisance by the manner in which it operates its plant, can not be enjoined from continuing to carry out the contract, but will be enjoined from continuing the nuisance. Story v. Reduction Co., Lo N2..P. GN. iS.) 01008) Aa Ra duction Co. v. Story, 25 ©. C. (N. S.) 533. See also Reifsnyder v. Fertilizer Co., 28 0. C. A. 577. Lease of waterworks.—A village prevented by inability so to do, from voting sufficient bonds to construct a water works system may grant a franchise to an in- dividual to construct such a sys- tem, and at substantially the same time lease the system for a period of ten years as provided by sec- tion 3809. Moore vy. Elmore, 13 Nive. CNe pee Obl. A franchise for the construc- tion, maintenance and operation of a system of water works, and providing that the village may lease the same and also for an option thereon at the expiration § 3810 of the period, is not objectionable on the ground of ipdefiniteness or uncertainty, and as containing more than one subject, the lease and option features being condi- tions of the franchise and not subjects of limitation. Jb. A contract under this section must conform to the conditions ot THE OHIO MUNICIPAL CODE. 310 Constitution. Op. Gen. (1914), p. 769. Implied power to issue bonds to pay for construction of pole line. Op. Atty. Gen. (1914), p. 1779. Contracts under this section not required to be let upon competi- tive bids after advertisement. Op. Atty. Gen. (1918), p. 152. Atty. section 6, Article XVIII of Ohio Sec. 3810. [When money may be deemed in treasury and in appropriate fund.] Money to be derived from lawfully authorized bonds or notes sold and in process of delivery, shall for the purpose of the certificate that money for the specific purpose is in the treasury, be deemed in the treasury and in the appropriate fund. [97 v. 44, § 45a.] (1) See Emmert v. Elyria, 74 O. S. 185. Sec. 3811. [When may not adopt plans or specifications for public improvement.] No municipal corporation shall adopt plans or specifications for a public improvement required by law to be made by contract let after competitive bidding, which requires the exclusive use of a patented article or process, protected by a trade-mark, or an article or process wholly controlled by any person, firm or corporation or combination thereof." [98 v. 204, § 45b.] (1) Patented article.—As to validity of specifications calling for patented article, before enactment of above section, see Hastings v. Colum- bus, 42 O. S. 585; Holbrook v. To- ledo, 28 C. C. 284. See also State ex rel. v. Miller, 30 C. GC. 460. Specifications. — The carrying out of a contract for the pur- chase of an automobile for muni- cipal use will be enjoined where the specifications are so drawn as to prevent compliance there- with except by one concern, un- less compliance is attained by the purchase and assembling of auto- mobile parts from different fac- tories and the production in fhat manner of an unknown machino at a cost possibly prohibitive. Auto Service Co. v. Cincinnati, 16 N. P. (N. 8S.) 369. See also Mog v. Cleveland, 18 N. wv. (N. S.) 49. 31] ASSESSMENTS—IN GENERAL. § 3812 CHAPTER 5. ASSESSMENTS. MAKING AND LEVYING. Sec, 3812. [Special assessments; how made.]! Each mu- nicipal corporation shall have special power to levy and col- lect special assessments, to be exercised in the manner pro- vided by law.? The council of any municipal corporation may assess upon the abutting, adjacent and contiguous or other specially benefited lots or lands in the corporation,? any part* of the entire cost and expense® connected with the improvement of any street, alley, dock, wharf, pier, public road, or place by grading, draining, curbing, paving, repav- ing, repairing, constructing sidewalks, piers, wharves, docks retaining walls, sewers, drains, water-courses, water mains or laying of water pipe and any part of the cost of lighting, sprinkling, sweeping, cleaning or planting shade trees there- upon, and any part of the cost and expense connected with or made for changing the channel of, or narrowing, widening, dredging, deepening or improving any stream or water- course, and for constructing or improving any levee or levees, or boulevards thereon, or along or about the same, to- gether with any retaining wall, or riprap protection, bulk- head, culverts, approaches, flood gates, or water ways or drains incidental thereto, or making any other improvement of any river front or lake front (whether such river front or lake front be privately or publicly owned), which the coun- cil may declare conducive to the public health, convenience or welfare,’ by any of the following methods: First: By a percentage of the tax value of the property assessed." Second: In proportion to the benefits’ which may result from the improvement, or Third: By the foot front® of the property bounding and § 3812 abutting upon the improvement. THE OHIO MUNICIPAL CODE. 312 [107 v. 629; 101 v. 134; 97 v. 98, § 50; 96 v. 39, § 50; 96 v. 26, §9.] (1) Old section 2264 R. S. re- pealed and see old sections 2264a, 2264b, 2266, 2267, and 2269 R. S. repealed. (2) Nature of power of assess-= ment.—Assessments for street pur- poses are those special and local impositions upon property in the immediate vicinity of an improved street, which are necessary for the improvement and levied with refer- ence to the special benefit which such property derives from the ex- penditure of the money. Raymond v. Cleveland, 42 O. S. 522. A re-assessment is a re-apportion- ment of the cost and expense of such improvement and the impo- sition may be either upon the same lands or part of the same lands and it may include other lands. Jb. The principle underlying special assessments is that the property upon which they are imposed is pe- culiarly benefited and therefore the owners do not in fact pay anything in excess of what they receive by reason of the improvement. Walsh v. Barron, 61 O. S, 15; Donohue v. Brotherton, 7 N. P. 367. From the very nature of assess- ments, they can not in any case ex- ceed the benefits for otherwise they would be taking of private property for public use without compensation in violation of § 19, Art. 1, of the Constitution of Ohio. Chamberlain v. Cleveland, 34 O. S. 551; Railway Co. v. Cincinnati, 62 O. S. 465; Day- ton v. Bauman, 66 O. S. 379, and see notes to § 3819, post. Distinguished from taxation. —The power of assessment is not limited by the constitutional pro- vision requiring taxation by a uni- form rule. The power of assess- ment differs from the power of tax- ation. Ridenour v, Saffin, 1 H. 464; Hill v. Higdon, 5 O. S. 243; Reeves v. Treas. Wood Co., 8 O. S. 333; Sessions v, Crunkilton, 20 O. S. 349. Though in a general sense a tax is an assessment, and an assess- ment is a tax, there is a well recog- nized distinction between them. Lima v. Cemetery Assn., 42 O, S. 128; and exemption from taxation would not exempt from assessment for local improvement. Jb. Assessments in proportion to bene- fits are not a taking of private property for public use, but rather a species of taxation. Seovill v. Cleveland, 1 O. S. 126. The fact that lands not included in a taxing district are more bene- fited than some lands in the dis- trict was held not to render an assessment invalid. Weston v. Com- missioners, 6 C. C. 641; see also Raymond v. Cleveland, 42 O. S. 522, Validity in general.—Legisla- tion authorizing municipalities to levy assessments for street im- provements, upon property specially benefited, is constitutional. Hill v. Higdon, 5 O. S. 243; Reeves v. Treas. Wood Co., 8 OQ. S. 333; Ses- sions v. Crunkilton, 20 O. S. 349. In Dayton v. Bauman, 66 O. S. 379, where power to assess abutting property to pay costs of condemna- tion was denied, the power to assess for surface improvements, was re- affirmed. Such legislation is not unconsti- tutional, even though it does not 313 adequately restrict the power of as- sessment so as to prevent abuse. The duty imposed by § 6, Art. 13 of the Constitution is in this regard directory, and not mandatory. Par- sons v. Columbus, 50 O. S. 460. As to what would be sufficient restric- tion, see Maloy v. Marietta, 11 O. S. 636. Assessments may be authorized. to be made in proportion to the feet front or upon the value of the lands as assessed for taxation, leav- ing to the municipality the choice of mode. Ernst v. Kunkle, 5 O. 8S. 520; Hill v. Higdon, 5 O. S. 243; R. R. Co. v» Connelly, 10 O. S. 159, 163. This section, in providing that municipal corporations may assess upon the abutting lots any part of the entire cost and expense connected with the improvement of any street py constructing water mains or laying water pipe, is constitutional. Stranahan v. Madigan, 18 C. C. (N. 8.) 513. Uniformity.—The rule of appor- tionment in assessment, whether by the front foot or a percentage of the assessed valuation, must be uni- form, affecting all property alike. One rule can not be applied to one owner and a different one to another owner. R. R. Co. v. Connelly, 10 O. S. 159, 165; Jaeger v. Burr, 36 O. S. 164; Upington v. Oviatt, 24 O. S. 232, 246. ; An assessment is not uniform which prescribes an equal propor- tionate charge, but allows a credit to the owners on one side, who had already done most of the work on that side. Jaeger v. Burr, 36 0. S. 164, But the requirement of uniform- ity is not violated by dividing a ASSESSMENTS—IN GENERAL. § 3812 street of varying widths, into as many sections as there are differ- ent widths and uniformly assess- ing the property on each section. Findlay v. Frey, 51 O. S. 390. If a street of varying widths, however, is not divided into sections, the as- sessment does not have to be grad- uated according to the width, but may be uniform on all the street. Smith v. Cincinnati, 6 N. P. 175. The same is true of assessment for sidewalks of varying widths. Ulm Vv. Cincinnati, i IN P9278. And see Op. Atty. Gen. (1912), p. 1626. Where a street to be improved divides two municipalities, each may assess the abutting property within its limits and a difference in amount between the two assessments will not invalidate them. Scully v. Cincin- nati, 1 C. 8. C. R. 183. And assessment may be made on owners on one side of street forming boundary, though made on owners on both sides where same street lies wholly within the municipality. Glasheim v. Cheviot, 53 B. 307. One seeking to enjoin a_ street assessment on the ground that lots or lands that should have been as- sessed have been omitted, must show that the omitted lots or lands de- rived some benefit from the improve- ment, and that a proper assessment, including such lots or lands, would probably reduce the assessment on his property. Burr v. Parker, 30 C, G. 297; 10 C. Co (N,S.), 550. The fact that a parcel of land described in the improvement or- dinance is not assessed, does not affect the validity of the assess- ment, when such parcel is not bene- fited by the improvement. Ridenour v. Biddle, 30 ©. C. 237; 10 C. C. (N. 8S.) 438. § 3812 Properties, in front of which are cement curbs and gutters in good repair and theretofore con- structed under the provisions of a city ordinance, can not be as- sessed for any portion of the cqst of constructing similar cement curbs and gutters in front of other properties abutting on the same street, and which were con- structed as a part of the general improvement of said street by paving and constructing curbs and gutters. Titlow, et al. v. Spring- field, 19 N. P. (N. 8.) 65; (aff’d by Court of Appeals without re- port). As to uniformity where property not abutting, but near to, the im- provement, is included, see Allen v. Cleveland, 1 Clev. 2, Under a stat- ute allowing assessment of property abutting on the street or “near thereto” the assessment need not be made upon the property on the whole street, but only on that part of the street improved. Scovill v. Cleve- land, 1%. S. 126. As to validity of assessment where property in the assessing district is divided into two classes, viz., abut- ting property, and contiguous prop- erty, and each class assessed by a different rule, see Akron v. Allen, 22 B. 260. Change of law pending pro- ceedings.—The assessment must be governed by the law as it was at the time of the improvement ordi- nance, with respect to the manner of assessment and the rights and li- abilities of the owners of abutting property. Cincinnati v. Season- good, 46 O. S. 296; Shehan v. Cin- cinnati, 25 B. 212 (aff’d, 27 B. 375); Stuart v. Lakewood, 23 C. Cc. (N. 8.) 269. THE OHIO MUNICIPAL CODE. 314 In Toledo v. Marlow, 28 C. C. 298; 8 C. C. (N. S.) 121, it wag held that assessment is a proceeding with- in the meaning of and protected by § 79 R. S., (now § 26 G. C.) and that the law in force at the com- mencement of the proceeding must govern, and the limit of assessment provided at that time prevails and that in the absence of a petition for the improvement, the preliminazy resolution is the beginning of the proceeding; see also Squier v. Cin- cinnati, 5 C. C. 400. Harding v. Cincinnati, 18 C. C. (N. S.) 317. But as to this ground see Union Co. v. Greene, 40 O. S. 318, disap- proved, however, in 58 O, S. 225. See also Ehni v. Columbus, 3 C. ©. 494; and Crossley v. Findlay, 10 C. C. 286; Cincinnati v. Davis, 58 O. S. 225, 226. And when an improvement is pe- titioned for, to ascertain the effect of the petition, reference should be had to the law in force at the time the petition was presented. Haynes v. Cincinnati, 62 O. S. 116, 122. Section 211 of the original code (now omitted) provided that no rights in favor of or against any municipality existing prior to the act, nor any action, or proceeding sluuld be affected by the change in the law. A section similar to this in a former Code (§ 1539 R. S. repealed) was held to apply to as- sessments and make the rights of parties fixed under the law in force at time of improvement ordinance. Raymond vy. Cleveland, 42 0. S. 522, 529; Cincinnati v. Davis, 58 O. 3. 225. And the law in force at the time of the assessment would govern a re-assessment, required by the for- mer law to be conducted in the same manner as the original assessment, 315 though the new law was passed be- fore the re-assessment. Jb. After a ' contract has been made for an im- provement and the work commenced, the right to make an assessment to defray the expenses of the improve- ment, will not be affected by repeal of the act governing such matter where there is a saving clause in the new law. Corry v. Gaynor, 22 O. S. 584; Hubbard v. Norton, 28 O. S. 116. A tax levy to provide a sinking fund for bonds for improvements, is not a part of the “proceeding” in which assessments for the improve- ment were levied; and so a city can- not levy taxes by sewer districts to provide a sinking fund for sewer district bonds, issued since the mu- nicipal code of 1902 went into effect, for the purpose of paying that portion of the cost of sewers constructed in certain districts and not as- sessed upon the property specially benefited, notwithstanding proceed- ings therefor were commenced in council before the present code went into effect and under a statute au- thorizing such levy. Alexander v. Spencer, 32..C, .C: 306; 13... C. (N. 8.) 475 (aff’d, 83 O, S. 492). Independently of any _ saving clause, it was held that a new law, though limiting the amount of as- sessments, could not effect con- tracts made by a city with a con- tractor to deliver to him the as- sessments made, for such new law would in this regard impair the obligation of contracts. Goodale v. Fennell, 27 0. 8. 426. Existing assessment ordi-= nances remain in force notwith- standing the change of the organiza- tion of a municipality, if not incon- ASSESSMENTS—IN GENERAL. § 3812 sistent with the statute. Neff v. Bates, 25 O. S. 169. Construction of assessment laws.—Strict construction in favor of property owner is required. Cin- cinnati v. Conner, 55 O. S, 82, 91. See also § 3911, post. The general policy of assessment laws being to limit the amount of assessments, particular statutes will be construed as though in- tended to adhere to that principle. Birdseye v. Clyde, 61 O. S. 27. Conditions precedent to as- sessment.—The determination to make the improvement and _ to charge lot owners must precede the actual making of the improve- ment. Donohue v. Brotherton, 7 N. P. 367; Folz v. Cincinnati, 2 Handy, 261. But the assessment may be made before the improve- ment. Morgan v. Cleveland, 1 Clev. 38. It is not necessary to determine in the preliminary resolutions and ordinances, the proportion to be as- sessed, and a different proportion may be fixed in the assessing ordi- nance, see note “Amount of Assess- ment,’’ § 3815. Contesting assessments.—In- junction.—An assessment standing on the tax duplicate will be pre- sumed to be valid, and one seek- ing to enjoin its collection must show its invalidity by proper aver- ment and proof. Bolton v. Cleve- land, 35 O. S. 319; Close v. Park- er, 30 C. C. 384; 11 C. C. (N. S.) 85 (aff'd, 79 O. S. 444). Perpetual injunction will be granted only when the plaintiff shows a clear right thereto. Sprang- ler v. Cleveland, 43 O. S. 526. Injunction will not lie by abut- ting owner prior to the making of § 3812 the contract because of defects in the improvement. Owner can en- join assessment when made. Wood v. Pleasant Ridge, 12 C. ©. 177. Where an assessment may be contested on a ground common to all abutting owners, as for defects in the proceedings and also on a ground peculiar to one owner alone, one who resorts to the for- mer ground is barred, in a later suit, from contesting assessment on the latter ground. Cincinnati v. Emerson, 57 O. S. 182. Petition to enjoin must show that the plaintiff is prejudiced by the irregularities complained of. Slavin v. Greene, 2 N. P. 39. Amendment of petition, see Ulm v. Cincinnati, 7 N. P. 278. Assessment will not be enjoined for irregularities in proceedings which are curable, where the amount properly chargeable is the same as the assessment. Steese v. Oviatt, 24 O. S. 248. Where the evidence as to the necessity of a street improvement is contiucting and fails to show an abuse -of discretion on the part of council in authorizing the improvement, a court will con- clude the improvement was neces- sary. Cormany v. Cincinnati, 30 O. C. A. 121, 10 Oh. App. 280. The jurisdiction to restrain the collection of illegally assessed taxes and assessments being an equitable jurisdiction, courts of appeals have appellate jurisdiction in the trial of such cases. Man- ning v. Lakewooa, et al. 94 O. S. 85. Injunction will lie where the con- tractor has failed to perform his contract. Stone v. Viele, 38 O. 8. 314. THE OHIO MUNICIPAL CODE. 316 Where sufficient installments have been paid to equal a proper assessment, court may enjoin col- © lection of remaining installments. Cincinnati v. James, 55 O. S. 180. Two or more persons claiming relief on the same ground may join in an action to enjoin the as- sessment or one may sue in behalf of others. Upington v. Oviatt, 24 O. S. 232. When cost may be di- vided, see Reed vy. Cincinnati, 8 C. C, 393. Owners may enjoin without first applying to the city solicitor. They do not sue as taxpayers. Moore vy. Cincinnati, 15 B. 196. As to rights of court to fix amount properly chargeable, when assessment is enjoined because of technical irregularity or defect, see § 3901, post. For matters relating to defenses to suits to collect assessments, see notes under § 3898, post. Limitation of actions.—Ac- tion to enjoin collection of assess- ment on ground that it is in excess of benefits is not barred in four years from the date of the assess- ment, but the four years’ statute begins to run from the dates when the respective installments are due. Gault v. Columbus, 30 C. ©. 335; 10 C. C. (N. S.) 263; Dickerson v. Cincinnati, 21 C.C. (N.S.) 81; 3 Oh. App. 68; aff’d 91 O. S. 406. Estoppel to contest.—Partici- pation in causing improvement to be made.—One who participates ac- tively in causing an improvement to be made, by petitioning for the improvements, etc., is thereafter estopped to deny the authority of the municipality to proceed in the Way sought and make the assess- ment. Tone v. Columbus, 39 O. S. ‘ 317 281. But he will not be estopped from objecting that the subsequent proceedings of council were not in conformity to statute. Jb. A petitioning property owner is estopped from objecting that the work was done in an improper and negligent manner where it was done in the way designated in the petition. Breuer v. Gib- son, 14 C. C. (N. S.) 48. The property owner who has in- duced the contractor to enter into a contract and do the work by as- surances that he would be paid, is estopped to contest the validity of assessments on the ground that the contract was void because not founded on petition with the requi- site number of signers. Corry v. Gaynor, 22 O. S. 584. One who participated in the elec- tion of commissioners to carry out the improvements was held estopped to the same extent that a petitioner for the improvement would be estop- ped. Columbus vy. Slyh, 44 O. S. 484. The property owner would not be estopped from contesting the validity of assessments for water works be- cause he had voted for the water works trustees, or had paid taxes, a part of which were for payment of interest on water works bonds. Wil- lard v. Close, 25 B, 391. Estoppel from executing paper set- ting forth that improvement was legally made, to enable municipality to issue its bonds, see Shepard v. Barron, 14 O. F. D. 417; 3 O, L. R. 327. See further, as to estoppel under various former laws, Bloch v. God- frey, 26 C. C. 781; 5 C. C. (N. sor) 318, Petitioning for improvement. —For matters relating to estoppel ASSESSMENTS—IN GENERAL. § 3812 by petitioning for improvement, see notes under §§ 3835 and 3836, post. Permitting improvement with- out objection.—See, on question whether there can be estoppel from mere silence with knowledge that improvement is being made, Co- lumbus v. Agler, 44 0. S. 485; Wright v. Thomas, 26 O. S. 346; Andrews vy. Settles, 16 C. C, 638; but see Tone v. Columbus, 39 O. S. 281; Quinlan v. Myers, 29 O. S. 500; Danks v. Phares, 9 Rec. 554; Birds- eye v. Clyde, 61 O. 8. 27, 37; Taylor v. Wapakoneta, 26 C. C. 281. See also Gault v. Columbus, 30 C. C. 335; 10 OC. C. (N. S.) 263. The owner of land not having pro- moted the making of improvement, is not estopped to contest the un- constitutionality of the assessment, though he may have known of the improvement and of the intention to make the assessment. Lewis v. Symmes, 61 O. S. 471. Where no notice given, knowl- edge of owner of the proceedings and improvement will not estop him to contest. Rentscheler v. wero, 1S Ol Ol CON oo) eeous (aie d 86" “OS'S San). But where the improvement is made on his own land, as where a sewer is run across private prop- erty, the owner would be estopped to contest the assessment by permit- ting improvement without objection. Wilson v. Cincinnati, 5 N, P. 68; see also Milliken v. Fearnside, 30 C. C. 45; 10 C..C. (N. 8S.) 259; Kel- logg v. Ely, 15 O. 8. 64, So, an owner whose land is taken, or encroached upon, in the improve- ment of a street, but who permits the improvement without objection is estopped to contest the assessment on the ground that the municipality § 3812 had not acquired title to the prop- erty improved. Neff v. Bates, 25 O. S, 169; Cincinnati v. Longworth, 4 Ree. 528; Cincinnati v. Goodman, 5 Rec. 153. See also note “Estoppel to deny Title,” post. Payment of part of assess= ment.—Property owner is not estop- ped to enjoin collection of install- ments of assessments in excess of amount allowed by law on ground that he has voluntarily paid the first installments. See Monroe v. Cleveland, 29 C. C. 633; 9 C. C. (N. 8.) 523, and reversal, 78 O. S. 441, Payment of part of assessment in- stallments will not estop a property owner who has protested that the work was not properly done accord- ing to contract. Hartzell v. Alliance, 39 B. 232. (Supr. Court not re- ported.) See also Metcalf v. Car- ter, 19 C. C. 196; Cincinnati v. James, 55 O. S. 180. Payment of part of assessments in excess of benefits will not estop property owner from setting up de- fense that benefits are exceeded, where the steps in the improvement had been taken without his knowl- edge and he did not participate in any way in carrying forward the im- provement. Yost v. Ry. Co., 24 C. C. 169; 2 C. C. (N. 8S.) 519. Receiving compensation.—The fact that the owner of property re- ceived compensation for part of his land taken would not estop him to resist the assessment for the im- provement of the road because of its unconstitutionality. Lewis v. Tay- lor, 18 C. C. 448, 451. Unconstitutional statutes.— The principles of estoppel apply as well where the proceedings of a cor- THE OHIO MUNICIPAL CODE. 318 poration are questioned on the ground of unconstitutionality of a statute under which they are had as where they are attacked upon other grounds, unless such proceed- ings or what is sought to be accom- plished by them are per se illegal or malum prohibitum. Tone v. Colum- bus, 39 O. S, 281, and see Lewis v. Symmes, 61 O. S. 471, and State v. Mitchell, 31 O. S. 592; Wright v. Thomas, 26 O. S. 346; Murdock v. Cincinnati, 25 B. 26; Mt. Vernon v. State, 71 O. S. 428; Shepard v. Barron, 14 O, F. D. 417. Extent of estoppel.—A person may estop himself by his acts in promoting an improvement, to deny the legality of the action taken by the authorities with his consent, but he would not ordinarily be estopped to dispute an asessment on his prop- erty beyond the limitation fixed by law. Birdseye v. Clyde, 61 O. 8S. 27. As to when an owner has estopped himself from disputing an assess- ment beyond the limitation, by ex- press agreement, in a petition for the improvement, see notes under § 3836, post. What persons estopped.—The acts of owners who procure the im- provement and assessment to be made will not operate as an estop- pel of their intermediate mortga- gees. Donohue v. Brotherton, 7 N. P. 367. But where the grantor is estopped his grantee is equally es- topped. Columbus v. Slyh, 44 O. 8. 484; and this is so even though the grantee bought without actual notice of the lien of the assess- ment. Danks v. Phares, 9 Ree. 554. But the owner will not be estop- ped by the acts of his agent, signing for the property; though such acts would estop the agent were he 319 owner. Andrew v. Auditor, 5 N. P. 123. A purchaser agreeing in a deed to pay specified assessments for ‘street improvements on the prop- erty is estopped to contest the va- lidity of assessment which had been levied on the property at the time of the acceptance of deed. Caldwell v. Columbus, 37 B. 270; Herman v. Columbus, 15 Dec. 509; 3 N. P. (N. S.) 216; Waldschmidt v. Bow- land, 27 C. C. 782; 6 C. C. (N. 8S.) 99 (aff'd, 73 O. S. 360). But see Lewis v. Taylor, 18 C. C. 443 (aff'd, on other grounds, 61 O. 8, 471). But where it does not appear that the amount of the assessment was taken from the purchase price or could have been known at time deed was made assessment ordinance not yet having been passed, a mere recital that purchaser will pay street as- sessments, will not estop him from contesting their validity when levied. Walsh v. Sims, 65 O. S. 211; Bell v. Norwood, 28 C. C. 809; 8 C. ©. (N. S.) 435. Change of judicial construc- tion.—Courts will not enjoin an as- sessment on the ground of the un- constitutionality of the law under which it was levied, if the improve- ment is made and the assessment levied, and the bonds of the munici- pality issued, even though similar legislation has been held by the re- cent decisions of the court to be ob- noxious to the constitution, if the law under which the assessment was levied is in all material respects Similar to a law which had previ- ously been held _ constitutional. Shoemaker y. Cincinnati, 68 O. S. 603; Gault v. Columbus, 13 Dec. 575; 1 N. P. (N. S.) 201; Price v. Toledo, 25 C. C. 617; 4 C- C ASSESSMENTS—IN GENERAL. § 3812 (N. S.) 57; Cincinnati B. & D. Co. v. Cincinati, 30 C. C. 501; 10 C. C. (N. 8.) 31. As to the case where the steps taken were in compliance with that part of a law which was constitu- tional, but a requirement of a law which would now be considered un- constitutional, was not complied with, see Adkins v. Toledo, 27 C. C. 417; 6 C. C. (N. S.) 433. Proceed- ings in such case held valid. Ib. An assessment under this law involves no contractual relation between the municipal corpora- tion and the property owners and the rule that no retroactive oper- ation is to be given to a change in the judicial construction of a statute is restricted to cases in- volving contractual relations. Sidney v. Cummins, 93 O. 8. 328. Defect in work.—Assessment for street improvement can not be en- joined on ground of defect in the work, unless fraud is shown. Mce- Glynn’ iv. ‘Toledo, “22 “CG, 1 Gr’ 34 (aff'd, 67 O. S. 498). But see Tay- lor v. Wapakoneta, 26 ©. C. 285. Where injunction is sought against assessment on the ground that the improvement was not made accord- ing to specifications, a claim made after the lapse of many years, must be supported by the clearest proof. Gault v. Columbus, 13 Dec. 575; 1 N. P. (N. S.) 201. But burden is on defendant to show that the de- fects appeared at such a time as would bar plaintiff’s action. Coit v. Columbus, 13 Dec. 578; 1 N. P. (N. 8.) 600. As to estoppel to contest assess- ment on this ground, see Tone v. Columbus, 39 O. S, 281]. (3) What property may be assessed.—Generally, — Lands ap- § 3812 propriated and used by a railroad company for its tracks are subject to the assessment for street improve- ment. R. R. Co. v. Connelly, 10 O. S. 159; R. R. Co. v. Belmont Go.,; 19 O. S. 589. Street railway property may be assessed to pay the company’s share of expense of paving between the tracks, as property subject to as- sessment, though #not abutting. Cleveland v, R. R. Co., 1 Clev. 304. Property used as a wharf, is a lot subject to assessment. Boeres y. Strader, 1 C.'S..C: R. 57. Land cut in two by the street be- comes two lots for assessment pur- poses, and each part must bear its own charge separately. Spangler v. Cleveland, 35 O. S. 469; Younglove v. Hackman, 43 O. S. 69. Several lots owned by one person and abutting on the improvement, must be separately assessed; one lot can not be liable for the aggregate amount assessed on all. Corry v. Folz, 29 O. S. 320. Where lands are platted into lots the fact that the lot assessed is shal- lower than the rest will not be con- sidered. Locke v. Cincinnati, 7 N. P. 318. The area of a street put through the property to be assessed, since the improvement, is deducted from the property. Coates v. Norwood, 16 CG. C. 196. Abutting property.—What is.— Abutting property would seem to include only that abutting the part of a street improved and not all property abutting on the entire street. Creighton v, Scott, 14 O. S. 438; Scovill v. Cleveland, 1 O. S. 126, 183; R. R. Co. v. Connelly, 10 O. S. 159; Smith v. Toledo, 24 O. S. 126, 130. THE OHIO MUNICIPAL CODE. 320 Where a city improved only nine- ty feet of a ninety-one foot strip dedicated to it for street purposes, leaving a strip of one foot on one side, the owners of property on that side are nevertheless liable to be assessed as owners of abutting property. Richards v. Cincinnati, 31 O, S. 506. Such an unused nar- row intervening strip would exempt owners on that side from assessment, only in case it deprives them of the free and lawful access to their prop- erty. Jb. An owner whose lot is separated from the street by a narrow strip, although he is licensed by the owner of the strip to use it for building purposes, such license, however, not having become irrevocable, is not an abutting owner. Buse v. Cincinnati, 28 E. 111. Where the improvement is con- fined to one side of a street, the own- ers of lots abutting the other side would seem to be owners of lots abutting the improvement. See Cin- cinnati v. Batsche, 52 O. S. 324; lodsworth v. Cincinnati, 18 C. G 288. : Property on parts of the street beyond the ends of the improve- ment, is not property bounding and abutting on the improvement for purposes of front foot assessment. Cincinnati v. Batsche, 52 O. S, 324; Klein v. Cincinnati, 7 C. C. 266 (affirmed without report, 33 B. 83) ; Frey v. Findlay, 7 C. C. 311, 319. Approval of subdivision by coun- cil under § 3584, after a street as- sessment has been made, would not relate back so as to make only the abutting lots in the subdivision lia- ble for assessments. Cincinnati v. Corry, 2 B. 337. Where the front of a lot abutting 321 on a street is owned by one per- son and the rear is owned by an- other, the street assessment by the front foot must embrace the entire lot as numbered and recorded, and the assessment must be apportioned between the owners in accordance with the part owned by each. Frey v. Findlay, 7 C, C. 311, and see Coates v. Norwood, 16 C. C. 196. What constitutes abutting prop- erty subject to assessment is to be determined by the situation of the property at the time of the im- provement ordinance and is not af- fected by the sale of a strip off the front after such ordinance is passed. Douglas v. Cincinnati, 29 O, S. 165. And see Shiner v. Norwood, 17 C. C. 631; Stallo v. Cincinnati, 17 Dec. 714. Contiguous and adjacent prop= erty.—What is—The meaning of the words “adjacent and contigu- ous” can not be limited by any ab- solute or fixed measurement but must be determined by the circum- stances of each case; yet’ for all practical purposes they may be said to embrace lots and lands “near to” the improvement, and all such when specially benefited are liable to be charged with the costs and expense, when contiguous and adjacent lands are included in the assessment. Meissner v. Toledo, 31 O. S. 387, 395. Assessments; how made on strip of land owned by railway com- pany which abuts and runs par- allel to street. See Op. Atty. Gen. (1919), p. 501. Property exempt.—School lands are not liable for assessment for Street or sidewalk improvements. Toledo vy. Board of Education, 48 O. 8. 83; Board of Education v. Toledo, ASSESSMENTS—IN GENERAL. § 3812 48 O. S. 87. And a statute making school property subject to assessment was held unconstitutional. Board of Education v. Auditor, 35 B. 294. But as to exemption of school prop- erty, see Becker v, Columbus, 18 C. C. 888; and see § 3837 and notes. And where the school board held under a lease by which it agreed to pay the lessor’s burdens, property was held liable to assessment. Cin- cinnati v. Board of Education, 2 B. 184, Municipality cannot assess against the county the cost of paving a county bridge within the corporate limits where the county is not the owner of abutting prop- erty. See Op. Atty. Gen. (1920), p. 793. Liability of township for street assessments on property owned within municipal corporation. See Op. Atty. Gen. (1921), p. 561. Institutions of public charity are not exempt from assessment for im- provement. Gilmour v. Pelton, 2 B. 159. Property of a cemetery corpora- tion not exempt though exempted by law from taxation. Lima v. Cemetery Association, 42 O. S. 128. Where property is dedicated to municipality on condition that lots abutting shall be exempt from im- provement assessments without the consent of the majority such lots will not be exempt, for the condi- tion is inoperative. Richards v. Cincinnati, 31 O. S. 506. Where a city purchases land to be used as a boulevard, and as a consideration for such land agrees that no special tax or assessment for the improvement thereof or the maintenance of said boule- vard will ever be levied or as- § 3812 sessed against the property abut- ting said boulevard, it will be enjoined from assessing the cost of such improvements against the abutting lands of the grantor; but the condition against assess- ments for future maintenance are against public policy and void. Vrooman v. Toledo, 26 C. C. (N. 8S.) 129; 5 Oh. App. 222. See also Vrooman v. Toledo, 26 C. C. (N. 8.) 135; 5 Oh. App. 230, where a similar holding was made ip. case ot land dedicated for street purposes. Property in territory an- nexed.—Property annexed to a mu- nicipality after the improvement was ordered but before it was com- pleted, may be included in the as- sessment. Upington v. Oviatt, 24 O. S. 232, 246. As to the effect upon assessment of a condition in an agreement of annexation, see Cincinnati v. Corry, 2 B. 337. As to effect on assessment of previous improvement of property before its annexation to city, see Cin- cinnati v. Monfort, 3 B. 451. (4) Assessment of part.—Where a market house occupies the mid- dle of a street, extending across an entire square from one inter- secting street to another, and the said street is improved with a new pavement on both sides ot the market house, an assessment of fifty percent of the cost, ex- clusive of intersections, against the abutting property is not in- equitable but may be legally made and will not be enjoined. Wolf v. Cincinnati, 20 C..C. (N. 8.) 566; 1 Oh. App. 489. Improvements by general taxa- tion.—Council is authorized in § 3812 above, to assess any part of THE OHIO MUNICIPAL CODE. 322 \ the cost of improving streets, etc., upon abutting, adjacent or contigu- ous property. It has not the power to so assess ali such cost, for it is restrained by §§ 3819, 3820 and 3896, and by the decisions cited thereunder. But council has power under § 3784 to pay the entire cost of any and all public improvements by general taxation upon all the real and personal property in the corpo- ration. Similar authority, though not so broad in scope, was given by old §$§ 2262 and 2263 R. S., re- pealed. Municipality may use funds arising from automobile license tax to pay its share of cost of improvement. See Op. Atty. Gen. (1922), p. 70. (5) What costs and expenses included.—See notes to § 3896, post. (6) Conducive to public health, etc.--The requirement of this sec- tion that council shall find and declare that an improvement wili conduce to the public health, con- venience or welfare, has reference to the improvement of ditches, ete., and not to the numerous street, alley and other improve- ments provided for in the sec- tion as it stood in its original form. McCutcheon v. Franklin, 30 O. OC. A. 536. Where it is proposed to assess the cost of improving water courses, the provision of this sec- tion as to declaration that the improvement will be conducive to public health, convenience or wel- fare, is mandatory., Kasch v. Akron, 100 O. S. 229. But see the curative provisions of § 8911, as amended (108 O. L. 1227), after this decision was rendered. For what purposes assessments ee A aa ee . omces 323 may be levied.—Assessments may be made for grading and bowl- dering a street, under the gen- eral power to improve and assess. Jessing v. Columbus, 1 C.. C. 90, (aff’d, 22 B. 453; 23 B. 3); Kelly v. Cincinnati, 28 O. C. «a. 376; 6 Oh. App. 466. Assessments may be made and en- forced though the proceeds go, not to pay for the work or the bonds issued in anticipation, but to reim- burse the general fund, where the municipality, on account of delays in collection, had to pay the bonds out of the general fund. Chamberlain v. Cleveland, 34 O, S. 551. An assessment may be made for the improvement of a public way, the right to which the public has ac- quired by prescription. Duffy v. Norwood, 3 N. P. 325. The assessment can be levied only for the costs and expenses connected with the surface improvement of the street or public place. Costs and expenses connected with the appro- priation of the property or with the satisfying of claims for damages to abutting property, can not be in- cluded in the assessment. See notes to § 3896, post, and see Op. Atty. Gen. (1919), p. 1463. Assessment may be levied on abutting owners for construction of sidewalk and paving of street con- stituting approach to a bridge constructed by county commissioners within a municipality. Slusser v. Sidney, 11 N. P. (N. S.) 297. Side walks, curbing, etc.— Sidewalks, curbing, etc., may be con- structed as a part of street improve- ment according to method provided in §§ 3812 et seq., notwithstanding special provisions of $$ 3853 et seq. ASSESSMENTS—IN GENERAL. § 3812 Baldwin v. Springfield, 10 N. P. (N. S.) 65; 20 Dec. 265. Notice of passage of resolution of necessity of improvement by paving, curbing and guttering, is not de- fective by failing to give abutting owner opportunity to construct curb- ing, as would be the case were the curbing constructed under § 3853. Ib. Sanitary sewer.—Assessment for sanitary sewer not authorized by street improvement legislation. See Roebling v. Cincinnati, 102 O. S. 460. But the municipality is authorized, under this section, to include a sanitary sewer as a part of the street improvement if the legislation pro- viding for such improvement so specifies. Albrecht v. Cincinnati, 104 O. S. 266. Ornamental lighting. — §§ 3812 and 3842-1 et seg., general code, so far as they relate to the subject of street lighting improvement, are in pari materia and are not irrecon- cilable; they furnish concurrent methods for initiating such improve- ment, and, since there was no ex- press repeal of the former statute in that respect, there was no repeal thereof by implication. Leipsic vy. Wagner, 105 O. S. 466. ‘*Repair’’ Defined—The word ‘‘repair’’ in reference to a pave- ment is inherently local and more or less temporary. It is usually made necessary by some local disturbance or defect in the pave- ment and it is none the less ‘‘re- pair’’ because new material must be used in order to effect such ''repairt7, 4 Riva Cow wv, Cleveland, 97-0. SuT 22s ‘‘Repave’’ defined—The word ‘‘repave’’ in reference to a street § 3812 improvement has an equally well defined customary usage and meaning and relates generally to a new pavement either of the same or different material for the full width of the street thereto- fore similarly improved or for some defined section thereof. Ib. Ditch. Construction of within corporate limits; assessments. See Op. Atty. Gen. (1919), p. 626. Power of municipality in repair of county ditch within municipal limits. See Op. Atty. Gen. (1922), p. 852. Water mains and water pipes.— Municipality is without authority to contract with the owners of lands to be assessed for reimburse- ment when houses are built and connections made. See Op. Atty. Gen. (1920), p. 1159. Assessment for laying water pipes. See Op. Atty. Gen. (1922), p. 1116. Improvement without title in municipality.—A municipality has no power to improve private prop- erty for street purposes without the ‘consent of the owner or appropria- tion proceedings, and therefore it can not assess abutting property for such unauthorized improvement, even though the owner of lands as- sessed has been served with notice and received benefit. Baker v. Norwood, 22 C. C. 173; see Harbeck Vee Loledo, ti Ol. aloe Where acceptance by ordinance was required before dedication could be deemed complete, a street claimed by the municipality but not so ac- cepted can not be improved, and as- sessments for its improvement are void. Merchant v. Waterman, 3 W. L. M. 48. Where the public street has been improved, the property owners can not resist assessment on the ground THE OHIO MUNICIPAL CODE. 324 that the site of the street was changed from a canal to the street without a new condemnation, or that a municipality had granted to a railroad company the right to use the street for its tracks. For any injury which may have been sus- tained by such changes in the use of the land, the remedy is by action for damages. Richards v. Cincin- nati, 31 O. S. 506. Where a city’s right to improve a street depends upon the approval of the plan of improvement by the state board of public works, property own- ers can not resist assessment by showing that certain details in the plan had not been duly approved. Jb. Title acquired later.—The fact that a municipality has not acquired . title to a part of the street on which improvement is made until after the work is contracted for will not make the assessment void. Cincin- nati v, Wilder, 9 Ree. 727. Though the city has not title to the property improved at the time the preliminary steps for the im- provement were taken, yet if before the assessing ordinance is passed the property is duly acquired, the assess- ment will be legal. Cincinnati v. Honnigfort, 32 B. 32; Weston v. Hamilton County, 6 C. C. 641, 643, (affirmed without report, 30 B. 291); Toledo v. Barnes, 1 N. P. 185. Where the city acquired title to the property improved after the work was begun and even after suit commenced to enjoin the assess- ment, the assessment was held valid. Wilson v. Cincinnati, 5 N. P. 68, Condition in city’s title.— Where the municipality has ac- quired by dedication the land to be improved its title will not be de- fective because of a condition in 325 the dedication, but such condition will be inoperative. Richards v. Cin- cinnati, 31 O. S. 506. Where a city condemned turnpike property in the hands of county com- missioners ag an abandoned road, the city’s title will not be defective be- cause of conditions of the grant to the turnpike company, of its road- way. Cincinnati v. Schoenberger, 2 B. 128. Estoppel to deny title.—The land owner who permits the street to be improved, knowing that his pred- ecessor in title had undertaken to dedicate it would be estopped to con- test the assessment, Neff v. Bates, 25 O. S. 169. A property owner over whose pri- vate property, not yet acquired by a city, a sewer has been put, but who made no objection thereto at the time of the improvement, can not re- sist the assessment for the im- provement. His only remedy is dam- ages for the appropriation. Wilson v. Cincinnati, 5 N. P. 68. As to estoppel to resist an assess- ment for improvement including pri- vate property not yet properly ac- quired by the city where the lot owner permitted the improvement to go on without objection, see Cincin- nati v. Schoenberger, 2 B. 128; Cin- cinnati v. Longworth, 4 Rec. 528; Cincinnati v. Goodman, 5 Ree. 153. Street between two munici- palities.—Where the street divides a city from a village each munici- pality may improve the part within its boundaries and assess abutting owners and the difference in the amount between the assessments will not make them void for want of uni- formity. Scully v. Cincinnati, 1 C. S.C. R. 183, Lighting streets.—No machinery ASSESSMENTS—IN GENERAL. § 3812 authorized to levy assessment for street lighting. Op. Atty. Gen. (1918), p. 1462. But see later provisions of § 3842-1, et seq., post. (7) Percentage of tax value.— Under former laws the statute lim- iting the amount of assessment to a proportion of the tax value of abut- ting property was held to mean the value fixed by the appraisement in force when the improvement ordi- nance was passed and not the one in force at the date of the assessment. Crossley v. Findlay, 10 C. C. 286. (8) Proportion to benefits.— Where an assessment is made in pro- portion to benefits, the amount of the assessment must be apportioned among the several lots and parcels of land specially benefited, in propor- tion to the special benefit which each lot or parcel bears to the whole special benefit conferred by the im- provement. Chamberlain v. Cleve- land, 34 O. S. 551. Such assessment is of course lim- ited to the benefit and can not be in excess thereof. Jb. An assessment can not be levied part by front foot and part by bene- fits. Dick v. Toledo, 11 C, C. 349. An assessment by the front foot can not be made under the guise of the benefit plan. Which- ever plan is adopted must be pur- sued in accordance with the statute, and the two plans can not be commingled. Kelly v. Cincinnati, 28 O. C. A. 376, 6 Oh. App. 466. As to validity of assessment pur- porting to be according to benefits, but actually by the front foot, see Nulsen v. Cincinnati, 27 C. C. 383; 5 U. C. (N. S.) 679. See also § 3812 Funke v. Cincinnati, 21 N. P. €N:) 8.) > U3: (9) By the foot front.—The mode of assessing the costs and expenses of street improvements in municipalities ‘‘by the foot front of the property bounding and abutting on the improve- ment’’ requires the municipality to assess upon an entire length- wise frontage of a lot abutting upon the improvement as weil as its breadthwise frontage. Youngs- town v. Fishel, 89 O. S. 247. Constitutionality of assessments by foot frontage, when properly made by a municipal corporation for street improvements, is well settled. Chamberlain v. Cleve- land, 34 O. 8. 551. See further, Norwood v. Baker, 172 U. 8. 269, as interpreted in French v. Barber Asphalt Co., 181 U. S. 324; Crawford v. Cincinnati, 26 B. 215. Assessment made in terms by the abutting foot is valid, if it does not, in fact, exceed the special benefits. Shoemaker v. Cincinnati, 68 O. S. 603. Where the assessment is by the foot frontage of abutting. property the rate of the assessment must be uniform upon all the property as- sessed. Jaeger v. Burr, 36 O, S. 164. The words “front foot” must be interpreted by their popular mean- ing. Betz v. Canton, 18 C. C. 676. As to what assessment may be deemed to be a front foot assess- ment, see Cincinnati v. Batsche, 52 O. S. 324. It was held that where the as- sessment was by the front foot the owners were liable according to the feet front assessable when the work was ordered and the assessment THE OHIO MUNICIPAL CODE. - 396 made, and not according to the frontage as afterwards reduced by appropriation. Spangler v. Cleve- land, 35 O. S. 469. Lands not subdivided, see § 3813, post, Real front.—Corner lots, etc.— In Haviland v. Columbus, 50 O. S. 471, the court construing the law providing for assessment “by the front foot,” held that when the as- sessment was so made regard must be had to what is the real front of the property; that this is a question of fact to be determined by the man- ner in which the lot was laid out or in which it had been built upon and used and oceupied by the owner and that the lengthwise side of a corner lot abutting on the street improved could not be assessed for the number of feet on that side, but only for the number of feet which the lot had at its real front. This decision was fol- lowed in Toledo v. Scheill, 53 O. S. 447. In section 50 of the» Municipal Code, prior to the amendment of 1909, there was slightly different phraseology from that used in the statute construed in Haviland v. Columbus, and provision was made for assessment “by the foot frontage of the property bounding and abut- ting,” ete. The supreme court in Oakwood v. Stoecklein, 81 O. S. 332 construing this language held that the rule in Haviland v. Columbus no longer applied and that in the case of a corner lot the entire length- wise side abutting on the improve- ment was subject to assessment. In the section above, now providing the method of assessment, as amended in 1910, the phraseology was again changed and the same language used in the statute passed upon in Havi- 327 land v. Columbus has been adopted and it is provided that the assess- ment may be levied ‘‘by the foot front of the property bounding and abutting, etc.’’ The rule of Haviland v. Colum- bus has been expressly repudiated, however, by the Supreme Court in Youngstown v. Fishel, 89 O. 8. 247, so that the following de- cisions defining ‘‘Real Front’’ are of historical interest only: Sandrock v. Columbus, 51 O. S. 317; Burggreve v. Cincinnati, 1 N. P. 80; Wehage v. Cincinnati, 1 N. P. 82; Matthews v. Cincin- ASSESSMENTS—IN GENERAL, § 3812-1 Cincinnati, 10 C. C. 549 (54 O. S. 2&7); Metcalf v. Carter, 19 C. C. 196; Daiber v. Toledo, 7 N. P. 389; Wolfe v. Avondale, 14 C. C. 375; Bentley v. Toledo, 7 N.P. 388; Reed v. Cincinnati, 31 B. 279; Thompkins v. Norwood, 1 N. P. 83; Toledo v. Ainsworth, 7 N. P. 391; Calkins v. Toledo, 12 C.C. 202; Cincinnati v. Manss, 54 O. S. 257, 262; Fridman v. Nor- wood, 1.€. :€s-(Ni 8.); 973-2500, C. 258 (aff’d 49 B. 99); Locke v. Cincinnati, 7 N. P. 318; Merkel v. Cincinnati, 52 B. 286; Mce- Maken v. Hayes, 29 C. C. 535; 10 C. C. (N. 8S.) 38; Cincinnati v. James, 2 N. P. 345; Roegge v. Cincinnati, 52 B. 161. As to estoppel to deny amount of frontage because of admissions in a petition for the improvement, see note “Estoppel to deny frontage” under § 3836, post. nati, 16 B. 249; Barney v. Day- ton, 8 C, C. 480; Schmidt v. Cin- cinnati, 1 N. P. 48; Betz v. Can- ton, 32 B. 92; Toledo v. Sheill, 53 O. 8S. 447; Shattuck v. Cin- cinnati, 1 N. P. 394; Duffy v. Norwood, 12 C. D. 675; Meyer v. Cincinnati, 1 N. P. 81; Betz v. Canton, 18 C. C. 676; Manns v. Sec. 3812-1. [Service connections; service of notice; pen- alty.] The director of public service in cities and council in villages shall have authority to compel the making of sewer and water connections as hereinafter provided. Whenever said director in cities or council in villages deems it necessary in view of contemplated street paving or as a Sanitary regu- lation that sewer or water connections or both be constructed, said director in cities or council in villages shall cause written notice thereof to be given to the owner of each lot or parcel of land to whieh such connections are to be made, which notice Shall state the number and character of connections required. The director of public service in cities and council in villages shall appoint some competent person to serve said notice in the manner provided for the service of summons in civil actions and the report of the person serving said notice or a certified copy thereof shall be prima facie evidence of the service of the notice as therein stated; provided that if any of said owners be non-residents of the corporation or can not be found, such § 3812-2 THE OHIO MUNICIPAL CODE. 328 notice may be given publication twice in one or more news- papers of general circulation in the municipality... If said connections are not constructed within twenty days of such service of notice or day of first publication thereof, as the case may be, the same may be done by the city and the cost thereof, together with a penalty of five per cent. (5%), as- sessed against the lots and lands for which such connections are made and said assessments shall be certified and collected as other assessments for street improvements. No property ~ owner shall be required to construct such connections further from the street main or sewer than the inner line of the curb. Assessments for such connections, whether levied under au- thority of this act or section thirty-eight hundred and twelve of the General Code shall not be subject to the limitations prescribed in sections thirty-eight hundred and nineteen, thir- ty-eight hundred and twenty, thirty-eight hundred and twenty- one and thirty-eight hundred and twenty-two. [101 v. 242.] (1) Notice to non-residents, how given. Op. Atty. Gen. (1916), 1222. Sec. 3812-2. [Resolution requiring company to improve at the time municipality authorizes improvement.] At the time of, or subsequent to the adoption by couneil of a mu- nicipality of a resolution declaring it necessary to improve, pave, repave, surface or resurface a street or other publi thor- oughfare, wherein are located rails, ties, roadbed or tracks owned or operated by a street railway company or compa- nies, which have become worn out or defective, the council of such municipality may by resolution declare the neces- sity of requiring said street railway company or companies, at the time such street or other public thoroughfare is torn up for said street improvement, paving or repaving, surfac- ing or resurfacing, to renew, replace, repair or reconstruct the rails, ties, roadbed, and tracks in said street or thorough- fare in accordance with the plans and specifications prepared by the chief engineer of such municipality, which plans and specifications together with the engineer’s estimate of the cost of the labor and materials necessary for such renewal, replacement, reconstruction or repair shall be on file and open to public inspection in the office of such chief engineer, 329 ASSESSMENTS—IN GENERAL. § 3812-2 and shall conform to the usual methods of such construction, reconstruction or repair. [Copy of resolution and notice given company.] A certi- fied eopy of such resolution, together with a written notice setting forth the time and place at which a hearing will be given said company or companies and at which it or they may be present to make any objections to said resolution, shall be sent by registered mail to the street railway com- pany or companies owning or operating such rails, ties, road- bed and tracks. [Ordinance for improvement; notice of modifications.] After holding such hearing council may by ordinance order and require that at the time at which such street, or other public thoroughfare is torn up for such improvement, paving or repaving, surfacing or resurfacing, the street railway company or companies owning or operating such rails, ties, roadbed and tracks shall renew, replace, recontsruct or re- pair the same in accordance with said plans and specifica- tions, and any modifications or corrections thereof that may be made by council, and a certified copy of such ordinance shall be sent to said street railway company or companies by registered mail. [Appeal to public utilities commission; notice of hearing to solicitor; when bids for improvement may be authorized.] If the said street railway company or companies are dissatis- fied with such ordinance of council, requiring such renewal, replacement, repair or reconstruction, it or they may, within ten days after the passage of said ordinance, file a written complaint or appeal with the public utilities commission of Ohio. Notice of the time fixed by said commission for the hearing of said appeal shall be given to the solicitor of said city or village, and it shall be the duty of said commission, within thirty days after the filing of said appeal to hear and determine the same and approve, revise, modify or reverse the action of council and substitute its finding on such ordi- nance. Unless within twenty (20) days after the mailing of such certified copy of the ordinance such street railway com- § 3812-2 THE OHIO MUNICIPAL CODE. 330 pany or companies shall notify council in writing that it or they will so renew, replace, repair or reconstruct such rails, ties, roadbed and tracks in accordance with said plans and specifications, and any such modification or corrections there- of or that said company has appealed to the public utilities commission, the council may by ordinance authorize the di- rector of public service in cities, and the council in villages, to receive bids and enter into contracts for the furnishing of the necessary material and labor for such renewal, replace- ment, repair, or reconstruction of such rails, ties, roadbed and tracks, all of which work shall be done at the time that such street or other public thoroughfare is torn up for the making of such street improvement, paving or repaving, sur- facing or resurfacing. [When municipality may make improvement on the part of company.]' In the event that such street railway com- pany or companies notify council that it or they will so re- new, replace, repair or reconstruct such rails, ties, roadbed or tracks, but fail at the time of making of such street im- provement, paving or repaving, surfacing or resurfacing, to renew, replace, repair or reconstruct such rails, ties, roadbed or tracks, the council may by ordinance authorize the director of public service in cities, and the council in villages, to re- ceive bids and enter into contracts for the furnishing of the necessary material and labor for such renewal, replacement, repair or reconstruction, and said work shall be done at the time such street or other public thoroughfare is torn up for the making of such street improvement, paving or repaving, surfacing or resurfacing; and said contract or contracts shall be awarded to the iowest and best bidder. [108 v. 1148; 108 v. 215.] (1) Validity—This section and of the constitution, and invalid. 3812-3 in so far as they authorize a municipality to renew, replace, repair and reconstruct rails, ties, road beds or tracks of a street railway company with public money raised by the sale of bonds of a municipality are in - violation of sec. 6, Article VIII Cincinnati v. Harth, 101 O. 8. 344; affirming Harth v. Cinti, 31 O. C. A. 433; 13 Oh. App. 81. Validity as to paving—When an electric railway company, exercising an easement in a city street about to be repaved and being liable by law and under the terms of its franchise 331 ASSESSMENTS—IN GENERAL. § 3812-3 for the cost of paving the part oc- ting property are made payable, cupied by it, proposes that the city the city may accept such proposal pave the railway’s part along with and proceed accordingly. Such ac- the remainder of the street, agreeing tion is not violative of Section 6, to pay its proper proportion thereof, Article VIII of the Constitution of including the preliminary cost of Ohio. Newark v. Fromholtz, 102 surveys, etc., upon the same terms’ O.S. 81. as special assessments against abut- Sec. 3812-3. [Assessment of cost and expense against com- pany.] Council shall by ordinance assess the entire cost and expense of the labor and materials required for such renewal, replacement, repair or reconstruction, against such street railway company or companies, and upon its or their failure to pay such assessment in cash, or by assessment as herein- after provided, the same shall be a lien upon all of the prop- erty of such company or companies, located in said city or village. Said assessing ordinance shall provide for the pay- ment of said assessments in ten (10) equal annual install- ments with interest thereon until paid at not to exceed six (6) per cent. per annum; provided, however, the company or companies shall not be liable for the installment or install- ments of said assessments due after the expiration of the com- pany or companies’ franchise unless the use of said track or tracks is continued thereafter by said company or companies. Upon the nonpayment of such installments as the same sever- ally become due, the auditor in cities, and the clerk in villages, shall certify the same to the auditor of the county in which the municipality is situated, who shall place the same upon the tax duplicate of said county and add the amount thereof to the tax bills of said street railway company or companies and shall collect such assessments including interest in the Same manner provided by law for the collection of taxes levied against real estate. If the entire amount of the cost and expense of such renewal, replacement, repair or recon- struction, be not paid in cash at the time specified in such assessing ordinance, council may by ordinance provide for the payment of the cost and expense of such renewal, re- placement, repair or reconstruction, including interest on such installments of assessments, by the issuance of bonds? in anticipation of the collection of such assessments, which § 3812-4 THE OHIO MUNICIPAL CODE. 332 bonds shall bear interest at not to exceed six (6) per cent. per annum. [Not subject to other statutes of limitations.] The as- sessment herein provided for shall not be subject to any other statute of the state of Ohio limiting or restricting the power of levying and collecting special assessments. [108 v. 1148, 1149; 108 v. 215.] (1) Validity—This section is ynconstitutional. See note to § 3812-2, ante. Sec. 3812-4. [Lighting street, alley, dock, pier, road; spe- cial assessment for.] The council of a city upon the recom- dation of the director of public service, or the council of a village, may provide for lighting any street, alley, dock, wharf, pier, public road or place, or parts thereof, and levy- ing and collecting special assessments! therefor, by any one of the methods mentioned in section 3812, General Code of Ohio. For the purpose of carrying out the provisions of this supplementary section one resolution, ordinance or contract may be made to include one or more streets, alleys, docks, wharves, public roads or places, or parts thereof, and the proceedings by council providing for such lighting and levy- ing and collecting special assessments therefor shall be the Same as provided in this chapter for proceedings by council for the improvement of streets, except that notices of the passage of the resolution declaring the necessity for such lighting shall be given to the owners of the lots and lands to be assessed for the payment of the cost and expense of such lighting by publishing such a resolution once a week for two consecutive weeks in two newspapers of opposite polities pub- lished and of general circulation within the corporation, and no other or further notice shall be required; provided, how- ever, that in municipal corporations in which no two news- papers of opposite polities are printed, as defined in section 6255 of the General Code, notice of the passage of such reso- lution shall be given to the owners of the lots and lands to be assessed for the payment of the cost and expense of such lighting by publishing such notice in either of the following manners to be determined by council, viz.: by posting copies 333 ASSESSMENTS—IN GENERAL. § 3812-5 thereof in not less than five (5) of the most public places in the municipality, to be determined by council, for a period of not less than fifteen (15) days prior to the taking effect thereof, or by publication thereof in any newspaper printed in Ohio and of general circulation in such municipality; pro- vided further that in all municipal corporations which have adopted a charter the notice to the property owners may be published in accordance with the provisions of such charter. [109 v. 221.] . (1) Assessment for street lighting. See Op. Atty. Gen. (1923), No. 300. Sec. 3812-5.1. [Boundary street between two municipalities may be improved by agreement; assessment of cost; construc: tion; bonds for payment thereof.] Whenever the boundary line between two municipalities is located within or along the side lines of a street, avenue or other public highway, such municipalities may enter into an agreement for the im- provement of such street, avenue or other highway in such manner as the respective councils of said municipalities may determine. Said agreement may provide for any one or more of the improvements specified in General Code, section 3812, and the cost and expense thereof may be assessed upon the property specially benefited thereby, in the manner pro- vided in said General Code, section 3812, and to the same extent and subject to the same limitations as are provided in this chapter for the levying and collection of special assess- ments for street improvements. By said agreement, the cost of the entire improvement shall be apportioned be- tween the two municipalities, as their respective councils may agree, and the council of each municipality shall de- termine whether or not any portion of the cost to be paid by it shall be specially assessed or paid out of the general street improvement funds of the municipality. . Said agree- ment shall also designate one of the municipalities to take exclusive charge of the details of the construction of the improvement, including advertising for bids and awarding the contract, which contract may be entered into by such municipality when the necessary funds have been provided therefor, and the amount to be paid by the other munici- pality shall have been paid to the treasurer of the munici- § 3812-5 THE OHIO MUNICIPAL CODE. 334 pality authorized to supervise such construction. Bonds may be issued and sold in anticipation of the collection of ' deferred installments of assessments by the municipality levying the same, and bonds may likewise be issued and sold by either municipality for the purpose of paying its share of such improvement under the terms, conditions, limita- tions and in the manner provided by law. [110 v. 42.] (1) Note that the legislature enacted two supplementary sections, each bearing this number. Sec. 3812-5, [Establishment of districts; method of assess- ment.] Whenever any municipality appropriates or pur- chases property for a public improvement, the council of the municipality may provide funds in part by assessments upon the lots and lands benefited by such improvement when a district established by ordinance of council, to pay any part of the entire cost and expense connected with such public improvement, and may include as one of the items of such total cost and expense, not more than fifty (50) | per centum of the cost of appropriating private property for such public improvement. Such assessments may be levied by any of the following methods: First. By a percentage of the tax value of the property assessed ; Second. In proportion to the benefits which may result from the improvement; or, Third. By the foot front of the property bounding and abutting any street, alley, public road or place, or part thereof, within such district. [110 v. 255.] (1) Note that the legislature enacted two supplementary sections, each bearing this number. Sec. 3812-6. [Limitation of assessment; May issue bonds.] Such special assessments shall not be in excess of the special benefits conferred upon such lots and lands by such public improvement, and the proceedings of council pro- viding for levying and collecting such special assessments shall be the same as are provided in title 12, division 3, chapter 5, of the General Code of Ohio, and the amend- ments and supplements thereto, providing for the improve- ment of streets, except that in setting forth specifically the lots and lands to be assessed it shall be sufficient to describe 335 ASSESSMENTS—IN GENERAL. § 3813 them as all the lots and lands bounding and abutting the respective streets, alleys, public roads, or places, or parts thereof, within the district established by council, and in describing those which do not so abut, it shall be sufficient to describe the lots by their appropriate lot numbers, and the lands by metes and bounds. The council of the municipality may issue and sell bonds as other bonds are issued and sold, to pay the municipality’s part of the cost-and expense of any such improvement, and may issue and sell bonds in anticipation of the levying or collection of such special assessments, in accordance with the provisions of law pertaining to the issuance and sale of bonds now in force, or as they may be hereafter amended or supplemented. [110 v. 255.] Sec. 3813. [When council may fix value of lands not as- sessed for taxation.]* In making special assessments by per- centage of the tax value or by the foot front on lots or lands not sub-divided in lots, when such lots or lands are not as- sessed for taxation, the council shall fix, for the purpose of such assessment, the value of such lots as they stand and of such lands at what council considers a fair average depth of lots in the neighborhood, so that it will be a fair average of the assessed value of other lots in the neighborhood. In making such assessments in either of such ways on land not subdivided into lots but which are assessed for taxation, council shall fix the value and depth in the same manner,” but the above rule shall not apply in making a special assessment according to benefits.? [97 v. 296, § 50a.] (1) Old sections.—See old § 2269 R. S. (repealed) and lots. Gibson v. Cincinnati, 27 B. 80, Situation of property at time of §§ 2264a and 2271 R. S, (repealed). (2) Land in bulk, how deter- mined.—To determine whether land is in bulk or in city lots re- gard must be had not only to re- corded plat, but size of lots gen- erally. Bailey v. Zanesville, 20 C. C. 236; Springer v. Avondale, 35 O. S. 620. A tract may be a lot and not land in bulk, though not platted, if not larger than fair average of improvement ordinance governs, in determining whether land is in bulk or not. Shiner v. Norwood, 17 C. C. 631. Purpose of provisions.—A pro- vision such as this is intended to equalize the expense upon all land benefited. Where land is in bulk, council must determine a fair aver- age depth for such land for the pur- pose of the assessment and fix a value for such part as is assessed, § 3814 so that it can be seen whether the limitation on assessments has been exceeded and on what part of the land the lien of assessment attaches. Bailey v. Zanesville, 20 C. C. 236; Parmelee v. Youngstown, 43 O, S. 162; Findlay v, Frey, 51 O. S. 390; Cincinnati v. Oliver, 31 O. S. 371; Griswold v. Pelton, 34 O. S. 482. Assessment on acreage.—Where an acreage tract has been im- proved by only one dwelling but is susceptible of subdivision to better advantage with lots front- ing in part upon a street in which a sewer has been constructed, which is available for the sewerage of the lots apbut- ting it, but not for’ the dwelling now on said land, the assessment for such sewer will not be held invalid but the lien Sec. 3814. [Resolution of necessity.]* THE OHIO MUNICIPAL CODE. 336 for same will be restricted to so much of the land as abuts upon such sewer to the usual depths of lots in the neighborhood. (Section 3813, General Code.) Burckhardt v. Cincinnati, 25 C. C. (N. 8.) 542. Injunction will lie to restrain collection of assessment on land in bulk where council has not fixed fair average depth. But court may fix amount property chargeable. Gris- wold v. Pelton, 34 O. S. 482. (8) Where assessments ac- cording to benefits.—It is within the power of council without any statutory provision on the subject to limit the assessment to the fair average depth of lots, even where the assessment is by benefits. Koh- ler Brick Co. v. Toledo, 29 C. C. 6993510, C.1C.. CC NEAS ai pubo a: When it is deemed necessary by a municipality to make a public improvement to be paid for in whole or in part by special assessments,” council shall declare the necessity thereof by resolution, three-fourths of the members elected thereto concurring, except as other- wise herein provided.* Such resolution shall be published as other resolutions, but shall take effect upon its first publica- tion.* (1) Old sections.—See old §§ 2304, 2264 and 2264a R. S. re- pealed. (2) Procedure limited.—It seems that the procedure here re- quired is limited to the making of public improvements for which spe- cial assessments are to be levied. Other improvements are required to be made in the manner provided in the sections of the Code governing the appropriation of private prop- erty and the duties with respect to [97 v. 121, § 51; 96 v. 39, §51.] contracts of the council, director of public service,- director of public safety and trustees of publie affairs. See, in accord, Kast End B. & T. Co. v. Cleveland, 1 N. P, (N. S.) 493 (aff'd, Cir. Ct.). Compare old § 2304 R. S., re- pealed, which provided that “when it is deemed necessary by a city or village to make a public improve- ment” council shall declare the ne- cessity, give notice to the owners of abutting property, ete. Ques- 337 tions as to what public improve- ments required the procedure pro- vided in § 2304 arose in Krum- berg v. Cincinnati, 29 O. S. 60; Caldwell v. Carthage, 49 O. S. 334; Tyler v. Columbus, 6 C. C, 224; Becher v. McCloud, 4 C. C. 305; Nitzel v. St. Bernard, 3 N. P. 317; Fergus v. Columbus, 6 N. P. 82, 91; Garvin v. Columbus, 5 N. P. 236, . 239; Rademacher v. Cincinnati, 21 B. 244; Longworth y, Cincinnati, 23 B. 100; Strauss v. Cincinnati, 24 B. 422. Lighting a street not an ‘‘im- provement’’. Op. Atty. Gen. (1918), p. 1462. (3) Resolution of necessity.— Due passage jurisdictional.-—Resolu- tion declaring necessity and its due publication were held to be condi- tions precedent, under former stat- utes, to the power of council to pass the improvement ordinance. Welker v. Potter. 18 O. S. 85; Stephan v. Daniels, 27 O. S. 527; Smith v. Toledo, 24 O. S, 126; Cincinnati v. Corry, 2 B. 337. But see Upington v. Oviatt, 24 O. S. 232. Object of resolution—Though the legislature, in providing for the adoption and publication of prelimi- nary resolution, had in view, under former § 2304 R. S. the fixing of time within which those claiming damages must make their claims, yet this was not the only object of the requirements. They were cal- culated to prevent a hasty and in- considerate exercise of power. Smith v. Toledo, 24 O. S. 126, 132, Passage of resolution—Such a resolution would be a resolution of a general or permanent nature within the meaning of § 4224. Camp-. bell v. Cincinnati, 49 O. S. 463; Thatcher v. Toledo, 19 C. C. 311, ASSESSMENTS—IN GENERAL. § 3814 315; but see Upington v. Oviatt, 24 O. S. 232. Resolution, what to contain.— Resolution sufficiently establishes grade and orders improvement if it refers to plans and specifications on file in office of engineer, though that office is located outside of village. Wood v. Pleasant Ridge, 12 C. C. 177. Where resolution is broad enough to cover improvement, including re- taining wall, it is not necessary that another resolution declaring neces- sity for retaining wall be passed to authorize separate contract for such wall found necessary after work partly done and paid for by assess- ment. Cincinnati v. Shaw, 3 B. 556. Separate item not specified in reso- lution may nevertheless be author- ized. Dixon v. Cincinnati, 11 C. C. 629. Resolution may except an intermediate part of the street to be improved. Wilder v. Cincinnati, 26 O, S. 284. It may order improve- ment of several streets or parts of streets if it is but one improvement. Irwin v. Greenville, 1 Dayton, 140. Construction.—Resolution to im- prove a street one side only of which is within city limits will be construed to mean the improvement of that part only which is within the city. Scully v. Cincinnati, 1 Cc. S. C. R. 183, 187. As to construction of resolution or ordinance not clearly defining termini of improvement, see Ride- nour v. Saffin, 1 Handy, 464. What defects in resolution cured by curative statute, see notes un- der § 3901, post. (4) Publication.—How made.— See note to §§ 4228, 4229, Effect of omission to publish.— Publication of the preliminary res- § 3814 olution as required by former stat- utes was held to be mandatory as between the municipality and the owners of property assessed. Up- ington v. Oviatt, 24 O. S. 232. And omission to publish the pre- THE OHIO MUNICIPAL CODE. 338 which is not cured by a curative act relating to technical irregularities, Welker v. Potter, 18 O. S. 85. But see Upington v. Oviatt, 24 0. S. 232, and see Bolton v, Cleveland, 35 O. S. 319. liminary resolution is a fatal defect ORDER OF PROCEDURE IN STREET IMPROVEMENTS FOR WHICH ASSESSMENTS ARE LEVIED. 1. Resolution directing engineer to prepare and file plans, specifications and estimates of cost. These must be filed with the director of public service in cities or the clerk in villages. While this resolution is not re- quired by law, it is advisable in view of § 3816 which presupposes that such plans, ete., have been prepared. 2. Resolution of necessity (three-fourths of council concurring), and determining grade, approving plans, specifications and estimates, and fixing the method of assessment, the mode of payment, and whether or not bonds shall be issued in anticipation of collection. ($§ 3814, 3815.) This resolution may be passed at one meeting only by suspension of rule provided in § 4224. It must be published. ($§ 3814, 4227, 4228.) 3. Notice to the owners of property to be assessed, served by the clerk of council or an assistant, and on non-residents by publication. (§ 3818.) 4. Claims for damages, to be filed by the owners of abutting property. (§ 3823.) 5. Ordinance to issue bonds for municipality's portion of cost. Such bonds may be issued, pursuant to § 3939, for one or more contemplated improvements, even before any proceedings for a specific improvement are begun. For form of ordinance, see § 3939. A different order applies in case of sidewalk improvements; bonds for the municipality’s portion of sidewalks are not comprehended by § 3939, but should be issued under § 2821. They may not be issued under the latter section until the improve- ment ordinance has been passed (Heffner v. Toledo, 75 O. S. 413, 5th Syl.). 6. Ordinance to proceed with the improvement (three-fourths of council concurring; see § 3835), determining whether claims for damages shall be judicially inquired into before commencing or after the completion of the improvement; directing the solicitor or mayor to institute pro- ceedings to inquire into such claims; determining the mode of payment for the improvement; setting forth specifically the lots and lands to be assessed; describing the general nature of the improvement and the character of materials to be used; giving a reference to the improvement resolution theretofore passed, with the date of its passage and the declara- tion of intention to proceed with the improvement in accordance with said resolution and plans. If the estimated cost of the improvement is more than five hundred dollars, this ordinance should, in cities, authorize and direct the director of public service to make a contract with the low- est and best bidder, after advertisement according to law; and in vil- lages, the ordinance should direct the clerk to advertise for bids, and the contract should be awarded by council to the lowest and best bidder, and executed by the mayor and clerk. If the estimated cost is less than five hundred dollars, the contract may be made by the director of public 339 ASSESSMENTS—IN GENERAL. § 3815 service in cities, and by council in villages, without advertisement. (§§ 3824, 3825, 3827, 3833, 4328, 4221.) This ordinance may also be passed at one meeting by suspending the rule, and should be published. (See §§ 4224 and 4227.) 7. Ordinance providing for issue of notes in anticipation of levy of assess- ments and of issuance of bonds, (§ 8914). No publication required, (§ 3914). Many municipalities prefer to levy the assessment before making the con- tract or beginning the improvement. In such case there will be no oceaslon to issue notes and the order of proceedure here given should be changed accordingly. | 8. Application for a jury to inquire into claims for damages. (§ 3827.) (If, in the ordinance to proceed, it has been determined to inquire into the damages after the completion of the improvement, the inquiry should follow such completion.) ; 9. Advertisement for bids. (See §§ 3833, 4328, 4329, 4221, 4222 and 4223.) 10. Award and execution of contract. (§$§ 3838, 4328, 43830, 4334, 4221, 4222 and 4223.) 11. Resolution directing clerk or engineer to make and file tentative assess- ment, where assessment is by foot front or by percentage of tax value, and publication of notice thereof for three weeks consecutively as re- quired by § 3895. Or, 12. Appointment of three disinterested freeholders, and equalizing of assessments, where the assessment is in proportion to benefits. See “Order of procedure for assessments by benefits,’’ under § 3847. 13. Notice of tentative or estimated assessment to be published three ‘weeks in a newspaper of general circulation in the corporation, (§ 3895), 14. Assessing Ordinance. This ordinance requires only a majority vote of council, except where based upon the report of an equalizing board, in which case it requires a two-thirds vote. ($3849.) There is no requirement that such ordinance should be published, though its pub- lication would be advisable. An assessing ordinance might, as to method of passage, be regarded as the levying of a tax and should be read on three different days unless three-fourths of council suspend the rule. (§ 4224.) 15. Certificate of fiscal officer, (§§ 2295-7, 2295-9, 2295-10). See form of certificate under § 3825. 16. Ordinance to issue bonds in anticipation of collection of assessments. (§ 3914.) No publication of this ordinance required. (§ 3914.) For form of ordinance see § 3825. Form of bonds, see § 3939. Sec. 3815. [Determination of nature of improvement; method of assessment and payment.]' Such resolution shall determine the general nature of the improvement, what shall be the grade of the street, alley, or other public place to be improved, the grade or elevation of the curbs, and shall ap- prove the plans, specifications, estimates and profiles for the proposed improvement. In such resolution council shall also determine the method of the assessment, the mode of pay- § 3815 THE OHIO MUNICIPAL CGDE. 240 ment and whether or not bonds shall be issued in anticipa- tion of the collection thereof, and may determine whether or not bonds shall be issued to pay the corporation’s part of such improvement, and if such determination be included in the resolution, then the issuance or authorization of issuance of both the assessment bonds and the bonds for the corpora- tion’s portion may be included in a single ordinance and such ordinance need not be published. Assessments for any im- provement may be payable in one to twenty installments at such time as council prescribes; but nothing herein contained shall be construed to authorize maturities of bonds extend- ing beyond the limitations specified in section 2295-9 of the General Code.’ 96 v. 39, § 51.]' (1) Old sections.—See old §§ 2304, 2264, and 2264a R. S. (re- pealed). (2) A contractor is not bound to perform contract at original bid where council changes grade after bid is submitted. Op. Atty. Gen. (1916), p. 514. (3) Method of assessment de- scribed in resolution or ordinance to improve can not be departed from and a different method adopt- ed when assessment is made. Dick vs ‘Toledo; “ll Ce Cl s40r" eAs = to method of assessment which might be prescribed under former statutes, see Kelley v. Cleveland, 34 O. S%. 468; Irwin v. Greenville, 1 Dayton, 140; Dick v, Toledo, 11 C. C. 349. Amount of assessment.—It is not necessary that council determine, in advance of the assessing ordi- nance, the proportion of the cost and. expense of the improvement to be assessed upon the property abut- ting; and the fact that council has done so, in the preliminary reso- lutions and ordinances, does not bar it from designating a different pro- portion in the assessing ordinance, provided it is within the limitations [110 v. 456, 459; 107 v. 151; 97 v. 121, §51; fixed by statute. Lippert v. Toledo, 29 C. OC. 345; 9 C. C. (N. S.) 455 (aff’d, 76 O. S. 563); Acklin v. Par- ker, 29 C. C. 625; 10 C. C, (N. S.) 243 (aff'd, 78 O. S. 413). As to determination under for- mer statutes, see Knorr v. Cincin- nati, 21 B. 297. Right to pay cash.—Where the. assessing ordinance fails to provide the right to pay all assessments in cash, the ordinance is not void, but the owner may still exercise the right. Dodsworth v. Cincinnati, 18 C. C. 288, (2) Limitation of assessments.— In determining the number of in- stallments for any assessment, § 2295-9 (found under ‘‘ Miscellaneous Statutes’ in Part IT) should be carefully examined with respect to the maximum maturities allowed for bonds for various improvements. This section is limited by § 2295-12, prescribing a ten-year period of bond issue. See Op. Atty. Gen. (1922), p. 338. Limitation on number of install- ments of assessment. See Op. Atty. Gen. (1922), p. 338. — 341 ASSESSMENTS—IN GENERAL. § 3815 FORM OF RESOLUTION DECLARING NECESSITY FOR IMPROVEMENT. Resolution No........ Declaring it necessary to improve......... Atreect, THOM 2h. ciate to Bree sf e's by paving (or constructing sewer or making other improvement). Be it resolved by the council of the city [or village] of................ ; State of Ohio, three-fourths of all members elected thereto concurring: Sec. 1. That it is necessary to improve......... street, from. ..3:.. «.. a , in the following manner (here describe general nature of the im>rovement, material to be used, etc.) ; Sec. 2. That the grade of said street as improved shall be........... (“the existing grade,” or “the grade established by ordinance passed eee »’ or specifically describe the grade to be established as shown by the engineer’s plans); and that the grade of the curbs shall be AES (here insert grade of curbs in relation to that of street). Sec. 3. That the plans, specifications, estimates and profiles of the proposed improvement heretofore prepared by the engineer [or street commissioner] and now on file in the office of the director of public service [or in villages, of the clerk], be and the same are hereby approved, Sec. 4. That the whole cost of said improvement, less one........ thereof (not less than one-fiftieth) and the cost of intersections shall be assessed by a percentage of the tax value thereof [or, ‘‘in propor- tion to the benefits which may result from the improvement,’’ or, _ “by the foot front’’] upon the following described lots and lands, to-wit: all lots and lands bounding and abutting upon the proposed improvement (or, here describe specifically benefited _ territory to be assessed) which said lots and lands are hereby determined to be specially benefited by said improvement; and the cost of said improvement shall include the expense of the preliminary and _ Other surveys, and of printing and publishing the notices, resolutions and ordinances required, and the serving of said notices, the cost of construc- tion, together with interest on bonds issued in anticipation of the collection of deferred assessments, and all other necessary expenditures. Sec. 5. That the assessments so to be levied shall be paid in *+-..... (not more than ten) annual installments, with interest on deferred payments at the same rate as shall be borne by the bonds to be issued in anticipation of the collection thereof; provided that the Owner of any property assessed may, at his option, pay such assessment m cash within thirty days after the passage of the assessing ordinance. Sec. 6. That bonds of the city: [or village! Gf; eo sos! shall be Sec. 7. That the remainder of the entire cost of said improvement, not Specially assessed, including the cost of intersections, together with the Cost of any real estate or interest therein, purchased or appropriated, and the costs and expenses of any appropriation proceeding therefor, and § 3816 THE OHIO MUNICIPAL CODE. 342 the damages awarded any owner of adjoining lands and interest thereon, and the costs and expenses of any such award, shall be paid out of........ fund [or “by the issuance of bonds in the manner provided by law”]. Sec. 8. This resolution shall take effect and be in force from and after the earliest period allowed by law. 2° 6) MOP Ah e Sel eife; Seye \le. Cm ew Keven afd, a/alsce Te teie pr a eo O46 'e) Sele 0 6, es inl 6 @ 6) S(de a Sielal oe) meus shards President of Council. NoTE.—§ 2295-9 G.C. limits the maturity of bonds for street improve- ments to 10 years, accordingly, where bonds are to be issued in antici- pation of the collection, the assessments should be limited to 10 annual installments. If the installments are semi-annual, they may be 20 in number. Sec. 3816. [Plans, specifications, estimates and profiles to be prepared and filed.]* At the time of the passage of such resolution, council shall have on file in the office of the director of public service in cities, and the clerk in villages, plans, specifications, estimates and profiles of the proposed improve- ment, showing the proposed grade of the street and improve- ment after completion, with reference to the property abutting thereon, which plans, specifications, estimates and profiles shall be open to the inspection of all persons interested.? v. 121, § 51; 96 v. 39, §51.] (1) Old sections.—See old §§ 2304, 2264, and 2264a R. S. re- pealed. (2) Omission of plans.—Effect of curative provisions of § 3901, see Becher v. McCloud, 4 ©. C. 305. It is essential to the validity of the proceedings ordering an improvement authorized by § 3812 that plans, specifications, esti- mates and profiles of the proposed improvement shall be on file in the office of the director of public service in cities, or the clerk in villages, at the time of the pas- sage of resolution declaring such [97 improvement necessary. Kasch v. Akron, 100 O. S., 229. , Estimate; contract in excess of. —A contract made by a munici- pality with the lowest and best bidder for a street improvement in full compliance with law as to all conditions precedent, with no averment of fraud, bad faith, ir- regularity, unreasonableness or excessiveness, is valid notwith- standing the amount of said con- tract exceeds the city engineer’s estimate. McDonald vy. Horn- berger, 21 N. P. (N. 8S.) 209. ” =~ . 343 ASSESSMENTS—IN GENERAL. § 3817 Sec. 3817. [Bonds and interest thereon.]' When bonds are issued in anticipation of the collection of the assessment, the interest thereon shall be treated as part of the cost of the im- provement for which assessment may be made. If such as- sessment or any installment thereof is not paid when due, it shall bear interest until the payment thereof at the same rate as the bonds issued in anticipation of the collection thereof, and the county auditor shall annually place upon the tax du- plicate the penalty and interest as therein provided.? [97 v. 121, § 51; 96 v. 39, § 51.] (1) Old sections.—See old §§ 2304, 2264 and 2264a R. S. re- pealed. (2) Collection of installments. —Such installments are to be placed on the tax duplicate and collected as other taxes.. Makley v. Whitmore, 61 O. S. 587. By § 3892 it is made the duty of the clerk of council to certify all installments of assessments, whether past due or not, to the county audi- tor annually (where bonds are issued in anticipation of their collection), and such assessments are then col- lected as other taxes, See note 2 under § 3898. Assessment on tax duplicate prima facie valid and the burden is on the property owner to show invalidity. Murphy v. Sims, 13 Dee. 62. Interest on Installments— Where assessment for street im- provement is made payable in an- nual installments, interest runs from the date of passage of or- dinance. Leslie v. Norwood, 22 NEON S63. Sec. 3818. [Notice, how served.]* A notice? of the passage of such resolution shall be served by the clerk of council, or an assistant, upon the owner® of each piece of property to be assessed,* in the manner provided by law for the service of Summons in civil actions. If any such owners or persons are not residents of the county, or if it appears by the return in any case of the notice, that such owner can not be found, the notice shall be published at least twice in a newspaper of general circulation within the corporation. Whether by ser- vice or publication, such notice shall be completed at least twenty days before the improvement is made or the assess- ment levied, and the return of the officer or person serving the notice, or a certified copy of the return shall be prima facie evidence of the service of the notice as herein required.® [97 Vv. 122, §52; 96 v. 40, § 52.] (1) Old section, 2304 R. S. re- (2) pealed. Strict construction.—Re- quirements as to notice must be § 3818 strictly pursued. Cincinnati v. Sherike, 47 O. S. 217. What constitutes See Op. Atty. Gen. 775. Must be written.—Notice that is required is a notice in writing. Cincinnati v. Sherike, 47 O, S. 217. Sufficiency.—Notice that a reso- lution was adopted declaring it. nec- essary to open and improve a cer- tain street between certain points by grading, ete. (specifying the manner of improvement) according to plans on file stating that the ex- pense was to be charged per front foot upon lands abutting was held to be sufficient under former § 2304 R.S. Canton v. Wagner, 54 O.S. 329. Notice that resolution declaring it necessary to improve a_ certain street between certain points and stating the manner of assessing cost was held not sufficient to in- form the property owner that the city contemplated appropriating an easement for sloping fill. Fenner v. Cincinnati, 4 N. P. 182. A resolution to improve by change of grade should set forth specifically extent and character of the grade so that owners may know the effect upon their land. See Cincinnati v. Corry, 23 B, 359. Notice of an improvement in- volving a material change of grade, in order to bar an action by a property owner for damages, shouid definitely state that a change of grade is contemplated as a part of such improvement. Dayton v. Haines, 12 Oh. App. 439. The twenty days required before levying assessments for improve- ments by a village council does not prevent the adoption of the pre- such notice. (1918), p. THE OHIO MUNICIPAL CODE. 344 liminary ordinances before the ex- _ piration of the twenty-day period, provided no contracts are made or assessments actually levied until after the lapse of the twenty day period. Wagner v. Leipsic, 24 N. P. (N. 8S.) 177; affirmed Leipsic v. Wagner, 105 O. S. 466. A village council may pass its preliminary ordinances providing for an improvement, and serve the required notices without waiting thirty days for a referendum petition to be filed, and if such petition be not filed within the thirty days the ordinances are valid. Jb. Service of notice.—Under for- mer § 2304 R. S. it was held that the service of the notice must be per- sonal. MeGee v. Avondale, 7 C. C. 246, but if notice was left at the residence or mailed and was duly received it would be sufficient. McGee v. Avondale, 7 C. CO. 246; Green v. Cincinnati, 7 C. C. 233; see also, Roberts v. St. Bernard, 29 C. C. 725. Notice to non-residents, how given. Op. Atty. Gen. (1916), p. 1222. Compensation of Clerk. See Op. Atty. Gen. (1919), p. 1147. Effect of want of notice.—The service of notice to resident land owners, required by old § 2304 R. S. was held to be a condition precedent to the exercise of the authority to pass a valid ordinance ordering the improvement so far as such owners are concerned or to make an assess- ment on their property to pay for the same, and the failure to give notice is not such an irregularity as would be cured by a curative statute. Joyce v. Barron, 67 O. S. 264, 268; but see further, Toledo v. McMahon, 9. C. C. 194; Kirby v. Winton Place, 345 7. N. P. 169; Schmidt v. Elmwood Place, 15 C, C. 351; Knecht v. Cin- cinnati, 18 C. C. 875; and as to con- struction of requirement under va- rious former statutory provisions, see Bolton y. Cleveland, 35 O. S. 319; Scovill v. Cleveland, 1 O. S. 126, Chittenden v. Columbus, 1 N, P. (N.S.) 420; 14 Dec. 333. An owner who has not received notice will not forfeit his right to recover damages caused by the im- provement because of failure to file claim. Fenner v. Cincinnati, 4 N. P. 182. (3) Owner would mean any one having an interest in the real es- tate, and includes mortgages and owners of minor interests therein. Savings Co, v. Cincinnati, 12 Dee. 218. See also Allison v. McCune, 15 O. 726; Smith v. Altick, 24 O. S. 369, 377; Carpenter v. Canal Co., 35 O. 8. 3807, 317; Harrison v. Sabina, 1 C. C. 49. Executor to manage property, pay taxes, etc., and sell at end of fifteen years, is an “owner” on whom no- tice should be served, Roberts v. St. Bernard, 29 C. C. 725; 8 C. C. (N. 8.) 422. Service upon owner of life estate on day property sold for taxes and before sale confirmed, is upon proper person as required by this section, which should be read in connection with § 3894. Johnson v. Cincinnati, 30 C. C. 644; 11 C. C. (N. S.) 344. Service on equitable owner not sufficient; must be made on legal owner. Hopple v. Cincinnati, 17 Dee. 1938. Tenant for years is not an “owner” within meaning of statute, and not entitled to notice of resolu- tion to improve. Forrester Plaster ASSESSMENTS—-IN GENERAL. § 3818 Co. v. Cleveland, 31 C. C. 231; 12 GG. (N-8;) 123; Service on lessee for ten years with privilege of purchase and in whose name property is assessed for taxation, held sufficient. Clemmer v. Cincinnati, 28 C. C. 89; 7 C. C. (NY Bc ols Service of notice on person in whose name property is assessed on tax duplicate, if not real owner, held not sufficient. Savings Co. v. Cincinnati, 12 Dec. 218. ‘State need not be served where property is forfeited to state for taxes. Ib, (4) To whom notice required. —No notice seems required to be served except upon the owners of property to be assessed. Old § 2304 R. S., repealed, required notice to all owners of abutting property. The chief purpose of this notice was held to be the giving of an opportunity to file claims for damages. Savings Co. v. Cincinnati, 12 Dec. 218. The pur- pose of the notice now required seems to be two-fold, viz., (1) To give the owners of property to be as- sessed an opportunity to be heard against the improvement or the assessment therefor, and (2) To give such owners an opportunity to file any claims there may be for dam- ages. It follows that the owner of property not to be assessed and to whom no notice of a proposed im- provement is given, need not file a claim under § 3823 in order to re- cover damages sustained, but is left to his remedy against the munieé- pality independent of such section. The property to be assessed, however, will usually include all that may be damaged by the improvement. ‘See East End B. & T, Co. v. Cleveland, 1 N. P. (N.°S.) 498; Anderson v. § 3819 THE OHIO MUNICIPAL CODE. 346 Columbus, 1 N. P. (N. S.) 541; 14 _ return of the officer serving the no- Dec. 180. tice was held prima facie evidence Notice not waived by petitioning of service under old § 2315 R. S., for improvement, unless expressly repealed, and the burden of proof stated in petition. Joyce v. Barron, was said to be upon the property 67 O. S, 264. owner who denied the _ service. (5) Prima facie evidence.—The Strauss v. City, 23 B. 359. FORM OF NOTICE TO OWNERS OF PROPERTY TO BE ASSESSED. You are hereby notified that on the....... dayiods sistnde SG « LQ Ag uthe council of the city [or village] of........... , State of Ohio, duly passed a resolution of which the following is a copy: (Set out copy of resolution). By order of the council of the city [or village] of................ 6,'0 = 8 B80 (6:9 SL6 0.80 aoase % of ek 6 a eee (If the assessment is to be by the front foot this notice should go to all abutting owners. If by percentage of tax value or according to benefits it should go to all whose property may be included in the subsequent assess- ing ordinance.) FORM OF RETURN BY OFFICER SERVING NOTICE. Received the above notice on the..... day ‘of-9% aa. ne » 205... ane served the same by delivering a true copy thereof personally, (or thet any other method in accordance with requirements of law for service of summons in civil actions) upon the following persons on the dates below specified : Name. Date of service. Remarks, Clerk [or assistant] of council of the City Lor Village] Of: (0.729 een Sec. 3819. [Limitation of assessments.]! The council shall limit all assessments to the special benefits? conferred upon the property assessed, and in no ease shall there be levied upon any lot or parcel of land in the corporation any assessment or assessments for any or all purposes, within a period of five years, to exceed thirty-three and one-third per cent of the actual value thereof after improvement is made.? Assessments levied for the construction of main sewers*t shall not exceed the sum that in the opinion of council® would be required to construct an ordinary street sewer or drain of sufficient capac- ity to drain or sewer the lots or lands to be assessed for such --_. 347 ASSESSMENTS—IN GENERAL. § 3819 improvement, nor shall any lots or lands be assessed that do not need local drainage or which are provided therewith.® [97 v. 126, § 53; 96 v. 40, § 53.] (1) Old sections.—Old § 2264, R. S. (repealed). See also old § 2283 R. 8S. (repealed). For old section limiting assessments to per- centage of tax valuation, see § 2270 R. 8. (repealed). Former statutes limiting assessments to percentage of actual value were §§ 2271 and 2264a R. S. (repealed). Compare also § 2380 R. S., re- pealed, relating to limitation of sewer assessments, (2) Limited to special bene= fits.—Even without any statute ex- pressly limiting assessments to the special benefits conferred, the courts have reached the conclusion that they must be so limited in order to be constitutional. In Walsh v. Barron, 61 O. 8. 15, the court says that “it is a fundamental principle underlying special assessments that the property is specially benefited by the improvement beyond the bene- fit to the public and a ratable as- sessment to the extent of such bene- fit is proper and constitutional, but in no case can it exceed the benefits.” See also Schroder v. Overman, 61 O. S. 1; Dayton v. Bauman, 66 O. S. 379; Walsh v. Sims, 65 O. S. 211, Benefits from the improvement can not be estimated on basis that before improvement lots had become depre- ciated in value because municipality had improperly allowed street to be- - come a public dump. Kummer vy. Cincinnati, 27 C. C. 683; 6 C. C. (N.S.) 559. Courts will not enjoin an assess- ment claimed to be in excess of spe- cial benefits where excess is because of depreciation in value since im- provement. Murphy v. Sims, 13 Dee. 62; Borger v. Columbus, 27 C. C. 812; 6 0. C. (N.S.) 401. An assessment merely showing that it is placed on “benefited prop- erty” will not be conclusively pre- sumed to be limited to special bene- fits. Chamberlain v. Cleveland, 34 QO) 8...551, Where the assessment is according to benefits the whole amount of the benefit must be apportioned amongst the lots in proportion to the benefit of each. Ib. But it is not necessary that the total excess of benefits be first as- certained before total assessment is distributed among the various lots. It is sufficient that the assessment of each lot does not exceed the benefit to that lot and that it bears only its just proportion of total assessment. Blair v. Cary, 24 C. C. 560; 2 C. C. (N. S.) 25; Ayers v. Toledo, 26 0, C. 767 (reversed on other grounds, 72 O. S. 651). See further, note under § 3847, post. An ordinance which levies the as- sessment upon abutting property by the front foot without further pro- vision, though it does not limit it to benefits, was held not void if in fact it could be shown that the assess- ment did not exceed the special bene- fits conferred. Queen City Foundry Oo. v. Cincinnati, 8 N. P. 167; Shoe- maker v. Cincinnati, 68 O. S. 603; Schroder v. Overman, 61 O. 8S. 1; Kibler v. Norwalk, 4 N. P. (N. S.) 641; Cormany v. Cincinnati, 10 Oh VA pies sec 0NOr il Aye 121: § 3819 and see Norwood v. Baker, 172 U. S. 267, as interpreted in French v. Barber Asphalt Co., 181 U. S. 324, Benefits, how determined.— Potential as well as present use of property is to be taken into consider- ation in making assessments. Pren- tice v. Toledo, 30 C. C. 568; 11 C. C. (N. 8.) 299. Increase in market value is not the only indication that lot is bene- fited; question is whether there is any potential benefit derived from the improvement. McMaken v. Hayes, 29 ©. C, 535; 10 :G; C: (N. 8S.) 38, (aff'd, 78 O. S. 412). A special assessment will not be enjoined on the ground that the benefits are not equal to the assessment unless it is clearly and convincingly shown, nor will the question of market value before and after the improvement alone be considered. Ice Co. v. UCin- cinnati, et al., 28 O. C. A. 511; 6 Oh. App. 109. Increased light and air resulting from opening of street, cannot be considered in determining the bene- fits from a subsequent surface im- provement of the street. Lanfersiek v. Cincinnati, 28 C, C. 822; 8 C, C. (N. S.) 472. Where’ benefits exceeded; power of court.—Where the as- sessment has exceeded the benefits, the court, in a suit to collect the as- sessment or a suit to enjoin the col- lection, may determine what amount may properly be assessed and enjoin collection of the balance only. . Walsh y. Sims, 65 O. S. 211; Ben- ham v. Cincinnati, 26 C. C. 17. Where, however, the proper munic- ipal authorities have determined that the assessment does not exceed the benefits, such finding and assess- THE OHIO MUNICIPAL CODE. 348 ment are prima facie correct, and the court should not interfere to dis- turb the assessment, unless so man- ifestly unjust as to be tantamount to fraud on the part of the authorities, Price v. Toledo, 25 C.,C. 617; 4 Cc. C. (N. S.) 57; Benham vy. Cin- cinnati, 26 C. C. 17; see also Cham- berlain v. Cleveland, 34 O. S. 551; Mechlem v. Cincinnati, 28 C, C. 216; 7 C. C. (N. S.) 212; MeMaken*v. Hayes, 29 CO. C. 535 (aff’d, 78 O. S. 412); King v. Dayton, 30 C. C. 480; 10 C..C, (N. 8.) 622; Kibler v.- Newark, 4 N. P. (N. S.) 641. The burden of proof is on the plaintitt to show that assessment exceeds benefits. Yost v. Railway Co., 24 GC... Cs.) 9 16992, Coo Ge- (Ne Bye bes Prentice v. Toledo, 30 C. C. 568; 11 Oo Cs (Ne See. The principle that in error. pro- ceedings when error is shown, it is presumed to be prejudicial, does not apply to irregularities in apportion- ing improvement assessments; such cases are governed by the principle of liberal construction provided for in § 3911, post. Ridenour v, Biddle, 30 C: C. 237; 10 C. C. (N. S.) 438. An informality in an improve- ment assessment is not sufficient grounds for setting aside the whole assessment unless it is shown that prejudice has resulted to the plaint- iff by reason of such informality. Ib. Waiver of limitation.—The lim- itation that assessments must not exceed benefits may be waived by contract by persons petitioning for the improvement. Thornton vy. Cin- cinnati, 26 C. C. 33; 4 C, C. (N. S.) 31; Winchell y, Dennison, 27 O. C. A. 284; 5 Oh. App. 103. For matters relating to estoppel to contest assessment as exceeding benefits, because of petitioning for ee ee a —- = =: tle ae i ie 1 eas - “' & 349 the improvement, see notes under § 3836, post. (3) Percentage of actual value.—In no event can the lot owner be assessed for more than his ratable share of the actual cost and expense of the improvement, and he can not be assessed to the full amount of such proportion if that exceed the statutory limitation. Pike v. Cummings, 36 O. S. 213. A property owner’s assessment will not be reduced because sub- sequent to the improvement part of the property was dedicated to the city for street purposes. Wilson v. Cincinnati, 5 N. P. 68. Determination of value.— Where there is a large tract of land assessed and the assessment does not exceed the percentage lim- itation of the entire tract assessed, the assessment on any part is not in- valid because as to such part if standing alone, the assessment would exceed the percentage of value allow- able. Schroder v. Overman, 61 O. ds By present law, value after im- provement is made, governs. As to rule under former laws, see Chamberlain v. Cleveland, 34 O. S. 551. Improvements included.—In as- certaining the value of lot or land for the purpose of determining the limit to which it may be assessed, the improvements are to be con- sidered with the land. Findlay v. Frey, 51 O. 8. 390. Sidewalks and sewers.—The limitations of former sections on as- sessments were held to apply to side- walks (Norwood v. Building Asso- ciation, 7 C. C. 95), and to sewers (Cincinnati vy. Connor, 55 O, S. 82). But as to sewers where a general ASSESSMENTS—IN GENERAL, . 373. § 3819 plan has been adopted, see Cincinnati v. Wewell, 16 B. 287. Improvements prior to enact- ment of statute—This section is to be construed so that assessments levied prior to its enactment are to be considered in applying the limita- tion as to assessments subsequently levied. Gray v. Toledo, 80 O. S. 445. Separate improvements.—The present section requires that no as- sessment for any or all purposes ex- ceeding thirty-three and one-third per cent. of the actual value of the property assessed, shall be levied within the period of five years. This would seem to restrict the aggre- gate amount of assessments on any one piece of property within this period, whether the improvements were on the same or a different street, and whether the improve- ments were of the same or a differ- ent character. Former sections limiting amount of assessments within a given pe- riod, were not of this broad character. § 2271 R. S. (repealed) limited the amount of assessments that could be made “for any improvement.” This was held to mean any one improve- ment, and not to apply to two sepa- rate improvements such as a street’ improvement and a__ sidewalk improvement, neither of which ex- ceeds the limitation, but which to- gether might exceed it. Hunt v. Hunter, 11 C. C. 69; Cole v. Hunter, 5 N. P. 18; Cincinnati v. Fugman, 5 N. P.- 14; Toledo vy. Bank, 7 N. P. 330; Drake v. Cincinnati, 25 C. C. § 2283 R. S. provided that the same territory “shall not be assessed for making two different streets or avenues.” This was held to apply only to improvements on different streets, and not to separate and dis- § 3819 tinct improvements on the same street. Drake v. Cincinnati, 25 C. C. 373; but the limitation applied though the improvements on the different streets were not of the same character. Pretzinger v. Sun- derland, 63 O. S. 132. These cases do not apply under the present sec- tion. The limitation, § 3819 above, mak- ing assessments for municipal im- provements in excess of 33 1-3 per cent. in five years illegal, does not apply to assessments for the cost of a particular improvement made upon petition of abutting owners therefor. But if other assessments for improvements later, added to those for the petitioned improve- ment, exceed in the five-year period the statutory limitation, the illegal- ity attaches to the later assessments, and the collection of the excess will be enjoined. First Nat. Bank v. Cincinnati, 30 ©. ©..694; 10 ©. C. (N. S.) 602. Under former statutes, see contra. Punshon v, Cincinnati, 27 B. 155. Interest.—If the interest on bonds issued for a street improve- ment, being included in an assess- ment, makes the same exceed the percentage of the value of the prop- erty allowed by law to be assessed, injunction will lie to prevent its col- lection. Salem v. Mulford, 22 C. C. 397 (affirmed without report, 62 Oras.4032)))s Interest on deferred installments, which increase the assessment beyond the statutory limitation, will not be enjoined so long as the property owner was given the option of paying it all in one payment. Wilcox v. Edgerton, 103 O. S, 267. Excess only, void.—The whole assessment is not void because it ex- THE OHIO MUNICIPAL CODE. 350 ceeds the limitation. The excess is merely not collectible, and must be paid by municipality. Upington v. Oviatt, 24 O. S. 232. Second assessment only, in- valid.—Where there have been two assessments and the owner has paid the last in full, it was held that he can not resist the first because the two together have exceeded the limit, since the last only would be the de- fective one. Brooks v. Norwood, 12 C. C. 257. See also First N. B. v. Cincinnati, 30 C. C. 694; 10 ©, C. (N. S.) 602. Estoppel to dispute excess.— As to when owner is estopped by petitioning for improvement or other- wise to resist such part of assess- ment as exceeds the limitation, see notes under §§ 3835 and 3836, post. Levied.—As used in this sec- tion ‘‘levied’’ means to fix the amount to be paid and not the collection. Wageman v. Cleve- land;. 17) C.. Ce. CN.-S.) S885 (4) Main sewers.—As to what is a main sewer, see Cincinnati v. Standard Wagon Co., 1 N. P. 387. Limitation of assessment.—Un- der former statutes it was said in Toledo v. Ry. Co., 4.C, ©. 113, 128, “where a sewer has been constructed, whether the municipal corporation which constructed it has been di- vided into sewer districts or itself constitutes a sewer district; whether it is a main sewer, intended to fur- nish drainage for the whole terri- tory lying within the district, or is a local sewer properly so-called—the power to levy special assessments to meet the cost and expenses of such an improvement is limited to what would be the fair cost of providing . ‘an ordinary street sewer, or drain of sufficient capacity 351 to drain or sewer such lots and lands.’ ” (5) Opinion of council.— Whether the opinion of council as to the size of sewer which will be of sufficient capacity to drain the lot would be overruled by the courts, quere. It certainly could not be overruled unless there has been gross abuse of discretion. Stan- ley v. Cincinnati, 13 Dec. 223. (6) Local drainage.—By mu- nicipal sewers.—Under sections of a statute such as this, property already provided with sewers con- structed by the city are exempt from further sewer assessment. But to claim the exemption on the ground that the city has already provided a sewer it must be shown that the sewer already constructed by the city is one for the use of the property, amongst others, of the one claiming the exemption, that is, it must have been intended for and used for the drainage and accommo- dation of the lots abutting on the street in which it is constructed. Toledo v, Brown, 2 N. P. 45. But if sewer is provided, the fact that owner has not actually con- nected his property with it, does not prevent exemption from assessment for another sewer. Kirk v. Toledo, fe. CNS.) 218'3"'32 Co C2162 (aff’d, 83 O. S. 509). If the city sewer is merely for the purpose of draining a pond into a trunk sewer, but not to accommodate lot owners, such owners can not claim exemption from future assess- ment. Toledo v. Brown, 2 N. P. 45. And this is so even though such lot owners had secretly made con- nection with such sewer. Ib. So a sewer for surface drainage only, made before the street. was im- ASSESSMENTS—IN GENERAL. § 3819 proved to allow property owners to connect with a sewer temporarily on condition that they should pay when a regular sewer was built, is not local drainage that would exempt. Cincinnati v. Honnigfort, 32 B. 32. But in a case where property does not abut on the street in which the sewer is laid, but where non-abutting lot owners have the right to connect with such sewer, they will be held to be already provided with local drainage, Miller v. Toledo, 12 C, C...706. A sewer built by a city many years before, having no proper outlet, and not suited to the condition of the property at the later time, nor intended by the city even at the time as a part of its sewer system, but merely as a temporary expedient, will not be a provision for local drainage that will prevent assess- ment for sewer suited to the needs of the time. Avondale v. Scudder, 12 C. C. 770. So where the sewer built by the city had no proper out- let, merely emptying on private property, and subject to be closed at any time, it does not satisfy the requirements as being a provision for local drainage and no exemption can be claimed thereby. Wilson v. Cincinnati, 5 N. P. 68; so where existing sewer empties into a water course which is to be pro- tected from further contamina- tion by the new system. Ely v. Elyria, 15 C. C. (N. S.) 133. The mere fact that an ordinance was passed by a municipality provid- ing for sewer in front of property of the one claiming exemption, but which sewer was never constructed, would not exempt such property. Cincinnati v. Bickett, 26 O. S. 49. A sewer of sufficient capacity § 3819 but which endangers the public health does not come within the exemption of this section. Ely v. Elyria, 15 C. CG. (N. S.) 138. By private sewers.—In order to give application to the exemption in the statute it is not necessary that the local drainage referred to should be provided by municipal au- thority. Ford v. Toledo, 64 O. 8. 92, 98. But see Johnson v. Avondale, 1 C. C. 229, 2832; Wewell v. Cincin- nati, 45 O. S. 407. Thus, property though not supplied with a regular system of city sewerage, but which is completely drained by an exten- sive sewer constructed partly by the city, and partly by individuals, was held to be exempt from further as- sessment. Wewell v. Cincinnati, 45 O. S. 407. So where a railway com- pany had constructed a permanent and expensive brick sewer that com- pletely drained its property it was held to be already provided with sewerage and thus exempt. Toledo v. Railway Company, 4 C. C. 113. So a tile sewer constructed by a property owner receiving and dis- charging all surface and other drain- age into trunk sewer will be held to constitute sufficient local drainage. Cincinnati v. Sullivan, 8 N, P. 22. But to claim exemption because of the construction of a private sewer it must be shown that the sewer or drain was of such dimension, mode of construction, location, outlet, etc., as would belong to a sewer built by the municipality substantially in conformity to the requirements of the statute. Toledo v. Railway Co., 4 C. C. 118, 131. So draining by a wooden box drain as a temporary expedient would not be sufficient. Wewell yv. Cincinnati, 45 O. S. 407, 422. Property owners are not ex- THE OHIO MUNICIPAL CODE. 352 empt merely because they made such private arrangements for draining their property as are satisfactory to themselves. Johnson v. Avondale, 1 C. C. 229, 232. A lot is not so provided with local drainage as to exempt it from assessment for the _ con- struction of a sewer in the street upon which such lot abuts, where it appears that its only drainage facilities are afforded by a pri- vately constructed drain through the adjoining premises over which the owner of the lot in question has no control and no right to use and maintain such sewer. Cin- cinnati v. Polster, 96 O. S. 155. But if private sewer affords ade- quate drainage, the fact that munici- pality is constructing a new and bet- ter sewer, will not make property owner liable for assessment. Lans- mead v. Cincinnati, 29 C. C. 64. The “adequate local drainage,” in order to give exemption from assess- ment, must be such as to include both permanency of structure and control, Frey v. Milliken, 15 Dee. 122; Hildebrand v. Toledo, 27 C. C. 427. So, a connection by drain through another lot, with a sewer, where control might be lost by sale of lot, held not adequate local drainage. Frey v. Millikin, 15 Dee. 122. But where one person owns two lots, constituting one tract, and extending from one street to another, held that a sewer on one of said streets constituted suflicient drainage, and an _ as- sessment could not be levied for sewer in the other street. Cin- cinnati v. Doerger, 98 O. 8. 161. By natural sewer drainage.— Lands and lots within a municipal- } 7 . J 353 ity which are naturally sufficiently drained are exempt from assessment for sewers. Cincinnati v. Hess, 19 C. C. 252. But the fact that there is a per- manent water course to which a lot reaches back and into which it is drained, will not be sufficient to exempt it, for polluting such wa- ter course would be unlawful, even though the city is unlawfully emp- tying a sewer into such water course. Cincinnati v. Kasselmann, 23 B. 392; Hildebrand v. Toledo, 27 C. C. 427; 6 C. C. (N. S.) 450. Connection with sewer designed for surface drainage only, is not sufficient to exempt. Kasselmann v. Cincinnati, 52 B. 148. Property owner provided with a drain leading to a cesspool on his own property, is not exempt from assessment. Kibler v. Toledo, 4 Nowe (N..8.), 064. In order to exempt the property owner, the drainage claimed must be such as he has a right to make, and can not be one that creates a nuisance. Hildebrand v. Toledo, 27 C. C. 427; 6 C. C. (N. S.) 450; Frey v. Millikin, 15 Dee. 122; and the fact that a lot is provided with drainage at a point beyond the aver- age depths of lots will not exempt it. Ib. : House and lot whose sewage is properly discharged into sewer used for surface and house drainage with authority of municipality is supplied with local drainage. Scully v, Cin- cinnati, 52 B, 142. Some proper and lawful connec- tion with sewers permitted to be used by municipality for drainage is sufficient to constitute local drain- age. Kasselmann v. Cincinnati, 52 B. 148. ASSESSMENTS—IN GENERAL, ~surface drainage. § 3819 The fact that the house sewage of the house on the lot and the surface water from the lot are car- ried off, is not sufficient to support the contention of complete local drainage. The lot is not completely drained unless the water is also car- ried off that would naturally flow on to it from other lots above it, or in the neighborhood. Stanley v. Cin- cinnati, 13 Dec. 223; 1 N. P. (N,S.) 235. Surface drainage.—The fact that land within a municipality is supplied with sufficient surface drainage is not enough to entitle it to claim “local drainage” within the purview of the statute. The drain- age must be such as provides the land with adequate drainage for the necessary and useful purposes of sewerage. Ford v. Toledo, 64 O. S. 92. Unimproved _property.—The fact that the property is entirely un- improved and that there is no im- mediate need for drainage, will not exempt it from assessment for sewer- age purposes. Ford v. Toledo, 64 O. S, 92. Such land is not exempt from assessment for general sewerage sys- tem, including sanitary as well as King v. Dayton, 30 C. C. 480; 10 C. C. (N. S.) 522. Land not subdivided, if sup- plied with local drainage can not be partly assessed for a sewer on the ground that if subdivided the part near sewer would not be supplied with independent drainage. Knabe v. Cincinnati, 49 B. 37, Proposed sewer not available. —It is no defense to a sewer assess- ment that the lots were below the level of the sewer or that the sewer was too small, and was therefore of § 3820 no benefit. City v. McDermott, 2 B. 240; Hildebrand vy. Toledo, 27 C. C. 427; 6 C. C. (N. S.) 450; Ford v. Toledo, 64 O, S. 92; Conner v. Cin- cinnati, 11 C. C. 336. Nor that own- er’s lot was six feet below the sewer. Toledo v. Kohn, 2 N. P. 47; nor that the owner’s cellars were deeper than: the sewer. Cincinnati v. Bickett, 26 O. S. 49; nor that the owner’s lot is a wharf on a river bank and is the lowest ground of all. Boeres v. Strader, 1 C, 8. C. R. 57, 60. How determined, generally.— Whether a lot is already supplied with sufficient local drainage is a question more or less of opinion and is governed by no fixed standard. Miller v. Cincinnati, 18 C. C. 869. The question is to be determined by all the facts and circumstances sur- rounding the property and existing at the time of assessing. Cincinnati v. Hess, 19 C. ©. 252. Conclusiveness of council’s de= termination.—The decision of council as to what lots are already provided with local drainage will not conclude the court’s inquiry into this question. Toledo v. Railway Co., 4 C. C. 118. When provision applicable.— The provision of former § 2380 R. S., repealed, exempting from assess-_ ment for sewer purposes lots or THE OHIO MUNICIPAL CODE. 354 lands which are provided with local drainage, was held applicable to lat- eral as well as main sewers. Stan- ley v. Cincinnati, 13 Dec. 223; 1. N. P. (N. S.) 235. See also Toledo v. Ry. €o, 4 ©, C. 113. But see further Ford v. Toledo, 64 O. S. 92; Hartwell v. Bldg. Ass’n, 2 B. 287. . Uniformity.—A property owner is not exempt and can not resist an assessment for sewerage purpose On the ground that other abutting prop- erty is not assessed because already provided with drainage. Toledo v. Potter, 19 C. C. 661. Or because some lots have been partly exempted, because assessed for a reduced frontage as authorized by statute. Cleneay v. Norwood, 14 O. F. D. 469; 2 0. L. R. 462. Enjoining assessment. — Prop- erty being already provided with local drainage, the owner may en- join assessment for the construction of a new sewer and need not wait until the assessment is actually levied, Potter v. Norwood, 21 C. C. 461. The burden is upon the owner to show that local drainage has been provided which is adequate to meet the needs of such lot both for surface drainage and the usual purpose of sewerage. Cincinnati v. Polster, 96 O. 8. 155. Sec. 3820. [Municipality to pay portion of cost of improve- ment.]" The corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council deems just, which part shall be not less than one-fiftieth of all such cost and expense, and in addition thereto, the corporation shall pay the cost of intersections.” [97 v. 126, § 58; 96 v. 40, § 53.] (1) Old sections.—See §§ 2273 and 2274 RB. 8. repealed, old (2) Intersections.—The require- ment that the municipality shall pay ——e 355 the cost of intersections has refer- ence to intersections of street im- provements, and has no application to intersections of street by sanitary sewer improvements. Close v. Parker, SU. Gr. C6454 1 CC.) EN. &.) 185 (aff'd, 79 O. S. 444). City must pay cost of inter- section of combined storm and sanitary sewer; intersection de- fined. Op. Atty. Gth. (1918), p. 410. The provision requiring municipal- ity to pay the cost of intersections when streets are improved includes all man-holes, catch-basins and til- Sec. 3821. ASSESSMENTS—IN CENERAL, § 3821 ings at such intersections and the municipality must pay for these. Ball v. Portsmouth, 82 O. S. 151. But incidental expenses such as surveying and advertising the im- provement are included in the 1-50 which must be paid by the munici- pality and the municipality is not required to pay in addition to the 1-50, the proportion of the cost of such incidental expenses as the cost of intersections bears to the total cost. Bass v. Portsmouth, 82 O. S. 151. This section is limited by § 3822. See Op. Atty. Gen. (1923), No. 300. [May issue bonds to pay share of cost.]’ A municipality may issue and sell bonds as other bonds are sold to pay the corporation’s part of any such improvement,” and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon.® § 53; 96 v. 40, § 53.] (1) Old sections.—Compare old §§ 2270 and 2275 R. S. repealed. (2) Bonds for municipality’s portion of street improvement. —This section is not to be con strued as limiting the powers con- ferred by the Longworth Law (now §§ 3939 et seg. G. C.), but as a grant of additional power. Heff- ner v. Toledo, 75 O, S. 413. Bonds to pay the municipality’s portion of a street improvement may be issued either under au- thority of § 3821, or under §§ 3939 et seq.; if issued under § 3821, an ordinance providing for the specific improvement must first be passed, but such ordinance is not a prereq- uisite to the issuance of such bonds under §§ 3939 et seq. Heffner v. To- ledo, 75 O. S. 413. [97 v. 126, But as to the amount of such bonds that may be issued whether under authority of § 3821 or §§ 3939 et seq., the limitations of §§ 3939 et seq. apply. Ib.; Cleve- land v. Cleveland, 18 Dee, 619; 7 N. P. (N. 8S.) 249, (aff’d, 76 0. S. 594) ; Smith v. Rockford, 4 N. P. (N. S.) 513; 29 C. C. 478; 9 C. C, (N. S.) 465; 81 0. S. 16. Maturities of bonds.—As to maxi- mum maturities, and requirement of serial bonds, see §§ 2295-9 and 2295-12, under “Miscellaneous Stat- utes”, in Part II. (3) Taxes.—See § 5649-3a under title’. Daxationy2 + anil yPart Ll. And see Columbus v. Lazarus, 15 Dec. 187. THE OHIO MUNICIPAL CODE. 356 § 3822 Sec, 3822. [Deduction of prior assessment for street re- improvement.]! When an assessment 1s levied for the re- improving of any street, for the original improving of which an assessment has theretofore been levied and paid, there shall be deducted from the assessment calculated as an assessment for an original improvement, one-half of the amount paid on the highest prior assessment, but in no case shall the assessment for such reimprovement be reduced to less than fifty per cent of what it would have been as an original assessment, unless council deems a greater reduc- tion equitable, and all amounts deducted under this sec- ion shall be paid as part of the municipal corporation's portion of the cost of the reimprovement.” [110 v. 184; 97 v. 126, § 53; 96 v. 40, § 53.] (1) Old section.—See old § 2293 R. S, repealed. (2) Under former law, repaving would include macadamizing a street formerly improved by graveling, and not more than one-half the cost of such macadamizing could be assessed — against abutters. Baldwin v. Spring- field, 10 N. P. (N. 8.) 65; 20 Dec. 265; Page v. Columbus, 15 C. C. (N. S.) 40, aff'd 86 O. S. 333. The provision as to limit of assess- ments for repaving did not apply to assessments for curbing or gut- tering if these were not a part of any former improvement. Jb. Nor does it apply if the second assessment is merely for a part of the original work for which assess- ments were not’ before levied. O’Brien v. Columbus, 3 O. L. R. 434; 16 Dee. 338. Change of grade.—Even if the erade is changed, the property can not be assessed that part of the ex- pense of the improvement which in- cludes damages awarded to abutting owners for the change of grade. McGlynn v. Toledo, 22 C, C. 34 (affirmed, 47 B. 712). Section 3838 provides specially for ease of change of grade. See that section and notes. Sec. 3823. [Claims for damages to be filed with clerk; effect of failure. ]’ An owner? of a lot, or of land, bounding or abutting® upon a proposed improvement, claiming that he will sustain damages by reason of the improvement, within two weeks after the service of the notice or the completion of the publication thereof, shall file a claim‘ in writing with the clerk of the council, setting forth the amount of the damages’ claimed, with a general description of the property with re- spect to which it is claimed the injury will accrue. An owner who fails to do so, shall be deemed to have waived such dam- eS a ee ee ee a a ee a ee ee a ee ee ee ee ee ee ee ee ee 357 ASSESSMENTS—DAMAGES TO PROPERTY. § 3823 ages and shall be barred from filing a claim or receiving dam- ages. This provision shall apply to all damages which will obviously result from the improvement,® but shall not deprive the owner of his right to recover damages arising, without his fault, from the acts of the corporation, or its agents.’ If sub- sequent to the filing of such claim, the owner sells the property, or any part thereof, the assignee shall have the same right to damages which the owner would have had without the trans- fer.® (1) Old section.—This is similar to old § 2315 R. S. repealed. Constitutionality—Old § 2315 R. 8. held valid in Cleveland v. Hy- land, 18 ©. C. 868. See also Reck- ner v, Warner, 22 O. S. 275; Cupp v. Commrs., 19 O. S. 173. This section held valid. v. Toledo, 104 O. S. 196. Strict construction.—This sec- _tion barring right to damages when claim not filed, should be strictly construed. East End B. & T. Co. v. Cleveland, 1 N. P. (N. 8.) 493; 14 Dec. 33, (aff’d, Cir. Ct. 49 B. 33). Farber (2) Who may claim damages. —A mortgagee of property dam- aged has such an interest that he may claim damages for change of grade, and if he received no notice, may maintain action for such claim. Savings Co. v. Cincinnati, 12 Dee. 218. (3) Land not abutting on im- provement.—Old § 2315 R. S. was held not to apply to land abutting the street but not abutting proposed improvement (an elevated viaduct ) and the owner of such land need not file claim. Cohen v. Cleveland, 43 0. 8, 190. But municipality may be liable though land does not abut immediately upon the improvement. Keating v. Cincinnati, 38 O. S. 141. A non-abutting owner must suf- [97 v. 122, § 54; 96 v. 41, §54.] fer a damage different in kind as well as degree from that of the general public to recover. Schmidt v. Cleveland, 15 C. C. (N. 8.) 589 (aff’d 91 O. S. 410). . When improvement touches but one corner of lot, section held not to apply. Miller v. Cincinnati, 2 B. 156. On question of lands abutting improvement, see also R. R. Co. v. McLaughlin, 15 C, C. 1; Jackson v. Jackson, 16 O. S. 163; Birtwhistle v. Cincinnati, 8 B. 25; Eagle White Lead Co. v. Cincinnati, 1 C, 8. C. R. 154; Hurst. v. Akron, 23 C.-C. (N. 8.) 591; 1 Oh. App. 264. (4) Failure to file claim 1s an absolute bar to recovery in all cases where statute applies. Hickox v. Cleveland, 8 O. 543; Cohen v. Cleve- land, 43 O. S. 190; R. R. v. De- fiance, 52 O. S, 262; Cleveland v. Hyland, 18 C. C. 868: Taber v. Bow- ling Green, 28 C. C. 173; 7 C. C. (N. S.) 3885; Farber v. Toledo, 104 O. S. 196. But before a property owner may be held to have waived his claim for damages, it must appear that he has had notice of such proposed change of grade. Farber v. Toledo, 104 O. S. 196. A verbal claim is insufficient where statute requires that it shall be in writing. Anderson v. McKinney et al., 24 O. S. 467. § 3823 (5) Recovery limited to amount claimed.—See Cleveland v. Hyland, 18 C. C. 868. But if prop- erty owner is deceived by statements of city engineer as to character of proposed improvement, the plans and profiles being unintelligible, and makes a compromise of his claim this will not bar a further recovery. Property Owner v. Akron, 7 N. P. 454, Claim can not be increased after time for filing has expired. See Geib v. Cleveland, 7 N. P. 301, When filing claim unneces= sary.—In case of improvements which are not to be paid for in whole or in part by special assess- ments, no claim for damages need be filed to entitle property owner to re- cover. East End B. & T. Co. v. Cleveland, 1 N. P. (N. 8.) 493; 14 Dec. 33, (aff’d, Cir. Ct, 49 B. 33); Schram v. Cincinnati, 14 N. P. (N. §.) 109; °° but ~claims © for damages may be filed in such case at property owner’s option. East Knd B. & T. Co. v. Cleve- land, 1 N. P. (N. 8S.) 493; 14 Dee. 33, (aff'd, Cir. Ct. 49 B, 33). An abutting property owner to whom no notice of proposed improve- ment was given need not file claim under this section. Jacobs v. Cin- cinnati, 2 N. P. 283; Toledo v. McMahon, 9 C. C. 194; McGee v. Avondale, 7 C. C. 246; Schram v. Cincinnati, 14 N. P. (N. 8S.) 109. As to sufficiency of notice, see Fenner v. Cincinnati, 4 N. P. 182. Where municipality makes one a party to suit to assess compensation his failure to file claim is waived. Cincinnati v. Sherike, 47 O. S. 217. Where prop- erty owner has been misinformed by city engineer as- to change of THE OHIO MUNICIPAL CODE. 308 grade and thus led not to file a claim, his failure will not prevent re- covery. Youngstown v. Moore, 30 O. S. 133. If notice is not sufficient to inform property owner with reason- able certainty of the effect of pro- posed improvement upon his land he is not barred from recovering dam- ages sustained by failure to file claim. Cincinnati v. Corry, 23 B. 359. See further § 3830 and notes. (6) Basis of recovery.—The basis of the recovery of damages is that the abutting owner has been misled by the municipality to his prejudice. Right of access to and from the street is property, and where an owner has improved his lot, relying upon a previously estab- lished grade or upon a reasonable grade thereafter to be established, and the municipality changes the es- tablished grade or establishes an un- reasonable grade, in either case so as to injuriously affect the access of the abutting owner, he is entitled to recover the damages thereby sus- tained, for it is not just that he should bear the whole loss. Goodloe v. Cincinnati, 4 O. 500; Smith v. Cincinnati, 4 O. 514; Le Clereq v. Gallipolis, 7 O. 218; Hickox v. Cleve- land, 8 O. 543; Rhodes v. Cleveland, 10 O. 159; Bingham v. Doane, 9 O. 165; Akron v. McComb, 18 O. 229; Crawford v. Delaware, 7 0. S. 459; Cincinnati v. Penny, 21 0. S. 499; Akron v. Chamberlain, 34 O. S. 328; Ryan v. Cinti, 1 C, C. 558; Cincin- ° nati v. Weber, 23 C. C. 651; 3 C. C. (N. S.) 56; East End B. & T. Co. v. Cleveland, 1 N. P, (N. 8S.) 493; 14 Dec. 33 (aff’d, Cir. Ot. 49 B. 33); Hurst v. Akron, 23 C. C. (N."S.) 591. The doctrine of liability, how- 359 ever, does not extend to cases in which no grade was_ established prior to the improvement of the property, and where the grade sub- sequently established is not unrea- sonable. Akron v. Huber, 78 O. S. 372. Removal of lateral support.— Where a proposed street improve- ment will require such a eut or excavation along the property of an abutting owner as to interfere with the right to lateral support, there would be a taking of prop- erty within the meaning of the Constitution, for which the owner would be entitled to compensa- tion. Orr vy. Cincinnati, 17 N. eke): 20k. Change of existing grade.— Municipality is liable where abut- ting owner has improved his lot with reference to an existing grade and the grade is subsequently changed to his damage. Akron v. Chamberlain, 34 O. S. 328, and other cases cited above. Where grade that is changed is that of an old highway adopted and used as a street, munic- ipality is liable for damages to im- provements made with reference to the old grade. Youngstown v. Moore, 30 O. S. 133; but change in the grade of a canal towpath gives no cause of action. Chatfield v. Cincin- nati, 1 B. 125. Where turnpike grades are changed after becoming city streets, owners of abutting prop- erty damaged may recover. Cin- cinnati v. Williams, 10 Ree. 705. An existing grade need not have been established by ordinance to justify property owners in improv- ing it; its establishment may be shown by nature of surface improve- ment by municipality, provided same is not merely temporary. Akron v. ASSESSMENTS—DAMAGES TO PROPERTY. § 3823 Chamberlain, 34 O, S. 328, 336. Whether municipality has by use adopted a surface grade is a ques- tion for the jury. Chatfield v. Cin- cinnati, 1 B. 125. Improvements for temporary convenience do not in- dicate establishment of grade. McGee v. Avondale, 31 B. 163. Laying of sewers and sidewalks in an unim- proved street does not establish a grade. Neubert v. Toledo, 9 C. C. 462. Long user may establish the grade of the traveled portion only of a street, and where improvements are made with reference to grade immediately in front of owner’s premises city cannot be held for damages by changing the grade of the whole street. Cincinnati v. Roth, 20 C. C. 317; and the grade of the traveled and improved portion of the roadway determines the grade for the entire width. Ib. An ordinance requiring the lay- ing of a stone sidewalk and its laying at a grade designated by the city engineer constitutes a permanent fixing of the grade. Metcalf v. Elyria, 14 C. GC. (N. 8.) 465; 84 O. 8S. 501. After municipality has established grade it must proceed with improve- ment within reasonable time, and when this is not done a‘ property owner building with reference to old grade, but after establishment of new, may recover damages. Nolte v. Cincinnati, 3 C. C. 503. And where city fails for six months to pay damages awarded for change of grade, it will be held to have aban- doned the improvement. Toledo v. Jacobson, 11 C. C. 220. Where an agreement of annexation of a village to a city, provided that grades of the village streets should not be changed without consent of, . and § 3823 compensation to the owners of abut- ting property, it was held that such agreement merely secured to such owners the same rights as if such streets had been established by the city. Thale v. Cincinnati, 1 N. P. 427. Municipality cannot bind it- self by agreement not to change the grade of a street. Ib. See also Gas Light and Coke Co. v. Columbus, 50 O. S. 65; Corry v. Cincinnati, 22 B. 194. As to effect of consent of prop- erty owner to change of grade see Feuerstein v. Jackson, 8 C. C. 396. Establishment of unreasona- ble grade.—Municipality is liable where abutting owner improves be- fore any grade is established and subsequently an unreasonable grade is made. Akron v. Chamberlain, 34 O. S. 328; but owner in improving must anticipate a reasonable grade. Ib. But where owner makes im- provements after a grade has been established but before the street is built to conform to it, he cannot re- cover, even though such grade is unreasonable. Cincinnati v, Weber, 23 C. C, 651; 3 OC. C. (N. S.) 56. When no grade has been estab- lished by ordinance or user, prop- erty owner is not entitled to dam- ages when grade is established, un- less it is an unreasonable grade. Ross v. Cincinnati, 24 C. C. 43; 2 C.C. (N.8.) 594, (affirmed, 67 O.S. 521); Taber v. Bowling Green, 28 OS OF178 3. 17.0050, 2: ON Ease Middletown v. Doty, 28 O. CG. A. 465; 6 Oh. App. 333. What is a reasonable grade.— Establishment by municipality is not conclusive of reasonableness, Pit- ton v. Cincinnati, 3 C. C. 593. Rea- sonableness of grade is a question for the jury. Jb. Reasonableness of grade cannot be shown by opinion of THE OHIO MUNICIPAL CODE. 360 a witness, but jury must determine this from facts put in evidence. Feuerstein v. Jackson, 8 C. C. 396, 399. The question whether a grade established by council is unrea- sonable must be determined as of the time of its establishment. St. Bernard v. Goham, 10 Oh. App. 402. Owner of unimproved lot can- not recover damages for change of grade, being presumed to purchase with a view to a reasonable improve- ment of the street. Crawford v. Delaware, 7 O. S. 459; Leonard v. Cassidy, 8 C, C. 529. What is an improved lot.— Buildings constitute improvement, and damages to them are recovera- ble. Crawford v. Delaware, 7 O. S. 459; Akron v. Chamberlain, 34 O. S. 328; Keating v. Cincinnati, 38 O. 8. 141. Where a grade has been estab- lished by improvement and user, damages to property by reason of injury to, or destruction of shade trees, caused exclusively by change of grade, may be recov- ered. Dayton v. Haines, 12 Oh. App. 439. Where an owner uses three ad- joining lots in one ineclosure as a homestead, he is entitled to damages to all of them caused by the establishment of an unwar- ranted and unreasonable grade of the street, even though there are no buildings upon two of the lots. Hurst v. Akron, 23 ©. CC, (N. 8.) 591. Grading to an established grade is an improvement, and when the change destroys the value of such grading the same may be recovered, not exceeding in amount the value 361 of the lot. Seasongood v, Cincin- nati, 5 C, C. 225, (aff'd, 51 O. S. 611). Upon the same principle the building of fences and walls and the planting of trees, hedges and shrub- bery are improvements, Cincinnati v. Williams, 10 Rec. 705; so is a sidewalk. Kellner v. Dayton, 7 Day- ton, 28. Measure of damages.—The owner is entitled to that sum which represents the diminution in value of his property caused by change of grade or the establishment of an unreasonable grade. General bene- fits derived from the improvement cannot be offset, though special and local benefits not such as are con- ferred upon other abutting property may be so offset. Martin v. Bond Hill, 7 C. C. 271; Cincinnati v. Wil- liams, 10 Rec. 705; R, R. Co. v. Gardner, 45 O. S. 309, 323; Carlisle v. Cincinnati, 8 C. C. (N. S.) 46. The measure of damages is the dif- ference in value of the property as a whole, and the owner cannot recover for injury to trade or business or extra expense connected therewith, caused by the change of grade. Cin- cinnati v. Whetstone, 12 Where the established grade is unreasonable the measure is the difference between the amount of damages which would have re- sulted to the property from the establishment of a reasonable and proper grade and that resulting from the grade actually estab- lished. St. Bernard v. Goham, 10 Oh. App. 402. Property owner can not recover for unsightliness of his premises or obstruction of view caused by the improvement. Cincinnati v. Williams, 10 Ree. 705. Recovery is limited to diminution in value of the improve- ASSESSMENTS—DAMAGES TO PROPERTY. made. B. 247. | § 3823 ments on owner’s property. Jb.; and where buildings are just as conven- iently located with respect to new grade as they were with respect to old he cannot recover. Lotze v. Cin- cinnati, 61 O. S. 272. On measure of damages, see also R. R. Co. v. Mar- tin, 10 W. L. J. 54; Chatfield v. Cin- cinnati, 1 B. 125; White v. Cincin- nati, 47 B. 169, edit.; Toledo v. Meinert, 15 C. C. (N. 8.) 545. When damages payable.—The property owner is entitled to com- pensation before the improvement is Ryan y. Cincinnati, 1 ©. ©. 558; Crawford v. Delaware, 7 O. S. 459; Ry. Co. v. Cumminsville, 14 O. S. 523. Property owner entitled to interest on award of damages from time change of grade is made. Cin- cinnati v. Whetstone, 47 O. S. 196; and this is from the time the work is begun. Cincinnati v. Williams, 9 B. 243. When interest alone not paid, separate action may be brought for it. Toledo v. Scott, 23 B. 238. Street acquired by dedication or appropriation may be improved to a reasonable grade without liabil- ity to abutting owner for any injury resulting therefrom, including the removal of lateral support, all such damages being considered waived by dedication or included in the award. Grant v. Village of Hyde Park, 47 B. 831, 67 O, S. 166; Tenney v. Cin- cinnati, 47 B. 832; 24 C. C. 237; 67 O. S. 518; Ross v. Cincinnati, 24 GC. C.,433..2.0.C. (N, 8.) 694 (af- firmed, 67 O. S. 521). But see con- tra, Harlow v. City, Cin. Court In- dex, June 9, 1902; Columbus v. Wil- liard, 7 C. C.°113. Damages cannot be included in assessment.—See McGlynn v. Toledo, 22 C. C. 34 (aff’d, 47 B. § 3823 712); Carlisle v. Cincinnati, 8 C. C. (N. S.) 46; see note (1) under § 3896. Enjoining public improve=-= ment.—When proposed change of grade threatens injury to private property and ultimate relief is com- pensation, court may refuse injunc- tion, East End B. & T. Co. v. Cleve- land, 1 N. P. (N. 8.) 493; 14 Dee. 33; and retain case for assessment of damages. Turnpike Co. v. Commrs., 5 N, P. 423. Injunction refused against city’s proceeding with improvement where damages for change of grade have been paid, but plaintiff had not been paid for sloping fill. Fogarty v. Cin- cinnati. 7 N. P. 100. Property owner to whom jury in change of grade case allowed no damage must seek remedy in error proceedings; he cannot enjoin the improvement. Frevert vy, Finfrock, 31 0. S. 621. Property owner showing threat- ened injury may enjoin when author- ity to fix the new grade has been un- lawfully delegated by council to city engineer. Lippleman y. Cincinnati, 4. C. 327. The owner of an unimproved lot cannot prevent by injunction a change of grade in front of his prop- erty, but he may enjoin the taking of a portion of his land for the construction of a viaduct where com- pensation has not first been paid. Leonard v. Cassidy, 8 C. C. 529. The construction of approaches to a county bridge which will change the grade in front of plaintiff’s im- proved property may be enjoined un- til compensation is paid. Gawn v. Wilson, 7 N. P. 33. Pleading, practice and evi- dence.—Muncipality is bound by its THE OHIO MUNICIPAL CODE. 362 plans and specifications and cannot show by its officers that the proposed improvement will be made in some different manner. Martin v. Bond Hill, 7 C. C. 271; nor can municipal- ity show by its officers that a grade will be established according to law where an improvement is proceeding without required action of the au- thorities. Feuerstein v. Jackson, 8 C. C. 396, 399. Compliance with the statutory requirement as to filing claim is sufficiently shown in the absence of direct evidence offered in chief, by testimony drawn out by the city, although introduced for an entirely different purpose. Toledo v. Meinert, 15 ©. C. (N. 8.) 545, Damages may be proven by testi- mony either showing the value of the property immediately before and im- mediately after the improvement, or showing the cost of adjusting the property to the new grade by cut- ting down, filling, restoring or re- pairing buildings, fences, ete. But opinion of witness that property is damaged or stating the amount of the damage is not admissible. R. R. Co. v. Ball, 5 O. S. 568. Testimony tending to show that property will be benefited by the change of grade, when no special or local benefit different from that con- ferred upon other property abutting the improvement is claimed, is not admissible. Martin v. Bond Hill, 7 C. C, 271; R. R. Co, v. Gardner, 45 O. S. 309, 323. But special benefits, peculiar to the particular property, may be shown. Lotze v. Cincinnati, 61 O. S. 272. Property owner’s remedy, if no damages are allowed, is by proceedings in error. See § 3831 post; and see also Frevert v. Fin- 363 frock; 31 O. S. 621. He cannot en- join the improvement. Ib, Where the record does not show what the answer to the question _would have been, an exception is not properly taken to a refusal of the court to allow witnesses to testify to the reasonableness or unreasona- bleness of a grade. Cincinnati v. Weber, 23 C. C. 651. In a suit to contest an assessment plaintiff can- not show damages to the property assessed as set-off against the assess- ment. Ulm v. Cincinnati, 7 N. P. 278; Strauss v. City, 23 B. 359. But in a suit by property owner for damages for change of grade munici- pality may offset unpaid assessment for such improvement, though such assessment could not under later decisions include the damages awarded, Toledo v. Breyman, 23 B. 242. In suit by taxpayer to enjoin a change of grade on ground that action proposed is unreasonable and an abuse of corporate power it is not sufficient to show that the old grade had been long established and im- proved to by private owners and pub- lic authorities. Corry v. Cincinnati, 22 B. 194. An ordinance repealing a for- mer ordinance establishing a grade is competent in an action for damages from a later change of grade. Toledo v. Meinert, 15 Cs, C. CNa 8.) 545. A city engineer’s book levels are not admissible to show a grade es- tablished by ordinance, but may be introduced to prove levels as taken. Incl. Plane R. R. Co. v. Pfau, 9 B. 200. A. petition for damages for change of grade, filed after the change is made, and not alleging that the same was done contrary to law, is demur- ASSESSMENTS—DAMAGES TO PROPERTY. § 3823 rable. Kratochwill v. West Carroll- ton, 1 Dayton 35. Nore.—For full discussion of the principles involved in change of grade cases, including the right of recovery and the measure of dam- ages, see article in 10 Am. Law Rec. 705, by Mr. Frank M. Coppock, of the Cincinnati bar. Other causes of action.—For cases involving injuries to property by the making of street improve- ments, and not affected by this sec- tion, see notes to § 3714, ante. (7) Damages for Negligence.— When a municipality removes earth from a hillside in improv- ing a street, the soil of which hill is known to be slip soil, without shoring up the bank the support of which is thus removed, and a slide upon the lot of an abutting owner results after a hard rain, liability for the damage thus sut- fered cannot be escaped on the ground that the work was being done by an independent contrac- tor, or that the city was the owner of the dominant tenement, or that the slipping of the hill- side following a heavy storm and downpour was an act of God. Cincinnati v. Filser, 19 C. C. (N. S.) 112; but such damages can- not inelude the full salary of one of the officers of a railway com- pany who was compelled to de- vote much of his time during the period of repair to overseeing the work. Cincinnati v. Railway, 21: Gr CZnGNiv82) OF. (8) When right to compensation becomes vested.—The right of an abutting owner to compensation on account of a change of grade vests not later than the time when the work of changing the § 3824 THE OHIO MUNICIPAL CODE. 364 grade has so far progressed as to materially obstruct and interfere with access to the property; and in the absence of an agreement to the contrary the right to re- in such owner, and does not pass to a grantee to whom the property was transferred subsequent to “such vesting. Cleveland v. Stone Co., 13 .N.. P.5 (Ne 8.) e209; ceive such compensation remains FORM OF CLAIM FOR DAMAGES. To the Clerk of the Council of the City [or Village] of.........0...... : State of Ohio: The undersigned is the owner of the following described property in the elty- Lor: village] (Ole, ccsecen «oss : (Here insert general description of property), bounding and abutting upon........... street, between........ GN See wens beeen (state termini of proposed improvement). And claims that said property will be damaged in the sum of........ dollars by the proposed improvement of........... street under the reso- lution passed therefor on the ........ BY OL ica sin eects gO stares Sec. 3824. [Determination of council as to claims for dam- ages.]' At the expiration of the time limited for so filing claims for damages, the council shall determine whether it will proceed with the proposed improvement or not, and whether the claims for damages so filed shall be judicially inquired into, as hereinafter provided, before commencing, or after the completion of the proposed improvements.2 [97 v. 122, § 55; 964,41, §.55;] (1) Old section 2316 R. S. re- 361. See also Orr v. Cincinnati, pealed. (2) Validity of provision allow- ing the inquiry to be postponed un- til after the improvement made, sus- tained. Toledo v. Preston, 50 O. S. L7 WN. Ps. GNA) ol. Ordinance should be passed only after time limited for filing claims. See Joyce v. Barron, 67 O. S. 267 But see Toledo v. Ry. Co., 4 C. C. 113. Sec. 3825. [Ordinance for improvement; what to contain. ]? If the council decides to proceed with the improvement, an or- dinance for the purpose shall be passed.* Such ordinance shall set forth specifically the lots and lands to be assessed for the improvement,* shall contain a Statement of the general nature of the improvement, the character of the materials which may be bid upon therefor, the mode of payment therefor, a refer- ence to the resolution theretofore passed for such improvement ' ee Ce a ey ae a ee a 365 ASSESSMENTS—DAMAGES TO PROPERTY. § 3825 with date of its passage, and a statement of the intention of council to proceed therewith in accordance with such resolu- tion and in accordance with the plans, specifications, estimates and profiles provided for such improvement.* [97 vy. 122, § 5D ; 96 v. 41, § 55.] (1) Old section 2316 R. S. re- pealed. (2) Effect of ordinance as to binding municipality, see Shehan v. Cincinnati, 25 B. 212 (aff’d, 27 B. 375), and see Hays y. Cincinnati, 62 O. §. 116, 122. (3) Sufficient of description. —Ordinance need not fix the depth of lots subdivided. Wilson v, Cin- cinnati, 5 N. P. 68. Ordinance may describe lots and lands by referring to a resolution describing them. Jb. (4) Requirements of ordi- nance.—An ordinance not specifi- cally ordering cost to be assessed on abutting property, but incorporating by reference the preceding resolu- tion, which did so order cost to be paid, was held to fulfill the require- ments. Cincinnati v. Goodman, 5 Ree. 153. So an ordinance not mentioning drains and culverts, but referring to the resolution which did provide for them, was held to have sufficiently ordered drains and culverts. Schroe- der v. Overman, 18 QC. C. 385; 61 SAS rag 2 Statement in an ordinance pro- viding for improvement of a, street, that the paving shall be asphalt, brick or other material as may there- after be determined, meets the re- quirement that the ordinance -shall contain a statement of the general nature of the improvement and the character of the materials which may be bid upon therefor. Emmert v. Elyria, 74 O. S. 185. The intention of the legislature was to require council to desig- nate, not the particular material with which the street should be paved, but to state the genera character of the same. Scott v. Hamilton, 7 C. C. (N. S.) 493; 29 C. C. 652; Preuer v. Bardes, 18 Dee, 176: Mistake in publication of this ordinance held not fatal to con- tract. Newark v. Fromholtz, 102 Ov. 81, See § 3834, post. FORM OF ORDINANCE TO PROCEED WITH THE IMPROVEMENT. Ordinance No...... Determining to proceed with the improvement of........... street, from Pet eee ee to..........., by paving [constructing sewer or making other improvement]. Be it ordained by the council of the cry [or imiliageoore ar... ‘ State of Ohio, three-fourths of all members elected thereto concurring: Sec. 1. That it is hereby determined to proceed with the improvement Oli seb. mtreet, from. wrest; to safer seatehol uestee si DY a. etn «.i¢here:.in- sert general nature of improvement and character of materials to be used), in accordance with Resolution No..... » passed on the...... day of AOSHI Be a , 19...., and in accordance with the plans, specifications esti- § 3825 THE OHIO MUNICIPAL CODE. 366 mates and profiles heretofore approved and now on file in the office of the director of public service [or, in villages, of the clerk]. Sec. 2. That ail claims for damages resulting therefrom shall he judicially inquired into before commencing [or after the completion] of the proposed improvement, and the solicitor [or mayor] be and he is hereby authorized and directed to institute proceedings in a court of competent jurisdiction to inquire into such claims. Sec. 3. That the whole cost of said improvement less one........ thereof (not less than one-fiftieth) and the cost of intersections shall be assessed by a percentage of the tax value thereof (or, “‘in proportion to the benefits which may result from the improvement,” or, “‘by the foot front’’) upon the following described lots and lands, to-wit: all lots and lands bounding and abutting upon the proposed improvement (or, here describe specifically benefited territory to be assessed) which said lots and lands are hereby determined to be specially benefited by said im- provement; and the cost of said improvement shall include the expense of the preliminary and other surveys, and of printing and publishing the notices, resolutions and ordinances, required, and the serving of said notices, and cost of construction, together with interest on bonds issued in anticipation of the collection of deferred assessments, and all other necessary expenditures. Sec. 4. That the assessments so to be levied shall be paid in...... (not more than ten) annual installments, with interest on deferred pay- ments at the same rate as shall be borne by the bonds to be issued in anticipation of the collection thereof; provided that the owner of any property assessed may, at his option, pay such assessment in cash within thirty days after the passage of the assessing ordinance. Sec. 5. That bonds of the city (or village) of.............. shall be issued in anticipation of the collection of assessments by installments and in an amount equal thereto. Sec. 6. That to pay the remainder of the cost of said improvement, there be and is hereby appropriated from the............ fund the sum of $ . Sec. 7. (Jn cities.) That the director of public service be and he is hereby authorized and directed to make and execute a contract for said improvement with the lowest and best bidder after advertisement, according to law. Sec. 7. (Jn villages.) That the clerk be and he is hereby authorized and directed to advertise for bids for the construction of said improvement according to law. Sec. 8. This ordinance shall take effect and be in force from and after the earliest period allowed by law. MBSSOO se in ho d:s aida 5 Rie ae TY Bysteae. Attest: see eee owe ee) ee ee oe eee eee ere eer eee eee eee President of Council. : | | : 367 ASSESSMENTS—DAMAGES TO PROPERTY. § 3825 (In view of the provisions of § 3835, it seems advisable that the above ordinance should be passed by a three-fourths vote of council, though this is not explicitly required, as in case of resolution of necessity. This ordinance should have the certificate of the auditor (or in villages, the clerk), as to the funds necessary to pay the municipality’s share of the cost. (§ 3806.) FORM OF ASSESSING ORDINANCE. Ordinance No.......... To levy special assessments for the improvement of .......... 3 DCPECE ATOM! .city os oes an COmt easy oie us tts by (here describe character of the improvement). Be it ordained by the council of the City [or Villagepot iit. FS nae : State of Ohio: Sec. 1. That the assessment of the cost and expense of improving tency yt. tls UE TLUN pt en Pica ee OR ah Ce eo ee Pe by (describe character of improvement), amounting in the aggregate to $...... as reported to this council on the ........ dey Obaivi« fey. Somes ste Dhiy ass by the City Engineer (or other designated officer, or, if assessment is by benefits, “by the board heretofore appointed to estimate said assess- ments’’), notice of the filing of which assessment has been given as re- quired by law, be and the same is hereby adopted and confirmed, and that there be and is hereby levied upon the lots and lands bounding and abutting upon said improvement [if other property is to be assessed, add:] and upon the following other specially benefited property, to wit: (here describe as per § 3826), the several amounts reported as aforesaid, which assessments, together with the description of said lots and lands, are now on file in the office of the clerk of this council, and which assessments are at the rate of $...... per front foot [or ‘‘are ...... percent of the tax value of the property assessed,” or, 7f assessment is by benefits, ‘‘are in proportion to the special benefits’’], and are not in excess of the special benefits to said property. (Note: If the assessment is by benefits upon report of an equalizing board, the above section should be modified as follows:) Sec. 1. That the assessment of the cost and expense of improving AM PORT TSF EEC Orn: KV ACI to oy ec by (describe character of improvement), amounting in the aggregate to $...... as reported to this council on the ........ ai, GE ee ee. Bi suo eee ns Sec. 2. That the total assessment against each lot or parcel of land shall be payable in cash within thirty days from and after the passage of this ordinance, or, at the option of the owner, in ...... annual! in- stallments with interest at the rate of .... percent per annum [same rate as borne by the bonds, if same have been issued, or if not issued, “at § 3825 THE OHIO MUNICIPAL CODE. 368 the same rate as shall be borne by the bonds to be issued in anticipation of the collection of the same”}. All cash payments shall be made to the treasurer of said city for village]. All assessments and installments thereof remaining unpaid at the expiration of said thirty days shall be certified by the clerk of this council to the county auditor, as provided by law, to be by him placed on the tax duplicate and collected as other taxes are collected. Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law. o. wie W950, 60 © 6 eo ues 0) 6) 0 ee vues we le anes ee President of Council. PASSOUHE eee cet ok Mar tenee eee eee TACOS Se ee ee ee Ree Sees NotTE.—Section 3892 requires that such installments shall be certified by the clerk of the council to the county auditor annually and collected as other taxes. In cities, this may be done by the city auditor delivering a record of such installments to the clerk of council and the latter certi- fying them to the county auditor. FORM OF CERTIFICATE OF FISCAL OFFICER. Ohio Se pees To: the, council’ -of #the Citys for) Villageys O86 05k? es ale cee Pursuant to Sec. 2295-7 general code of Ohio, I hereby certify that the estimated life of the improvement of................Street from By aks a, Sree to.........., contemplated by the proposed ordinance here- tovanhnexed 1suee.) seer . years, and I further certify pursuant to Secs. 2295-9 and 2295-10 that uA maximum maturity permitted by law of the bonds authorized in said ordinance is............ years from a date twelve months prior to the date of the earliest maturity of said bonds and that the same has been calculated in accordance with Sec. 2295-9 of the general code of Ohio. O Ce ee oe 6.6) ee: a) a ie, ee lone oteh mean ates edie ewes © City Auditor [or Village Clerk]. Note that the above certificate must be made prior to the passage of the ordinance, 369 ASSESSMENTS—DAMAUGES TO PROPERTY. § 3825 FORM OF ORDINANCE TO ISSUE BONDS IN ANTICIPATION OF THE COLLECTION OF ASSESSMENTS. (Sec. 3914 et seq.) Ordinance No.......... To issue bonds in anticipation of the collection of special assessments for the improvement of ...........- mereet,” frome) iit hii SR: to Whereas, the Council of the City for Village] of ............ , Ohio, has heretofore, by resolution duly passed on the .......... day of Reta & , 19...., declared the necessity of improving ............ Sireey, TOOL vce ate os LOws ete Serta Pid 8 adage cl Ae a kop , and of levying a special assessment upon the property abutting on said street to pay for said improvement, all in strict conformity to law, and Whereas, the City Auditor [or Village Clerk] has certified to this council the estimated life of said improvement as. ........ . years, and has further certified the maximum maturity of the bonds hereinafter provided for as Jt. uyears; and Whereas, this council estimates that a tax for said bonds will first appear on the duplicate for the tax year 19. ., and that the final tax settle- ment with the County Treasurer next following the inclusion of a tax for this issue in the Annua] Budget by the County Auditor, as provided by law, will be obtained not earlier than the first day of September, 19___, and will require $.... for interest until such taxes are collected and available; Now, therefore, Be It Ordained by the Council of the City [or Village] of State of Ohio: Sec. 1. That for the purpose of raising money in anticipation of the collection of special assessments for the improvement of............ StrecumiLoliercr- i wa orci LO ry es: , by (here describe character of improvement) bonds of said city [or village] shall be issued to the UAE Ol assert, Wee aeoesei o cn Dollars. Sec. 2. Said bonds shall be designated as the “............ Street improvement bonds’’; shall be of the denomination of $...... each (except, ete., to take care of any odd denominations which may result); shall be dated not, later than ............ , 19....; shall draw interest BtetrherratevOlern s) «aes per centum per annum, payable semi-annually Cee TG tot Bevewure Mar PEA en ves hi ee ae in each year, upon presentation and surrender of interest coupons to be attached to said bonds, bearing the facsimile signature of the Auditor [or Clerk], anP shall be due and payable as follows: (Show the aggregate amount matur- ing at each maturity date. All bonds must be serial bonds, and must mature in substantially equal installments. § 2295-12. Note the pro- § 3825 THE OHIO MUNICIPAL CODE. 370 visions of § 2295-12 as to the earliest maturity allowed, and § 2295-9 as to the latest maturity. See these sections under ‘Miscellaneous Stat- utes” in Part II.) Sec. 8. Said bonds shall be prepared by the City [or Village] Solicitor, signed by the Mayor and City Auditor [or Village Clerk], sealed with the city [or village] seal, and (in case of city bonds only) recorded in the office of the Sinking Fund Trustees; shall express upon their face the purpose for which they are issued, and the fact that they are issued pur- suant to law, and this ordinance; shall be payable, both principal and interest, at the office of the Treasurer of the City [or Village] of .......... : or ‘at; the officeol ‘thes oo eo Bank, in the City [or Village] of eee tres stk ehee ; Shall be issued and sold under the direction of the finance committee of Council, and shall bear such consecutive numbers as said committee or the proper officers of the city [or village] may determine. Sec. 4. That upon sale of said bonds, any premiums and the accrued interest realized therefrom, shall be paid to the Sinking Fund Trus- tees. The par value realized from the sale of said bonds shall be placed in the city [or village] treasury, to the credit of the ............ Street Sec. 5. In the event any of the owners of any of said property so specially assessed shall pay their total assessments in cash within thirty days of the date of the final passage of the ordinance levying such special assessments, the aggregate amount of bonds to be issued shall be reduced by deducting the amount so paid in cash from the total amount of the bonds to be issued, and the bonds herein provided for first maturing shall be correspondingly reduced by the omission of so many thereof as shall equal the amount of assessments so paid, or by changing the denom- ination of one of said bonds, or both, as the case may be, and the amount to be credited to the foregoing fund from the sale of said bonds shall be likewise reduced by the amount of the assessments so paid in cash for such improvement. Sec. 6. That all installments of said assessments and all portions thereof, together with interest thereon, shall be applied to the payment of said bonds and interest as the same shall become due, and to no other purpose whatsoever. cipal and interest of the bonds hereinbefore described in accordance with the laws and constitution of the State of Ohio. Sec. 8. That for the purpose of providing the necessary funds to pay the interest on the foregoing issue of bonds promptly when and as the 371 ASSESSMENTS—DAMAGES TO PROPERTY. § 3826 same falls due, and also to create and maintain a fund sufficient to dis- charge the said bonds at maturity, there shall be, and is hereby levied on all the taxable property of the City [or Village] of.. Beets in addition to all other taxes, a direct tax annually ae the peticd for which said bonds are to run in an amount sufficient to provide a fund for the discharge of the principal of said serial bonds at maturity, which tax shall not be less than the interest and sinking fund tax required by section 11 of article XII of the constitution. Provided, however, that in each year that the assessments anticipated by said bonds are payable and are applicable to the payment of such interest and principal and are appro- priated for such purpose, the amount of such tax shall be reduced by the amount of the assessment so appropriated. That said tax shall be and is hereby ordered computed, certified, levied and extended upon the tax duplicate and collected by the same officers, in the same manner and at the same time that the taxes for general pur- poses for each of said years are certified, extended and collected. Said tax shall be placed before and in preference to all other items, and for the full amount thereof. All funds derived from said tax levies hereby required, shall be placed in a separate and distinct fund, which, together with all interest collected on the same, shall be irrevocably pledged for the pay- ment of the interest and principal of said bonds when and as the same fall due. See. 9. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Si eihel a ie/.e7 0 64.510 (e210, © elise wma eye, 91.0r Oke 16100 e 18 President of Council. _ Sec. 3826. [How lots and lands to be described.] In set- ting forth specifically the lots and lands abutting upon the im- provement and to be assessed therefor, it shall be sufficient to describe them as all the lots and lands bounding and abutting upon such improvement between and including the termini of the improvement, and in describing those which do not so abut it shall be sufficient to describe the lots by their appro- priate lot numbers, and the lands by metes and bounds, and this rule of description shall apply in all proceedings in which lots or lands are to be charged with special assessment. [97 v. 122, § 55; 96 v. 41, § 55.] THE OHIO MUNICIPAL CODE. 372 § 3827 Sec. 3827. [Assessment of damages.]* When claims for damages are filed within the time limited, and the council, hay- ing passed an ordinance for making the improvement, deter. mines that the damages shall be assessed before commencing it, the mayor or solicitor shall make a written application for a jury, to the court of common pleas, or a judge thereof in vacation, or to the probate court? of the county in which the corporation or the larger part of it is situated. The court or judge shall direct the summoning of a jury in the manner provided for the appropriation of property,® and fix the time and place for the inquiry and the assessment of such damages, which inquiry and assessment shall be confined to such claims.‘ [96 v. 42, §56.] (1) Old section 2317 R. S., re- pealed. (2) Jurisdiction of Probate Court.—No constitutional objection to conferring on probate court juris- diction to inquire by jury into claims for damages. Toledo v. Pres- ton, 50 O. S. 361. (3) Procedure.—See note (3) to § 3683, ante. (4) Damages assessed before commencing improvement must be paid to property owner before work is begun in front of his prop- erty, Ryan v. Cincinnati, 1 C. QC. 558; interest must be paid on amount if compensation is deferred, Cincinnati v. Williams, 9 B. 243; and where the owner sues for dam- ages the corporation having failed to have damages assessed, owner is entitled to interest from the time the work was begun, Cincinnati vy. Whetstone, 47 O. S. 196. Failure to pay award.—Where municipality fails to pay award of damages and to enter upon improve- ment it shall be held to have aban- doned the improvement and prop- erty owners who were defendants in the action to assess damages may have costs and attorney fees al- lowed as in case where city fails to pay for or take possession of property after appropriation pro- ceeding. Toledo v. Jacobson, 11 C. C. 220 (dismissed, 38 B. 248). Estoppel to deny filing of claim.—Where municipality has made a property owner defendant ‘in an action to assess damages and submitted his claim to a jury, it cannot defeat his recovery by show- ing that he did not file his claim in time. Cincinnati v. Sherike, 47 On8! 217, ’ 373 ASSESSMENTS—DAMAGES TO PROPERTY. § 3827 FORM OF APPLICATION TO ASSESS DAMAGES. Fane Say Court,..........County, Ohio. coanvil, Application to assess damages. Y. (Here insert names of all persons who have filed claims within time required by law), Defendants. Now comes the city [or village] of ........ and represents that it is a city [or village] under the laws of Ohio, and that its council by resolution duly passed on the........ ay ROlaeoe se. hiaetiae , 19...., declared it to be necessary to improve............. street) from a.3cyin:ki< CO er tan ee , by paths tn bie te. (here describe nature of proposed improvement). And that notice of the passage of said resolution was given according to law, to all persons whose property is to be assessed to pay any portion of the cost of said improvement. Plaintiff further represents that on the........ day! of Rie reas IOs its council determined by ordinance duly passed to proceed with the ate posed improvement and that claims for damages should be judicially in- quired into, before commencing said improvement and directed the solicitor [or mayor] to make this application. Plaintiff further represents that the following named persons, defendants herein, filed claims in writing, on the dates hereinafter shown, with the clerk of council, setting forth the damages claimed to be sustained by rea- son of said improvement, as follows: Neh chen sat »-+.- Claiming to be the owner of......... (here describe property as set forth in claim for damages), filed a claim on the.......... AYRODAN Aa. eee Se , 19...., as follows: (here insert claim). ei tacge ety crags bys 35745 etd. 5 ete. Wherefore, plaintiff asks the court to cause a jury to be impaneled to make inquiry into and assess the damages, if any, which will be sustained by defendants’ lots and lands, by reason of the proposed improvement, as provided in said resolution and ordinances. eee ee eee eee eee errr sree ee Solicitor [or Mayor]. (No verification required.) PRECIPE. To the Clerk: Issue notice to the defendants named in the above application that plaintiff will, on the....... GAY Ol) oscars , 19...., at....M., apply to the PEGMOLADIC scr feel Peace: y judge of the. s. 0.6. e, Court of........ § 3828 THE OHIO MUNICIPAL CODE. 374 county. for the impaneling of a jury to make inquiry into and assess, the damages, if any, to be paid by the city [or village] of............. to the persons having filed claims therefor according to law, under the ordinance 10 "IQUPYOVE™ 4. 2% cise tales street,-from......%. CONS. tals Ve , passed on the Ss A GAY OF. 4 Sacchi ay LO 221616. 0 6 0» 8» © 6. 10.6 6 don a 618 Solicitor [or Mayor]. Sec. 3828. [Proceedings of jury.] The jury shall be sworn to inquire into and assess the actual damages* in each ease sep- arately, under such rules and instructions as shall be given it by the court. When the jury can not agree, it may be dis- charged, but the court may receive its verdict as to one or more of the claimants, and discharge it with respect to parties concerning whose claims it can not agree. In case of the dis- charge of the jury because of disagreement as to any or all of the claims, a new jury shall be Summoned, and the same proceedings shall be had, with respect to the claims concerning which there was no verdict, as on the original trial. [R. S. Sec. 2318 ; 66 v. 246.] (1) Measure of damages.—For measure of damages, see notes un- full discussion of character and der section 3823, ante. Sec. 3829. [Assessment after completion of improvement. ]' When the council determines to assess the damages after the completion of an improvement provided for by this chapter, for which a claim for damages has been filed as herein pro- vided, the mayor or solicitor shall, within ten days after the completion of such improvement, make written application to the court of common pleas, or a judge thereof in vacation, or to the probate court of the county in which the corporation or the larger part thereof is situated, to summon a jury in the manner provided in this division for the appropriation of prop- erty, to assess the amount of damage in each particular case and such court or judge shall fix the time and place of inquiry, and the assessment of damages, in the manner hereinbefore provided. [R.S. See. 2321; 67 v. 82.] C1) City may be compelled by certain damages. Orr v. Cincin- mandamus to take action to as- nati, 17 N. P. (N. 8.) 201. . a. i a 375 ASSESSMENTS——DAMAGES TO PROPERTY. § 3830 Sec. 3830. [Time allowed before suit can be brought.] No person who claims damages, arising from any cause,! shall commence a suit therefor against the corporation until he files a claim for such damages with the clerk of the corporation, and sixty days elapse thereafter, to enable the corporation to take such steps as it deems proper to settle or adjust the claim,? but this provision shall not apply to an application for an in- junction, or other proceeding to which it may be necessary for such applicant to resort in case of urgent necessity. Sec. 2326; 66 v. 247.] (1) What claims included.— This section applies only to such damages as will obviously result from a street improvement. It does not include damages for a nuisance created and maintained by the mu- nicipality; nor damages for personal _ Injuries; and claims for such dam- ages need not be filed. Ironton v. Wiehle, 78 O. S. 41; Warren v. Davis, 43 O. S. 447. A claim for damages against a village and contractor for caus- ing and permitting trees to be recklessly and unnecessarily mu- tilated in stringing electric wires for street lighting, need not be filed under this section. Village of Amelia v. Hicks, 28 O. C. A. 582; 7 Oh. App. 295. The question of the failure of plaintiff to comply with this sec- Sec. 3831. [R. S. tion must be raised at the outset of the trial. St. Bernard v. Go- ham, 31 O. C. A. 273. Where no notice received, of resolution to improve, property owner is not barred from commenc- ing a suit for damages. Jacobs v. Cincinnati, 2 N. P. 283. This section relating to filing claims does not extinguish the cause of action, but is merely pro- cedural and with design to give the city an opportunity to in- vestigate or adjust the claim with- out cost. St. Bernard v. Goham, 10 Ch. App. 402. (2) Power to compromise and adjust damage claims without judic- ial determination is clearly recog- nized in this section. Quinby v. Cleveland, 16 O, F. D. 583. [Prosecution of error.] The provisions of this title for the appropriation of real estate shall apply to the municipal corporation, or the owners of any property who may desire to prosecute error as in other cases.’ [96 v. 42, § 57.] (1) Review.—See § 3695, ante, and notes thereunder. Sec. 3832. [Costs of inquiry.] Ifthe jury finds no damages, the costs of the inquiry shall be taxed against the claimant, and collected on execution. In other cases the costs shall be paid by the corporation. [96 v. 42, § 58.] § 3833 (1) Old section 2320 R. S., re- pealed. (2) On failure to pay award or take possession within six months, the costs which must be paid to property owner, include at- Sec. 3833." [How contract to be let. ]* THE OHIO MUNICIPAL CODE. 376 torney’s fees. 11 C. C. 220. Owner not allowed damages cannot enjoin improvement. He must seek his remedy by error pro- ceedings. Frevert v. Finfrock, 31 O. S. 621, Toledo v. Jacobson, The contract for any such improvement shall be let by the director of public service, in the same manner as other contracts, and in ease all bids be rejected such director in cities and the council in villages may order a readvertisement for bids.? (1) Old section.—See old § 2303 R. S., repealed, for former provision as to contracts for im- provements. (2) Advertisement for bids.— An advertisement for bids which gave no information about the work except by referring to plans and specifications, which were not made until within less than time required for advertising before making bids, was held not valid. Steese v. Ovi- att, 24 O. S. 248, 252. The requirement of proper adver- tisement is designed to protect the taxpayers and is peremptory and [96 v. 42, §59.] without it contract and assessment are invalid. Upington v. Oviatt, 24 O, 8, 232. As to what defects in advertising are covered by a curative act curing technical irregularities, see Wilder v. Cincinnati, 26 O. S. 284, 285; Cincinnati v. Goodman, 5 Rec. 153; Burgett v. Norris, 25 O. S. 308; Taylor v. Wapakoneta. 26 C. C. 285. Forms.—For forms of advertise- ment, bid, etc., in letting of con- tracts, see §§ 4328 et seq. and notes thereto. Procedure.—See further § 4403. Sec. 3834, [When certain special assessments deemed valid and binding.] When special assessments are made upon prop- erty for the construction of an improvement, and several kinds of material have been named in the ordinance, or ordi- nances, providing therefor, and on which bids have been re- ceived for the construction of such improvements with any or all of such materials, such assessments shall be valid and bind- ing assessments upon the property so assessed. In the econ- struction of sewers, excepting main or district sewers,’ notice of the passage of the resolution therefor shall be made in the manner hereinbefore provided. OT ahtulos. § 60. ] vision by dispensing with the re- quirement for personal notice to (1) Validity—tThis section does not violate any constitutional pro- ASSESSMENTS—IMPROVEMENTS ON PETITION. 377 § 3835 sessment attaches to the owners, to making an assessment on their and in such case a notice given property for the cost of construct- by publication is sufficient. ing a main or district sewer, as Thatcher v, Toledo, 22 C. C. (N. no personal liability for the as- S.) 193; 2 Oh. App. 357. resident owners as a prerequisite Sec. 3835. [Council not to proceed with improvement with- out concurrence of three-fourths; exception.]' No public im- provement, the cost or part of cost of which is to be specially assessed on the owners of property, shall be made without the concurrence of three-fourths of the members elected to council, unless the owners of a majority of the foot frontage to be assessed, petition in writing therefor, in which event the coun- cil, a majority of the members elected thereto concurring, may proceed with the improvement ‘in the manner herein pro- vided.” [96 v. 42, § 61.] (1) Old section 2267 R. S., (re- pealed.) § 2267, amended, 95 O. L. 35 (repealed.) (2) How majority deter- mined.—For cases as to determin- ing the majority in petitions for highway improvements, see Burgett v. Norris, 25 O. 8. 308; Campbell v. Park, 32 O. S, 544; Parker v. Bur- gett, 29 O. S. 513. The owner of a corner lot sign- ing for the full length of his side- wise frontage will not be counted for that frontage as against his co- petitioners in determining the ma- jority, although he himself may be estopped. Andrew vy. Auditor, 5 N. Pi123. A city cannot be counted as a pe- titioner because of the fact that an ordinance for the improvement has been passed. Tone v. Columbus, 1 C. C. 305. Verbal declaration in favor of improvement will not be equivalent to signing petition. Tone v, Colum- bus, 1 C. C. 805. Collateral attack.—The finding that the requisite number petitioned for the improvement is not con- clusive of the fact. Corry v. Gay- nor, 22 O. S. 584; Stephan v. Daniels, 27 O. S. 527; Hayes v. Jones, 27 O, 8S. 218; Lima v. Me- Bride, 34 O. S. 338; Anderson v. Commissioners, 12 O. S. 635. Names on separate papers.— Though the names are signed on separate papers, yet if together they constitute the requisite majority, the petition will be sufficient, Bra- den v. Commissioners, 31 O. 8, 386; and petitioners for the same im- provement signing on another paper but asking to be counted as petition- ers will be so counted. Commis- sioners v. Young, 36 O. S. 288; where two petitions ask for prac- tically the same improvement they will be counted together to make up the requisite number. Wame- link v, Cleveland, 40 O. S. 381; but those who signed the petition seek- ing a different kind of improve- ment, which has been abandoned, cannot be added to a new petition to make up the required majority, Makemson vy. Kauffman, 35 O. S. § 3835 444; signers to a petition which was rejected because deemed infor- mal, but where the names were not withdrawn or revoked, and the pe- tition remained on file may be ad- ded to the signers on a second pe- tition to make up the majority. Campbell v. Park, 32 O. S. 544. Defect in petitions.—The fact that one of the petitions was not properly recorded or acted upon will not affect the question of determin- ing the majority of signatures, Braden v. Commissioners, 31 O. S. 386; Campbell v. Park, 32 O. S. 544; nor will the fact that the pe- tition has been addressed to the wrong board. It will be deemed addressed to the body in charge of such matters. Ryan v. Cincinnati, 21 B. 62. Authority to sign.—General manager and secretary of a corpo- ration in the absence of express au- thority appearing, are not author- ized to sign such a petition, Minor v. Board, 20 C. ©. 4; the school board may sign for property under its control, Becker vy. Columbus, 18 C. C. 888; the signature of a widow ratified by all the children was held valid, Corry vy, Cincinnati, 6 N. P. 325; one entitled to dower in the property, but signing before as- signment of dower cannot be count: ed as signer, Corry v. Gaynor, 22 O. S. 584, 594; tenants in common Signing are to be separately count- ed as owners in severalty, Makem- son v. Kauffman. 35 O. S. 444; own- ers of undivided interest may be counted for their proportion al- though all owners did not sign, Tone y. Columbts, 1 ©. @, 305, 308; lessee holding under perpetual lease with privilege of purchase may be counted as owner, Laird y. Cincin- THE OHIO MUNICIPAL CODE. 378 nati, 5 B. 908; Harman v, Colum- bus, 15 Dec. 509; Clemmer vy. Cin- cinnati, 28 C. C. 89; 7 ©. C. (N. S.) 31; so of an owner conveying the fee to secure a loan and having a lease back with privilege of pur- chase, Ib.; so of an agent signing his own name for his principal, Co- lumbus y. Sohl, 44 0. 8. 479 ; those Signing because induced to do so by certain promises of others may be counted. Makemson y. Kauffman, 35 O. S. 444; life tenant may bind the property. Herman vy, Columbus, 15 Dec. 509; 3 N. P. (N. S.) 216. Time of ownership.—Only those signers can be counted who owned the property and signed before the ordinance was passed. Tone v. Co- lumbus, 1 ©. C. 305, 310; Herman v. Columbus, 15 Dec. 509; 3 N, P. (N. S.) 216, Withdrawal. — Signers may withdraw their names at any time before the improvement is ordered. Hayes v. Jones, 27 O. S. 218; Me- Gonnigle vy. Arthur, 27 0. S. 251. But the withdrawal or remon- strance after a city has started with the work and has no longer author- ity to stop it, is not permissible. Columbus v. Slyh, 44 O, S. 484. Where petitioner died before final order to make the improvement, this will not constitute a withdrawal unless his successor in title with- draws the same. Makemson vy. Kauffman, 35 O. S. 444. Change of plan.—Where an im- provement is justified by petition only it will not be valid if the mu- nicipal authorities have changed the work from that petitioned for, such as lengthening or decreasing the part of the street which the petition sought to have improved. Minor v. Board, 20 C. C. 4, } ; : ‘I 4 379 A wholly different improvement from that ordered may be effected as well by substracting from as by adding to it, and stopping the work before completion would result in an improvement which would fail to accomplish the purpose intended by the improvement as asked for. Cincinnati v. Avenue Co., 26 O, S. 345. Burden of proof.—The burden of proof is on those denying that a petition was properly signed and contained a majority. Tone v. Co- lumbus, 1 C. C. 305; 39 O. S. 281. Estoppel by signing petition. —Petitioners for an improvement would ordinarily be estopped from claiming that the assessment ex- ceeded the benefits, or that the law under which the assessment was made was unconstitutional. Murphy ¥. pims.) 274, Co C9885 67 CC: (N. S.) 193; see also Birdseye v. Clyde, 61 O. S. 27; but see Borger v. Columbus, 27 C. C. 812; 6 C. C. (N. S.) 401; Richter v. Norwood, 11 Dec, 801; Hildebrand v. Toledo, 27 C. C. 427; 6 C. C. (N. S.) 450; Shepard v. Barron, 14 O. F. D. 417. The question whether such peti- tioners are estopped to dispute the validity of the proceeding depends generally upon the question of the construction of their petition. Hen- drickson v. Toledo, 23 C. C. 256; 3 C. C. (N. 8.) 355. Where the owner of property abutting on a street in a village signs a petition, with others, to the council of such village, ask- ing for the improvement of such street, under the provisions of Section 3836, General Code, he thereby waives the limitation of assessments for the method of assessmont designated in said pe- ASSESSMENTS—IMPROVEMENTS ON PETITION. § 3835 tition, not, however, in excess of the special benefits conferred on ‘his property by the construction of such improvement. Winchell v. Dennison, 27 O. C. A. 284; 5 Oh. App. 103. If the petition does not agree that the signers shall be assessed certain expenses that they might have a right to contest if they did not so agree, and if they are signing under the belief that council is to pro- ceed under valid laws, they are not estopped to dispute the legality of the proceedings or to contest an invalid assessment. McGlynn v. To- ledo, 22 C. C. 34, (aff'd, 47 B. 712.) But where the property owners in a petition expressly agree that all the cost of the improvement may be assessed upon them they are es- stopped from denying the validity of the assessment even though the as- ‘sessment is otherwise invalid as be- ing, for example, for the cost of lands condemned. Hendrickson v. Toledo, 238 C. C. 256; 3 C. C. (N, S.) 355; Whipple v. Toledo, 7 Cc. Cc. (N. S.) 620; 29 C. C. 42. When petitioners agreed to pay costs of improvement “less that por- tion of corner lots exempted by law,” it was held petitioners could never- theless be assessed the cost of im- provement along entire length of corner lots. Steiner v. Lima, 8 N. P. (N. 8.) 509. No estoppel arises from signing ‘petition, which is referred back to property owners to file a new peti- tion, and signer does not join in new petition. Carlisle v. Cincinnati, 8 CG. CoN. WS) e468, See further as to estoppel same subject under § 3836, post. When petition not necessary. § 3835 THE OHIO MUNICIPAL CODE. 380 —When the requisite three-fourths of council concur in the resolution, etc., the petition of abutting prop- erty owners is not necessary. Jess- ings v. Columbus, 1 C. ©. 90. Resolution awarding contract. —Resolution awarding a contract for the improvement is not within the requirement as to vote of coun- cil given. Cincinnati v. Bickett, 26 O. S. 49; see also Cincinnati v. Avenue Co., 26 0. S. 345. ” FORM OF PETITION BY MAJORITY OWNERS. To the Council of the City Lory Village]: Of... eae State of Ohio: We, the undersigned, owners of the number of feet of property set opposite our names below, the same being a majority of the foot frontage ON oi Moka. as street, between.......... Aud oy ch. tates (here insert termini of proposed improvement), hereby respectfully petition your honorable board to pass the necessary legislation therefor and to improve said street between the points aforesaid by (here describe character of im- provement desired) and that so much of the entire cost and expense thereof as may be lawfully assessed upon the adjacent, contiguous or other specially benefited lots and lands, be assessed by a percentage of the tax value thereof [or “by the front foot,” or “in proportion to the benefits that will result from said improvement”] upon the lots and lands bounding and abutting on said........... street between the points aforesaid, said assessments to be paid in........ annual installments or in cash, at the option of the owner of property assessed, in the manner provided by law for the levy and collection of assessments: Sa ES Es ee Owner. No. of feet front. Lot Number, Norr.—The petition may be made by the owners of a majority of the foot frontage of property in any territory or district that may be assessed for the improvemen The petition need not propose any method of assessment, but it would seem that it may do go. 381 ASSESSMENTS—IMPROVEMENTS ON PETITION. § 3836 FORMS OF RESOLUTION AND ORDINANCES AFTER MAJORITY PETITION. LE RESOLUTION OF NECESSITY. Resolution. Declaring it necessary to improve.......... street, between........... ANG Pees ety eh coche , by (here describe character of improvement petitioned for). Whereas, the owners of a majority of the foot frontage of property on SAS street, between.........and........... (here insert termini of proposed improvement), have petitioned in writing for the improvement of said street, between the points named, by (here describe character vf improvement petitioned for), now therefore. Be it resolved by the council of the city [or village] of................ State of Ohio, Sec, 1. That it is necessary to improve, ete., (from here follow form of resolution under § 3815, ante, making method of assess- ment conform to that petitioned for, if any method is requested in petition.) 2. \ ORDINANCE TO PROCEED WITH IMPROVEMENT. Srna nee NO. ac.s.5 6 tee 8s Determining to proceed with the improvement of........... street, from SESS ce to.............., by (here state nature of improvement). Be it ordained by the council of the city [or village] of................ State of Ohio: Sec. 1. That it is hereby determined to proceed with the improvement Blea ha se. fess SELCCE MEOW. cy siieiciet sys « TORS. 6 ohensbe ioe , by (here insert nature of improvement and character of materials to be used) in accordance with a resolution passed on the...... Gay O07 cad ca At eee , 19..... and the petition of property owners described in said resolution, and in accordance with the plans, specifications, ete., (from here follow form of ordinance to proceed under § 3825, ante, making method of assessment conform to that, if any, petitioned for). 3. ASSESSING ORDINANCE. (Follow form given under § 3825, making method of assessment conform as above.) Sec. 3836. [Improvement on petition of owners of abutting property.]* When a petition subscribed by three-fourths in interest of the owners of property abutting upon a street or highway of any description between designated points, in a municipal corporation, is regularly presented to the council § 3836 THE OHIO MUNICIPAL CODE. 329 for that purpose, the entire cost of any improvement of such street or highway, without reference to the value of the lands of those who subscribed such petition, may be assessed and collected in equal annual installments, proportioned to the whole assessment, in a manner to be indicated in the petition, or if not so indicated, then in the manner which may be fixed by the council. The interest on any bonds issued by the cor- poration, together with the annual installmefts herein pro- vided for, and the costs of such proceedings and assessments, shall be assessed upon the property so improved. When the lot or land of one who did not subscribe the petition is as- sessed, such assessment shall not exceed thirty-three and one- third per cent. of the actual value of his lot or land after improvement is made. The guardian of infants or insane per- sons may sign such petition on behalf of their wards only when expressly authorized by the probate court on good cause shown.? (1) Old sections 2272 and 2305 R. S., repealed. (2) Three-fourths how deter- mined.—Three-fourths in interest is determined by the abutting feet and not by the feet assessable. Mocker v. Cincinnati, 5 N. P. 242. See also Andrew vy. Auditor, 5 N. P. 123; Separate petitions. — When there are separate petitions asking for practically the same improve- ment they may be counted together to make the required three-fourths. Wamelink y. Cleveland, 40 O. S. 381, 386. As to what is practically the same improvement, see Wame- link v. Cleveland, 40 O. S. 381. Conditional signing.—As to ef- fect of signature made on condi- tion that another should pay the as- sessment and the condition not be- ing fulfilled, see Mills v. Norwood, 38 B. 249. The fact that a petition by three- fourths of property owners was en- [107 v. 180; 96 v. 43, § 62.] dorsed “filed until signers agree to pay any deficiency” will not pre- vent its binding the signers. Bush v. Cincinnati, 18 C, C. 605. Authority to sign.—The lessee of a perpetual lease may sign and bind his property to an unlimited assessment, St. Bernard v. Kemper, 60 O. S. 244. So may a trustee with power to dispose of property. Andrew y. Auditor, 5 N. P. 123. But a surviving partner may not sign such a petition. Andrew v. Auditor. Jb, Nor general manager and secretary of a corporation with- out express authority. Minor v. Board, 20 C. C. 4. See further, notes under this reading § 3835, ante. Withdrawal of names.—See note this heading under § 3835, ante. When less than three-fourths sign.—Generally. — A petition signed by less than three-fourths in interest not having been acted upon was held not to be good under a 383 subsequent change of law by which a less number of signers was made sufficient. Hays v. Cincinnati, 62 OQ. 8. 116. Where a petition is signed by less than three-fourths and the signers guarantee the city against de- ficiency in collection from nonsigners such a petition is conditioned on three-fourths signing, and signers are not to be subjected to the ex- tra liability if improvement is made without the necessary signatures. Goodall v. City, 5 N. P. 428; Whip- ple v. Toledo, 7 C. C. (N. S.) 520. The fact that the petition was not signed by the requisite three- fourths will not give one that did sign the right to enjoin the as- sessment or obtain damages. Far- rell v. Cincinnati, 12 C. D. 724. Estoppel to deny frontage.— _ Petitioner stating in the petition the number of feet front of his property, is estopped after work is done to claim that a less num- ber of feet front is assessable. Cin- cinnati v. Manss, 54 O. S. 257; Car- son v. Delhi, 12 ©, D. 723. So a petitioner owning a corner lot and signing for the frontage on the lengthwise side is estopped to resist assessment for the number of feet on that side. Doppes v. Cincinnati, 16 C, C. 188; Frampton v. Sims, 1 N. P. (N. S.) 855; 14 Dec. 271. But such owner is not estopped to claim to be assessed only for the narrow frontage if he did not state the length of the lot in signing the petition, especially where the city had examined the frontage. Gib- son v. Cincinnati, 9 C. OC. 243; Baker v. Schott, 10 C. C. 81. An owner is not estopped to deny the frontage stated in his ASSESSMENTS—IMPROVEMENTS ON PETITION. § 3836 petition if the petition was not signed by the requisite three-fourths. Baker v. Schott, 10 C. C. 81; and such owner is not estopped, if the petition was not necessary to enable the municipality to improve. Ed- wards v. Columbus, 7 N. P. 614, Estoppel to claim limitation on amount.—Where a petition was presented asking that the entire cost be assessed on abutting property, but was not signed by the requisite number, it was held that the signers could be assessed only up to the limitation allowed by the general law, and were not estopped to con- test assessment of entire cost. Hays v. Cincinnati, 62 O. S. 116. See further Storer v, Cincinnati, 4 C. C. 279; Nevin v. Dayton, 4 N. P. 203. Where petitioners agree to pay the entire cost irrespective of the number of signers to the petition they are estopped to assert the statu- tory limitation on assessments. Thornton v. Cincinnati, 4 ©. C. (Ne-S.) 31, Estoppel by signing petition. See Roebling v. Cincinnati, 102 O. S. 460. As to estoppel where signers for such a petition had notice that council intended to exceed the limit and made no objection to the pro- ceeding and permitted council to go on and contract for the improve- ment, see Storer v. Cincinnati, 4 C. C. 279. See further Frey v. Find- lay, 7 C. ©, 311, 326. For other cases on estoppel, see Locke v. Cin- cinnati, 7 N. P. 318; Kemper v. St. Bernard, 14 C. C. 1384; Punshon v. Cincinnati, 27 B. 155, Where petitioners agreed under former statutes to assessment on abutting property to pay costs of appropriating property for a street, § 3836 they were held not estopped to con- test an assessment of the entire cost on the signers, but were liable only for their fair share, considering all the property abutting upon the part of the street improved. Whipple v. Toledo, 7 C..C. (N._S.) 520; 29 C. C. 42. Mortgagee, who becomes owner by foreclosure, is estopped where mortgagor joined in petition. Cin- cinnati, B. D. Co. v. Cincinnati, 30) CO 5 UT S100 SC N.S.) Bd. Irregularity in proceedings.— Persons petitioning for improvement may be estopped to contest assess- ment on ground that council did not proceed in strict accordance with statutory requirements. Johnson v. Cleveland, 18 Dec. 363; 6 N. P. (N. 8.) 183. Jurisdiction acquired. — The city acquires jurisdiction when the petition is presented, and if a signer is then owner, the fact that he af- terwards conveys the property is not material. Laird v. Cincinnati, 5 B. 903. But see Herman vy. Co- lumbus, 15 Dee. 509. A petition becomes absolute when it is acted upon by the municipality. Andrew v. Auditor, 5 N. P. 123. A petition properly signed, filed and attached to another petition will be deemed to have come to the knowledge of council. Squier v. Cin- cinnati, 5 C. C, 400. Council does not lose jurisdiction over petition by reason of delay of two years in acting thereon. Whip- ple v. Toledo, 7 C. CG, (N. 8.) 520. Change of plan.—In making an improvement petitioned for, coun- cil cannot improve more or less of THE OHIO MUNICIPAL CODE. 384 the street than was asked to be improved, or make a wholly different improvement from that requested. Minor v. Board, 20 C, ©. 4. See further, Cincinnati vy. Avenue Co., 26 O. S. 345; McGlynn v. Toledo, 22 ©. C. 34 (aff'd, 47 B, 712); Deuyer v. Shonert, 1 C. C. 73. But additional incidental work, such as a tile drain, deemed neces- sary, may be put in, though not petitioned for. Burke y. Wapa- koneta, 4 C. C. (N. S.) 482; Tay- lor v. Wapakoneta, 26 C. C. 285. But where petitioners designated a particular material, such as brick, it was held council did not have to provide for such material, but might leave to the department of public service the discretion to choose any one of several kinds of material, after receiving bids there- for. Scott v. Hamilton, 12 C. C. (N. S.) 493; 29 C. C. 652. Where manner of improvement was that petitioned for, petitioners cannot enjoin assessment on ground that improvement was im- properly constructed. Breuer v. Gibson, 29 C. C. 266; 14 C. C. (N. S.) 48. As to case where petition does not specify manner of assessment or plan of proceeding, see Whipple v. Toledo, 7 C, C. (N. S.) 520. Assessment cannot exceed value of property.—Where owner signs a three-fourths petition he may be assessed to the full value of the land abutting the improvement, but municipality cannot have a per- sonal judgment for remainder of as- sessment not satisfied. Laird v. Cin- cinnati, 5 B. 903. 385 ASSESSMENTS—IMPROVEMENTS ON PETITION. § 3836 FORM OF PETITION BY OWNERS OF THREE-FOURTHS IN INTEREST. To the Council of the City [or Villaicetmoite itn eet. ¢ , State of Ohio: We, the undersigned, being the owners of the number of feet of prop- erty set opposite our names below, and being three-fourths or more in interest of the owners of property abutting upon............. street, be- RWC Ee Seok ire ashe e ws ATE o et he Ak wie , (here state termini of proposed improvement) respectfully petition your honorable board for the im- provement of said street between the points aforesaid by (here de- scribe character of improvement desired), and that the entire cost of said improvement, except only such portion thereof as is by law charge- able against the municipality, be assessed by a percentage of the‘ tax value thereof [or “by the foot frontage,” or, “in proportion to the benefits that will result from said improvement,”] upon the lots and lands bounding and abutting upon said................ street, between the points aforesaid. And the undersigned and each of them consent and request that said assessments be levied and collected without reference to the value of the property of subscribers hereto, and waive all benefits of the statute limiting assessments to 33 1-3 per cent. of the actual value of property assessed; said assessments to be payable in........ annual installment, pro- portioned to the whole assessment, or in cash, at the option of the owner of property assessed, in the manner provided by law for the levy and collection of assessments: Owner. Number of feet front. Lot Number, Nore.—Although upon petition under § 3836, council is authorized to assess the “entire cost” upon the property of those so petitioning, yet, in view of the words which follow, it appears that the object of the petition is to exclude the petitioners from the benefit of the 33 1-3 per cent. limitation, and not to avoid payment by the municipality of its share under § 3820, or of the cost of property condemned or of damages to property abutting, (when the improvement involves these). But the petition for the improvement may be so drawn as to estop the petitioners from complaining of an assessment which includes even the cost of appro- priating property as well as damages awarded to abutting owners. See Note 1 to § 3896 post, notes on estoppel by petition under § 3835, ante, and Hendrickson vy. Toledo, 3 C. C. (N. S.) 355; 23 C. C. 256. § 3837 THE OHIO MUNICIPAL CODE. 386 FORMS OF RESOLUTION AND ORDINANCES AFTER THREE- FOURTHS PETITION. (These may be adapted from forms given where the owners of a ma- jority of the foot frontage to be assessed petition for the improvement, under § 3835, ante.) Sec. 3837. [Assessment on property of the corporation.]! When the whole or any portion of an improvement authorized by this title passes by or through a public wharf, market space, park, cemetery, structure for the fire department, water-works, school building, infirmary, market building, workhouse, hos- pital, house of refuge, gas works, public prison, or any other public structure or public grounds within and belonging to the corporation, the council may authorize the proper propor- tion of the estimated costs and expenses of the improvement to be certified by the auditor or clerk of the corporation to the county auditor, and entered upon the tax list of all tax- able real and personal property in the corporation, and they Shall be collected as other taxes.? [96 v. 48, § 63.], (1) Old section 2276 R. S., re- property.—Subject discussed un- pealed, (2) School property belonging to the board of education, is not liable for street or sidewalk assess- ments. Toledo v. Board, 48 O. S. 83; Board v. Toledo, 48 O. S. 87; Board v. Auditor, 35 B. 294. Lien of assessment not defeated by subsequent purchase by Board of Education for school purposes. Board of Education v. Bowland, 15 Dec. 334; 3 N. P. (N. S.) 122. der former laws in Dick vy. Toledo, 11 C. C. 349. This section applies only when the improvement either passes through the public ground or the public ground abuts upon the im- provement, and does not require deduction of assessment because of the proximity of a public park not abutting upon the improvement. Close v. Parker, 30 C. C. 384; 11 C. C. (N. S.) 85 (aff’d, 79 O. S. Assessments on municipal 444). STREET IMPROVEMENTS. Sec. 3838. [Expense of changing established grades; how paid.]* When a street, alley, public highway, wharf, or land- ing, within the corporation is graded or pavements are con- structed in conformity to grades established by the authorities of the corporation, and the expense is assessed on the lots or lands benefited, the owners shall not be subject to any special assessment occasioned by any subsequent change of grade in 387 ASSESSMENTS—SPRINKLING, CLEANING, ETC. § 3839 such pavement, sidewalk, street, alley, public highway, wharf, or landing, unless a petition” for such change is subscribed by a majority of the owners of such lots or lands. The expense of improvements occasioned by such change of grade, not so petitioned for, shall be chargeable to the general fund of the corporation.* [96 v. 48, § 64.] (1) Old section 2301 R. S. (2) Petition.—For cases relating to signing of petition, etc., see notes ters cannot be included in the as- sessment on abutting property for change of grade. McGlynn vy. To- to §§ 3835 and 3836, ante. Where change of grade is peti- tioned for the cost of lowering water pipes may be included in the assessment. See Op. Atty: Gen. (1920), p. 869. ledo, 22 C. C. 34, (aff’d, 47 B. 712)« But if owners petitioning ask that all expenses be assessed on them whether they will be estopped to dispute assessment to pay such dam- ages, see Hendrickson v. Toledo, 23 (3) Damages awarded abut- C. C. 256; 3 C. C. (N. S.) 355. Sec. 3839. [Sprinkling, sweeping and cleaning streets. ]* Municipal corporations may sprinkle with water, sweep, and clean any streets or alleys, or parts thereof. All such work may be done by contract or by and through the officers of the corporation. Before such work shall be done by or through such officers, the council thereof shall pass an ordinance au- thorizing the officer or officers having the care of streets and alleys to purchase or rent the necessary tools, machinery and appliances, to employ the necessary labor, and to do such work.? (1) Old sections.—For former provisions see §§ 2307 to 2312 R. S., inclusive (repealed). Other provisions—By other provisions, power is given cities and villages through council. director of public service and, street commis- sioner to improve, light, clean and sprinkle streets, make contracts therefor and pay the expense by levy of taxes. (See §§ 3714, 4325, 4364, 3784). Special provision is made also ($$ 8745-3748) for sprinkling streets upon petition of electors. [98 v. 78, § 65; 97 v. 163; 96 v. 43, § 65.] Under § 3812 the cost of any of these things, including the cost of planting shade trees, may be paid for by special assessment. (2) When work done by mu- nicipality.—Specifications need not be prepared, as in case where work is let by contract. Andrix v. Co- lumbus, 15 Dec. 672; 3 N. P. (N. S.) 368; (51 B. 227). May not purchase street flusher out of current appropriation. Op. Atty. Gen. (1918), p. 1320. § 3840 THE OHIO MUNICIPAL CODE. 388 Sec. 3840. [Commissioners of streets and alleys.] In cities, the director of public service may appoint two electors, owners of real estate abutting on each street or alley, or part thereof, who shall act as commissioners for such street or alley, or part thereof, and who shall serve without compensation. The com- missioners shall be appointed for the term of five years, or until their successors are appointed, and any vacancy may be filled by the director by the appointment of a qualified person, [98 v. 78, § 65; 97 v. 163; 96 v. 43, § 65.] Sec. 3841. [Duties of commissioners.] Within ten days af- ter such appointment, and in each year thereafter at such time as the director of public service requires, the commissioners shall file with him a written statement of the sprinkling with water, sweeping, or cleaning, that in their opinion will be nec- essary to be done upon such street or alley, or part thereof, within any period between the first day of January and the thirty-first day of December of the year for which such state- ment is filed. From the statements so filed and from such other information as may come to his knowledge, or upon failure of the commissioners to file such statement, the director of public service may determine and recommend to the eounceil, as provided in the next section, what work is necessary to be done, upon such streets or alleys, or parts thereof, within any such period. [98 v. 78, § 65; 97 v. 163; 96 v. 43, § 65. ] Sec. 3842. [Ordinance for sprinkling, sweeping and clean- ing.] The council of a city upon the recommendation of the director of public service, or the council of a village, may pro- vide by ordinance for sprinkling with water, sweeping, or cleaning of such streets or alleys, or parts thereof. For the purpose of carrying out the provisions of this section and of the three next preceding sections, one ordinance may be made to include one or more streets or alleys, or parts thereof, and one or more of the powers granted by such sections. [98 v. 79, § 66; 97 v. 163; 96 v. 44, § 66.] Sec. 3842-1. [Street lighting may be assessed upon abut- ting property; procedure.]' When a petition signed by three- fourths in interest of the owners of property abutting upon 329 ASSESSMENTS—SPRINKLING, CLEANING, ETO. § 3842-2 any street, avenue or other public place or any part thereof, is presented to the council or other legislative body of any municipality for the improvement thereof by an improved system of lighting commonly known as boulevard or white way lighting, to be paid for in whole or in part by special assessments upon the adjacent, abutting or specially bene- fited property, the legislative authority of such municipality may provide by ordinance for such system of lighting, and in a separate ordinance for the levy and collection of special assessments therefor. For the purpose of carrying out the provisions. of this section and of the two next succeeding sec- tions, one ordinance providing for such system of lighting and one ordinance providing for the assessments may be made to include one or more streets, avenues or public places or parts thereof. [108 v. 1224.] (1) Ornamental lighting.—§§ 3812 and 3842-1 et seq., General Code, so far as they relate to the subject of street lighting improvement, are in methods for initiating such improve- ment, and, since there was no ex- press repeal of the former statute in that respect, there was no repeal thereof by implication. Leipsic v. Wagner, 105 O. 8S. 466. pari materia and are not irrecon- cilable; they furnish concurrent Sec. 3842-2, [Notice of passage of ordinance.] Notice of the passage of any such ordinance providing for such system of lighting shall be given the owners of lots and lands to be _assessed for the payment of the cost and expenses of such system of lighting, by publishing the ordinance in the man- ner provided for the publication of ordinances by section 4228 of the General Code, and no other or further notice shall be required. [108 v. 1224, 1225.] Sec. 3842-3. [Percentage of cost fixed by ordinance; con- tract; installments; collection; issue of bonds or certificates of indebtedness.] The Aisiiall shall, in the ordinance pro- viding for such system of: lighting, determine and fix the percentage of the whole cost and expense to be assessed upon the abutting, adjacent or other specially benefited property and to be paid by the owners thereof, and the remaining percentage shall be paid by the municipality, and such por- tion of the cost to be specially assessed, whether such system of lighting be done by contract or through the officers of the § 3842-3 THE OHIO MUNICIPAL CODE. 390 municipality, shall be by ordinance assessed upon the abut- ting or other specially benefited property by one of the methods provided for in the first section of this chapter. Any such ordinance providing for such system of lighting shall determine the general nature of the lighting and shall approve the plans, specifications and estimates therefor, which shall be on file when the ordinance is passed, in the case of a city with the clerk of its municipality and in the case of a village with the village clerk, and said ordinance shall determine the method by which the assessments shall be made and in how many installments they shall be paid. The assessments so levied may be collected in one or more installments in the manner provided in the case of assess- ments for street improvements, and the legislatve body may levy and provide for the collection of such assessments at any time before or after the completion of such system of lighting. Any such assessing ordinance may be made to include the property specially benefited by such system of lighting and may include property abutting upon any one or more streets, avenues or public places or parts thereof lighted. Bonds, notes or certificates of indebtedness may be issued and sold before or after such system of lighting is done in anticipation of the levy or collection of such assess- ments, as may be authorized and provided for in the assess- ing ordinance or in a separate ordinance, but no publication of such assessing ordinance or of the ordinance authorizing and providing for such notes, bonds or certificates of indebt- edness shall in any case be required. If any person objects to an assessment, he shall file his objections in writing with the clerk within two weeks after the date of taking effect of such assessing ordinance, and thereupon the legislative body shall appoint three disinterested freeholders of the corporation to act as an equalizing board. On the day ap- pointed by the legislative body for that purpose, the equal- izing board, after taking an oath before the proper officials to honestly and impartially discharge their duties, shall hear and determine all objections to the assessments. and shall equalize as they think proper, which equalized assess- ments they shall report to the legislative body which may confirm or set the same aside and cause new assessments 391 ASSESSMENTS—SPRINKLING, CLEANING, ETC. § 3843 to be made, and appoint a new equalizing board possessing the same qualifications, which shall proceed in the same manner above provided. [Assessment a lien.] When the assessments are confirmed by the legislative body, they shall be complete and final and shall be recorded in the office of the clerk. Every assessment shall be a lien on the lands charged from the time the legis- lative body determines the amounts assessed against each parcel of land; and the clerk shall certify such assessments to the county auditor to be placed upon the duplicate for collection by the treasurer as and in addition to other taxes. [108 v. 1224, 1225.] Sec. 3843. [Notice to owners of lots and lands.] Notice of the passage of such ordinance’ shall be given the owners of lots and lands to be assessed for the payment of the cost and expense of the work provided for therein, by publishing the ordinance at least once in a newspaper published and of gen- eral circulation within the corporation and no other or further notice shall be required. [98 v. 79, § 66; 97 v. 163.] (1) Thisand the three following sprinkling and cleaning, as pro- sections refer to proceedings for vided in § 3842. Sec, 3844. [Assessment of costs and collection thereof.] The entire cost and expense connected with any such work in any year, except as herein provided, whether done by contract, or by and through the officers of the corporation, may, by or- dinance, be assessed upon the abutting or other specially bene- fited property, and by any one of the methods mentioned in the first section of this chapter. The assessments so levied may be collected in one installment in the manner provided in the case of assessments for street improvements, but if it deems expedient the council may levy and collect such assess- ments, at any time, before or after the completion of the work. Such assessing ordinance may be made to include the property abutting upon any one or more streets or alleys, or parts thereof, and one or more of the powers granted in the pre- ceding five sections. [98 v. 79, § 67; 97 v. 164; 96 v. 44, § 67.] § 3845 THE OHIO MUNICIPAL CODE. 392 Sec, 3845. [Bonds may be issued and sold.]! Bonds, notes or certificates of indebtedness may be issued and sold before or after doing such work in anticipation of the levy or collee- tion of such assessments, and may be authorized and provided for in the assessing ordinance, or in a separate ordinance, but no publication of such assessing ordinance or of the ordinance authorizing and providing for such notes, bonds and certifi- cates of indebtedness shall in any ease be required. [98 v. 79, § 67. ] (1) Cannot issue bonds to pur- Bonds issued under this section chase a street flusher. Op. Atty. are not subject to the requirements Gen. (1918), p. 1320. of § § 2295-9 and 2295-12. Op. Atty. Gen: (1922) 1 pente7; Sec. 3846. [City may pay part of cost.] No part of the cost and expense connected with such work shall be paid by the municipal corporation, except when the whole or any portion of a street or alley upon which work shall be done passes by or through a public wharf, market space, park, cemetery, structure for the fire department, waterworks, school build- ing, infirmary, market building, workhouse, hospital, house of refuge, gas works, public prison, or any other public struc- ture or public grounds within and belonging to the corporation, and, subject to the limitation hereinbefore imposed in this chapter,’ the council may authorize the proper proportion of the estimated cost and expense of such work to be certified by the clerk of the corporation to the county auditor and en- tered upon the tax list of all taxable real and personal prop- erty in the corporation, and they shall be collected as, and in addition to, all other taxes. The right of the corporation to levy such assessments shall not be affected by the tax valuation of the property to be assessed or by the amount of assessments theretofore levied upon such property. [98 v. 79, § 67. ] (1) Limited to benefits. — In the case of sprinkling, cleaning and repairing streets, the work may not enhance the market value of the property, and yet there would be a benefit, within the meaning of the assessment laws, because its value for use by the owner would be en- hanced. Andrix yv. Columbus, 15 Dec. 673; 3 N. P. (N. S.) 368 (51 B. 227). See also Walsh v. Sims, 65 O. S. 211, 217. ee a q 393 ASSESSMENTS—ACCORDING TO BENEFITS. § 3847 Sec. 3847. [Appointment of board to report estimate of assessments.'] When it is determined to assess the whole or part of the cost of an improvement in proportion to the benefit which may result therefrom, as provided for herein, the coun- cil may appoint three disinterested freeholders of the corpora- tion to report to it the estimated assessment of such cost on the lots and lands to be charged therewith, in proportion as nearly as may be, to the benefits which may result from the improvement to the several lots or parcels of land so assessed, a copy of which assessment shall be filed in the office of the clerk of the corporation for public inspection.” (1) Old section 2277 R. S., re- pealed. Assessments by benefits.—The above section, together with §§ 3848, 3849 and 3850 following, and § 3895 under the sub-head “Collection of Assessments,’ relate to assess- ments by benefits. See note un- der § 3895, post, as to application of that section to other assess- ments. (2) Necessity for board.—Un- der old § 2277 R. S. it was held that, if council determines to assess the cost of an improvement, not only on such lots and lands as abut on the improvement, but on such adja- cent and contiguous or other prop- erty designated therein as benefited, in proportion to benefits, the amount of the assessment on such property cannot be tixed by council by the front foot, but must be fixed and de- termined in the first instance by the board of freeholders. It was held that old § 2277 R. S. must be read in connection with old § 2264 R. S. (now § 38812 G. C.); Klein v. Cin- cinnati, 7 C. C. 266, (52 O. S. 650). Apportionment.—Such part of the cost may be assessed as is equiv- alent to the special benefit, but it [96 v. 44, § 68.] must not exceed the benefit. Cham- berlain v. Cleveland, 34 O. S. 551. The assessing committee need not determine the total excess of bene- fits over amount of assessment, be- fore apportioning the assessment, It is sufficient if, in the case of each lot, the assessment does not exceed the benefit and the lot bears only its just proportion of the total as- sessment. Blair v. Cary, 24 C. C. 560; 20, OC. (N.°S.) 26. Irregularities in the proceedings by which the amount to be assessed on each lot was obtained will not invalidate the assessment, if a just result was reached. The committee need not proceed in any prescribed manner. Ib. A street assessment levied on the benefit plan will be presumed to have been correctly levied where the report of the estimating board was confirmed without ex- ception; and abutting owners seeking a reduction of the assess- ment as to their lots on the ground that it should have been laid by the front foot plan will not be heard. Funk v. Cincin- nati, 2b Ne Ps CNS.) 18. The presumption that members of an estimating board did their duty § 3847 will not obtain as to duties not re- quired of them, and it will not be presumed that they estimated and apportioned special benefits, but this must affirmatively appear of record. Hill v. Cleveland, 2 Clev. 385. Review of proceedings of a board estimating assessments, see Cordes v. Brooks, 18 C. C. 801; Toledo v. Ford, 20 C. C. 290; Price v, Toledo, 25 C. C. 617;-4 C. C. (N. S.) 57; Benham v. Cincinnati, 26 C. C. 17. THE OHIO MUNICIPAL CODE. 394 Under former statutes——Other cases, under former statutes on this subject, see Krumberg v. Cincinnati, 29 O. S. 69; Meissner v. Toledo. 31 O. S. 387; Glenn v. Waddel, 23 O. S. 605. And see Cincinnati v. Batsche, 52 O. S. 324. Notice of assessment must be published. See § 3895, post, and note thereunder. Office of city clerk. See § 4210 and note (3) thereunder. ORDER OF PROCEDURE FOR ASSESSMENTS BY BENEFITS. 1. Follow “order of procedure,” given under § 3814, ante, from “1” to ““10,’” inclusive. 2. Resolution appointing estimating board. (§3847.) 3. Report of estimating board. (§ 3847.) 4. Notice of assessment made by estimating board, to be published. (§ 3895.) 5. Objections filed by property owners assessed. (§ 3848.) 6. Resolution appointing equalizing board and fixing a day for hearing objections, if any objections have been duly filed. 7. Hearing of objections, if any duly filed. (§ 3850.) 8. Report of equalizing board. (§§ 3848, 3849, 3850.) (§ 3850.) 9. Assessing ordinance, confirming report of equalizing board, or adopt- ing assessment made by estimating board (in case no objections thereto have been filed) and otherwise in same form as assessing ordinance under § 3825, ante. 10. Ordinance to issue bonds in anticipation of collection of assessments. (§ 3914.) No publication of this ordinance required. (§ 3914.) For form of ordinance see § 3825. Form of bonds, see § 3939. FORM OF RESOLUTION APPOINTING ESTIMATING BOARD. Resolution. Appointing board to report estimated assessment to pay the cost and expenses of improving oe e 6.6 8 Shs grata ene see Whereas, it has been determined by council to assess the whole cost less 1-50 thereof and the cost of intersections er ge Le ay per cent. of the whole cost, less the cost of intersections”] of the improvement of treeeeesees... Street, from Mane hey gees in proportion to the bene- fits which may result from said improvement. Now therefore: Be it resolved by the council of the city [or village] of State of Ohio, that 395 ASSESSMENTS—ACCORDING TO BENEFITS. § 3847 ested freeholders of said city [or village] be and they are hereby appointed a board to estimate the assessment of such cost on the lots and lands to be charged therewith as set forth in an ordinance No........ to improve said street, passed........... , 19...., in proportion as nearly as may be to the benefits which may result from the improvement to the several lots or parcels of land so assessed and to report to this council the said estimated assessment. ; IASBEU THANE oeeetn chelate take, 4 OO aoe ee LO are 3 Eee ceene amen sey ee, RRR, TIM RT RINE PRT as eel Se ot ee To the Council of the City [or Village] of........... The undersigned, an estimating board, appointed and acting in pur- suance of your resolution, passed on the........ AY" OF erect Per ers erase respectfully report the following estimated assessment of the cost and expenses of improving..... ly reereete trom. 60. COGAN si Meeh Laake ; upon the lots and lands to be assessed in accordance with Ordinance No. ean aes to improve said street, passed on the.....day of.........,19....: Assessment. Owner. | Description of Property. | Frontage and Depth. | Dollars. | Cents. The above assessments are in proportion to the benefits which will resultt to such lots and lands from said improvement, and are limited as to each lot and parcel by the special benefit conferred thereon. er Estimating Board. (A copy of the above report must be filed in the office of the clerk of the city council or village clerk for public inspection.) § 3848 THE OHIO MUNICIPAL CODE. 396 FORM OF NOTICE OF ASSESSMENT, legal Notice. Notice is hereby given that the estimated assessment of the cost of im- PrOVING 3%. i357 yee street, Aromy . pict selec €0 presi Fear a, . by (here insert character of improvement), on the lots and lands benefited and to be charged therewith as set forth in a resolution No............. , to improve said street, passediiys et A 4 Be , 19...., has been made and reported to council and said estimated assessment is now on file in the office of the clerk of council of the city’ lor willagel of. h.0 4/22.) ee , LOR: the inspection and examination of all persons interested therein, By order of the Council of the City [or Village] of ee OR a yr a Oy © 9 Sho bees, lege tine Use 4\e obese Sec. 3848. [Equalizing board, where objections are filed.] If any person objects to an assessment, he shall file his objec- tions, in writing, with the clerk, within two weeks after the expiration of such notice,! and thereupon the council shall ap- point three disinterested freeholders of the corporation to act as an equalizing board. [R. S. Sec. 2279; 66 v. 249. | (1) Notice.— The notice here referred to is that provided in § 3895 G. C. sessment, where the ground of the injunction is that no benefit what- ever has been conferred by rea- Failure to object.—Failure on the part of an owner of property to file objections to a proposed assessment for a street improve- ment under the benefit plan un- der the provisions of § 3848, does not bar him from bringing an action under §12075 to enjoin the collection of such as- son of the improvement upon the lands so assessed. Cormany v. Cincinnati, 26 C. OC. (N. 8.) 140; 7 Oh. App. 179; or where the provisions of the law relating to assessment in proportion to bene- fits have been clearly violated. Kelly v. Cincinnati, 28 O. C. A. 376; 6 Oh. App. 466. FORM OF RESOLUTION APPOINTING EQUALIZING BOARD. Be it resolved by the council of the city [or village] of 110.15 (cw. ajense ale ee State of Ohio, two-thirds of the members of council concurring, holders of said city [o as an equalizing bo 3 ce tate. Se and Biers tale wrk , three disinterested free- r village] be, and they are hereby appointed to act ard to hear all objections to the estimated assessment heretofore reported to council by the estimating board appointed under a resolution passed on the improving PE Aas ce) day of eSNG A ae street, from.... -., of the cost of et re to..........and to equalize the same as to them seems proper, in accordance with law. ee eee 397 ASSESSMENTS—ACCORDING TO BENEFITS. § 3849 Said board shall meet for the above purpose at........ (insert place) OW THEW Ss. Cay. OF PATE Ae 19...., at....M., and upon the completion of such equalization shall report such equalized assessment to council. PASBed Kia reraae castes See at 8 ees Attest Sieh eKete Tome iw) 0) se] ee, ¢ ie) lp win, ioe) whe ie. President of Council. Sec. 3849. [Appointment of equalizing board.] A concur- rence of two-thirds of the members of the council shall be necessary to appoint the equalizing board and to confirm its assessment. [R. 8. Sec. 2282; 66 v. 249.] Sec. 3850. [Equalization of assessments.]! On a day ap- pointed by the council for that purpose, the equalization board, after taking an oath before the proper officers, to honestly and impartially discharge their duties, shall hear and determine all objections to the assessment, and shall equalize it, as they think proper, which equalized assessment they shall report to the council, which may confirm, or set it aside, and cause a new assessment to be made and appoint a new equalizing board possessing the same qualifications, which shall proceed in the manner above provided.?, When the assessment is confirmed by the council it shall be complete and final, and shall be recorded in the office of the clerk of council. [96 v. 44, § 69. ] (1) Old section 2280 R. S., re- pealed. (2) Notice of time of meeting of board or of filing report need not be given. Chamberlain y. Cleveland, 34 O. S. 551. Power of board.—Board cannot add to or reduce total amount of assessment reported, except that it may add compensation for services of board. Chamberlain v. Cleveland, 34 O. S. 551. See also notes under § 3847, ante. Sec. 3851. [Assessment, lien on land charged.] Every such assessment shal! be a lien on the lands charged from the time the council determines the amount assessed against each parcel of land.! (1) Application of section.— While the location of the above sec- tion indicates that it refers to as- Ssessments by benefits, it is to be [R. S. See. 2313; 66 v. 221.] noted that the original section 2313 R. S., of which the above section is a revision, related only to assess- ments for the sprinkling of streets. § 3852 THE OHIO MUNICIPAL CODE. 398 It followed section 2312 RS., pro- land charged.” Section 2313 R. S. viding for assessments for the was not re-enacted in the Municipal sprinkling of streets and the head- Code of 1902 nor was it expressly note of section 2313 was: ‘“Assess- repealed. ments for sprinkling, ete., lien on Sec. 3852. [Expense of collecting to be added to assess- ment.]* In placing such assessment on the tax-list, the county auditor is required to add to each assessment such per cent as he deems necessary to defray the expenses of collecting it. [R. S. See. 2314; 66 v. 222.] (1) Application of section.— to assessments for the sprinkling of Section 2314 R. S., of which the streets. It followed section 2313 R. above section is a revision, related S. See note to section 3851, ante. Sec. 3852-1. [Special assessments for boulevards, park- ways, etc.] | Each municipal corporation shall have special power to levy and collect special assessments for the follow- ing improvements, to be exercised in the manner provided by law. Any municipal corporation may assess upon the abutting, adjacent and contiguous or other specially bene- fited lots or lands in the corporation, any part not to ex- ceed fifty per cent of the entire cost of an expense connected with the constructing or improving of any boulevard, :park- way or park entrance by any of the following methods: 1. By a percentage of the tax value of the property as- sessed. 2. In proportion to the benefits which may result from the improvement. 3. By the foot front of the property bounding and abut- ting on the improvement. [106 v. 308. | Sec. 3852-2. [Proceedings for levying and collecting.] Proceedings for the levying and collecting of any such sgpe- cial assessments, including the issuance and sale of bonds in anticipation of the collection of such Special assessment, shall be as provided by law for the levy and collection of special assessments and the issuance and sale of bonds in anticipation of the collection of guch assessments, for street improve- ments; provided that, in municipal corporations which may have established a board of park commissioners, resolutions 399 ASSESSMENTS—BOULEVARDS, PARKWAYS, ETC. § 3852-3 of necessity, and determinations to proceed with the improve- ments, the making of the assessments and letting of contracts, the appointment of estimating and equalizing boards in cases of assessments in proportion to benefits, the authorizing for the issuance and sale of bonds in anticipation of the levy or collection of such assessments and all other steps and pro- ceedings preceding or relating to the levy of such assessments shall be adopted, passed, made, taken or performed by such board of park commissioners, and such boards are hereby granted full power to adopt, pass, make, take and perform all such resolutions, steps and proceedings, and in such mu- nicipal corporations, the plans, specifications and estimates shall, at the time of the passage of the resolution of necessity, be on file in the office of said board and notice of such resolu- tion shall be served by said board on any person or persons designated by it for the purpose and objections to assess- ments and property-owners’ claims for damages shall be filed with the clerk or secretary of said board and said board shall determine whether claims for damages shall be judi- cially inquired into before commencement or after comple- tion of the improvement, and, in general, all steps required by law to be taken by or with the clerk of council shall, as regards said improvement in said municipal corporations, be taken by or with the clerk or secretary of such board of park commissioners. [106 v. 308.] Sec. 3852-3. [Limitations; credit of collections.] Assess- ments for the above purpose shall be subject to the limita- tions provided by law for assessments for street and other improvements. All collections made pursuant to this act, shall be credited by the city auditor to the respective im- provements. [106 v. 308.] Sec. 3852-4. [Improvement of park boulevards lying within or adjacent to municipality; apportionment of costs and ex- penses; issue of bonds.] Whenever a park boulevard extends from a municipality to which it belongs into or adjacent to one or more other municipalities and it is desired by the sev- eral municipalities so situated to improve said boulevard by grading, draining, curbing, paving or repaving, surfacing or resurfacing, or otherwise improving said boulevard, it shall § 3852-5 THE OHIO MUNICIPAL CODE. 400 be lawful for the several municipalities so interested in said boulevard to apportion the cost of such improvement between the municipalities so interested in such manner as the coun- cils of the several municipalities may agree upon, and the amount so agreed upon to be borne by each municipality may be defrayed out of the general fund of such municipalities, or by the issue of bonds, provided, however, that where such boulevard adjoins private property abutting thereon, and benefited thereby such private property may be assessed a portion of the cost of such improvement by the municipality in which such property is situated in the same manner and to the same extent and subject to the same limitations as is provided for the levying and collection of special assessments for street improvements. [109 v. 335.] Sec. 3852-5. [Bond issue in anticipation of assessments.] In the event that a part of the cost of such improvement is to be specially assessed upon the abutting property the mu- nicipality in which such property is situated may issue bonds in anticipation of the collection of such assessments in the same manner in which bonds are authorized to be issued and sold in anticipation of the collection of special assessments for the improvement of streets and highways. [109 v. 335. ] Sec. 3852-6. [Contract and supervision of work.] That the amount so agreed to be paid by the municipalities in which or adjacent to which said park boulevard may be situated shall be paid to the treasurer of the municipality owning such park boulevard and the contract shall be let by and the work shall be done under the supervision of said municipality so owning said park boulevard in the same manner as is pro- vided by law for the letting and execution of contracts for the improvement of streets in such municipality. [109 vy. 335.] SIDEWALKS AND GUTTERS. Sec. 3853. [Construction and care of sidewalks.]! The council of municipal corporations may provide by ordinance? for the construction and repair of necessary sidewalks, curbing, or gutters, or parts thereof, within the limits of the corporation, and may require by imposition of suitable penalties or other- a 401 ASSESSMENTS—SIDEWALKS. § 3853 wise, the owners and occupants of abutting lots and lands to keep the sidewalks, curbing and gutters in repair, free from snow or any nuisance.* (1) Old section 2328 R. S., re- pealed. (2) Sidewalk ordinance is of general nature and must be read on three different days. See note (1) under § 4224, post. Council having passed a general ordinance for improvement of side- walks, no special ordinance for any particular sidewalk is required, in order to assess abutting owner. Westenhaver v. Hoytsville, 28 C. C. 357. (3) Validity.—It is not uncon- stitutional to impose upon lot own- ers the duty of making sidewalks. Bonsall v. Lebanon, 19 O. 418. Scope of power.—Council may prescribe by resolution that por- tion of a street which shall be used as a sidewalk. Cox v. Lancaster, 24 C. C, 265; 2 C. C. (N. S.) 218 ' (aff’d, 69 O..S. 576); and council may narrow sidewalks already con- structed without compensation to abutting owner. Anderson v. Co- lumbus, 1 N.:P. (N. S.) 541; 14 Dec. 180; but where an abutting owner has constructed a sidewalk in conformity with an established grade, council cannot compel him to remove the sidewalk and con- struct on a higher level to con- form to existing sidewalks con- structed by other owners. McGuire v. East Cleveland, 1 C. C. (N. 8.) 435; 25 C. C, 497. As to reasonableness of ordinance requiring sidewalk on one side only and assessing owners on both sides, see Mills v. Norwood, 6 C. C. 305, and § 3867, post. It is an abuse of discretion for [97 v. 123, § 70; 96 v. 45, § 70.] council to compel owner to change sidewalk in good repair from brick to cement, while permitting other owners on the same square to main- tain brick walks. Detmers v, Co- lumbus, 15 Dec. 212; 2 N. P. (N. 8.) 657; Livingston v. Cincinnati, 22 C. u. (N. 8.) 383; 4 Oh. App. 338; 28 OC. D. 514, Lhe power to determine when it is necessary to improve or re- pair a sidewalk is vested in the council of a city, but this power cannot be exercised in an arbi- trary manner regardless of the public necessity or the rights of the property owners. ) NoePa (Ny 8s) .nrss8; 20 Dec. 333. ‘Discretion of council upheld. Mitchell v. Cincinnati, 21 N. P. CNi08s) 5 2153 Where lot owner has planted shade trees in portion of street designated for sidewalks, his property right in the trees is subject to the right of the municipality to improve the street, even though such improve- ment destroys the trees. Jb. Construction of sidewalks some feet below present grade of inter- secting street, but on level with § 3853 proposed grade, does not invalidate assessment. Huddle v. Madisonville, 13°C. .C, (N..8.) 61; 32,C. GC. 308. Procedure.—See on subject of proper procedure under § 3853, et seq., Meek v. Collinwood, 30 C. C. 63; 10 C. C. (N. S.) 9; Westen- haven v. Hoytsville, 28 ©. C. 357; SC CoN ssa: Injunction denied.—Where no ac- tion has been taken except by the passage of an ordinance under this section, injunction will not be al- lowed. Ry. Co. v. Hartford, 15 Ohio App. 305. Curbing.—Whether curbing is a part of a street improvement or a sidewalk improvement, is a ques- tion of fact to be determined from THE OHIO MUNICIPAL CODE. 402 all the circumstances. Ehni v. Co- lumbus, 3 C. C. 494. Subsequent assessment for gen- eral improvement.—See note to Sec. 3812, ante. Municipal liability for failure to keep sidewalks free from nuis- ance, see notes under §3714, ante. Liability of abutting owner.— Violation by owner of municipal ordinance enacted under this see- tion compelling the removal of snow and ice from sidewalk, does not form the basis for a cause of action by one who fell and was injured. Steinbeck v. Brewing Co., 26 C. C. (N. 8.) 283; 7 Oh. App. 18. ORDER OF PROCEDURE IN SIDEWALK IMPROVEMENTS. 1. Council may pass a General Ordinance for the consti uction, repair and keeping in repair and free from snow or other nuisance of all side- walks in the corporation. (§ 3853.) Such ordinance would be governed by §§ 4325, 4328, 4221, and 4364, with respect to the supervision of work and the letting of contracts. 2. Resolution to construct or repair certain specified sidewalks (where © cost is to be paid by abutting owner) passed by council. § 3854, 3. Notice to owner or agent of the passage of said resolution; served as summons in a civil action, or if such owner is a nonresident, or if neither such owner nor agent, nor their place of residence can be found, then publication of a copy of said resolution, as street improvements reso- lutions are published. (See § 3814, ante.) §$ 3854, 3855, 3856. 4. Work to be done by municipality at owners’ expense, if such side- walks are not constructed within fifteen days or repaired within five days from service of notice or completion of publication. §§ 3857, 3859. The supervision of such construction or repair and the letting of contracts therefor would be governed by §§ 4325, 4328, 4221 and 4364. 5. Assessing Ordinance to pay cost of constructing or repairing side- walks under §§ 3857, 3859, or the cost of constructing sidewalks and issuing bonds therefor under §§ 3864 and 3865, levying assessments therefor in any of the methods provided for street assessments. Such assessing ordinance would be governed by the limitations of §§ 3819 and 3820. (Norwood v. Bldg, Ass’n, 7 ©. C. 95; Cincinnati v. Connor, 55 O. S. 82.) 6. Sidewalks constructed as street improvements. The special method given in §§ 3854, 3861, 3864 and 3865, for the construction and repair of sidewalks, and outlined in the order of procedure from 2 to 5 in- ASSESSMENTS—SIDEWALKS. 403 § 3854 elusive, above, does not seem necessarily to exclude the exercise of the general authority given in § 3812 e¢ seq. to the councils of all municipal corporations to improve streets “by constructing sidewalks” along the same, and to assess the cost thereof as in other cases of street improve- ments. (See Westenhaver v. Hoytsville, 28 C. C. 357; Baldwin v. Spring- field. 10 N. P. (N. 8S.) 65; 20 Dec. 265.) Sec. 3854. [Notice to construct or repair sidewalks; re- turn.]’ When the council of a municipal corporation de- clares by resolution? that certain specified sidewalks, curbing or gutters shall be constructed or repaired, the clerk of coun- cil shall cause a written notice® of the passage of such resolu- tion to be served upon the owner or agent of the owner of each parcel of land abutting on such sidewalk, who may be a resi- dent of the corporation, in the manner provided by law for the service of summons in a civil action, and shall return a copy of the notice with the time and manner of service in- dorsed thereon, signed by the officer serving it, to the director of public service in cities, and to council in villages which shall file and preserve it. (1) Old section 2329 R. S., re- pealed. (2) Resolution ordering side- walk in front ofa piece of property was held to be of a permanent na- ture and to require three readings. Thatcher v. Toledo, 19 C. C. 311. If not so read, the construction of the sidewalk by city and assessment on owner who did not construct as or- dered, will be invalid. 7b. And see Cincinnati v. Johnson, 17 C. C. 291. (3) Necessity for notice.—City has no power to make the sidewalk itself unless the property owner has_ been notified and has had an oppor- tunity to make it. Hunt v. Hunter, 11 C. C. 69. If the notice is not given, the assessment for construct- ing is wholly void. Schmidt v. Elm- wood Place, 15 C. C. 351; Hunt v. Norwood, 20 N. P. (N. 8.) 437. Character of notice.—The no- [97 v. 123, § 71; 96 v. 45, §71.] tice must be reasonably specific as to place. Where a property owner owns 385 feet and the notice calls for 185 feet, not locating it, the owner is not in default for disre- garding it. It is not his duty to locate the sidewalk. Cincinnati v. Mig. Co., 7 B, 30. Describing the property on a cer- tain corner of two streets, without giving the number of feet to be paved, was, however, held sufficient. Cincinnati v. Gordon, 7 B. 79. Notice to repair as showing knowl- edge of the city of defective condi- tion, which caused an injury, see Shelby v. Clagett, 46 O. S. 549. Service of notice was held to be necessary upon an owner who lives in the county but not in the munici- pality, 39 B. 113 (edit.) Sufficiency of sidewalk.—The council’s determination as to the sufficiency of the sidewalk as con- § 3854 THE OHIO MUNICIPAL CODE. 404 structed by the property owner is show its sufficiency so clearly as to not to be reviewed by the court, or if leave but little doubt. Cincinnati v. - reviewable, the property owner must Longworth. 22 B. 153. FORM OF RESOLUTION TO CONSTRUCT OR REPAIR SIDEWALKS. Be it resolved by the council of the city [ormvillage]:o8, Bins ree oe State of Ohio: That a sidewalk shall be constructed on the................... side of Sea EI etree 5X street, from... ........t0.>.....5..0.0£ the character and in the manner following: (Here state character of sidewalk, manner of constructing, materials to be used, etce.; or use the words, where ap- plicable, “in accordance with the plans and specifications therefor on file in the office of the Director of Public Service,” or, in villages, “of street commissioner.” ) [Or, in case of repair, That the sidewalk in front of the premises of Bn RAS Hike ay: ORAL CRs aan ey Side QL matin. lon me peer eee between bi aR RAN ap and 212 Tk yy being Job Neb. 5. SA SRl on Od Go craae at division, and known as No. ........... yaa SEE street, be repaired in the following manner: (Here describe character of repairs required) .] That the clerk of council be and he is hereby directed to cause a written notice of the passage of this resolution to be served as required by law. Passed Attest: ie eRels 016.80 hia) 6mkseter eS SS eral ie Tee ere $0 & ee ote ene elated President of Council. FORM OF NOTICE TO CONSTRUCT OR REPAIR SIDEWALKS, Boast: 331 9M eee aeenee You are hereby notified that in accordance with a resolution passed by the council of the city [or village] of.......... , State of Ohio, you are required to construct [or repair] a [or the] sidewalk in front of your premises on the......... BidSsOT, shiaaelids street, between........... OE Cireteas. Ne » heingrlotsNenhti st teks eat tra subdivision, and er iad » +++eee.,S8treet, of the character (in case of construction) and in the manner following: (Here repeat requirements of resolution.) If said sidewalk is not constructed within fifteen days [or, repaired within five days] from the service of this notice, the director of public service [or in villages, the council] will have the same done at your expense, and such expense will be assessed upon your property and made a lien a 405 ASSESSMENTS—SIDEWALKS. § 3855 thereon and be collected in the manner provided by law, with penalty and interest if not paid as required in the levy .of assessment. rete ated: Tokers hows CAn ia! were ae UG ie Clerk of Council. FORM OF RETURN. Received the within notice on the........ GRY OR dehy ae oat tiers BL OR ost and served the same by delivering a true copy thereof personally (or insert any other method in conformity with requirements of law for service in civil actions) upon ............ 5 OR CBOE IE iene) ty day of deta Wad Nan a rate astshiege ® ies Pekan W bets cues venotene, VL; ee (Officer serving notice.) If curbing and gutters are also to be provided for, the forms given may be easily adapted. Sec. 3855. [Service upon agent or owner.]' For the pur- pose of such service, if the owner is not a resident of the corporation, any person charged with the collection of rents or the payment of taxes on such property or having general control thereof in any way, shall be regarded as the agent of the owner, and the return shall have the like force and effect as the sheriff’s return on summons in a civil action. [97 ‘Vi123, °§ 71; 96 v.45; °§ 71.] (1) Old section, 2329 R. S., repealed. Sec. 3856. [Notice to nonresidents and persons not found.]' If it appears in any such return, that the owner is a nonresident of the county, or that neither such owner, agent, or his place of residence could be found, publication of a copy of the resolution in a newspaper of general circulation in the corporation, in the manner provided for service by publication of resolutions for street improvements,” shall be deemed sufficient notice to such owner, but no publication of the resolution shall be necessary in the case of construction or repair of sidewalks, curbing and gutters where the notice is served upon the owner or agent as provided in the. pre- ceding two sections. [97 v. 124, §72; 96 v. 45, §72.] (1) Old section, 2329 R. S,, re- (2) See section, 3818, ante. pealed. § 3857 THE OHIO MUNICIPAL CODE. 406 Sec. 3857. [When construction or repair to be done at ex- pense of owner. ] “If such sidewalks, curbing or gutters are not constructed within fifteen days or not repaired with- in five days from the service of notice, or completion of the publication, the director of publie service in cities may do or have it done at the expense of the owner,” and all such expenses shall be assessed on all the property abounding or abutting thereon.* Such assessments shall be col- lected in the same manner with a penalty of five per cent. and interest for failure to pay at the time fixed by the assess- ing ordinance, as in cases of improvements. 97 v. 124; 96 v. 45, § 73.] (1) Old section 2330 R. S., re- pealed, § 2330d repealed. (2) Validity.—A provision such. as this held constitutional. Bonsall v. Lebanon, 19 O, 418. Notice.—Necessity of, before city can construct and charge abutting owner, see Hunt v. Hunter, 11'C. C. 69; Schmidt v. Elmwood Place, 15 C. C. 351. Purchaser of property, after no- tice to previous owner, is not enti- tled to notice before municipality improves. Kahn vy. Cincinnati, 30 C. C. 809; 11 C. C. (N. 8S.) 440. If property owner is notified to im- prove sidewalk. and fails to do so, no further notice is required before municipality makes the improve- ment. Ib. Where the provisions of § 4224 have been complied with in the passage of a side-walk ordinance and resolution, but the village clerk has failed to record the action of council and plaintiff has acquiesced in the construction of a side-walk which specially benefits his property, he is not entitled to an injunction against the assessment. Vinton v. James, 108 O. S. 220. Owner’s right to build, — A [98 v. 301, § 73; property owner is entitled to an election whether to build the side- walk himself or have the city build it. The fact that he peti- tioned to have the improvement made will not estop him from having an assessment enjoined where he has had no such elee- tion. Johnson v. Glenville, 16 CCl" CNG Sly Gor Change of materials.—Property owner is not bound to pay for sidewalk where materials used were different from those specified in a resolution providing for the walk and the notice sent to lot owners, and collection of assessment for such different walks will be enjoined. Meek v. Collinwood, 30 ©. ©. 63; 10 Core (NS Si) “, (3) Limitation of sidewalk as- sessments.—As to the application of the limitations in §§ 3819 and 3820 to sidewalk assessments, see Norwood v. Bldg. Ass’n, 7 C. C. 95. See also Cincinnati v. Connor, 55 O. S. 82; Huddle v. Madisonville, 32 C. C. 308; 13 ©. GC. (N. S.) 61 (limitations apply). But see West- enhaver v. Hoytsville, 28 C. C. 357. Form of assessing ordinance may be adapted from form under § 3864, post. 407 ASSESSMENTS—SIDEWALKS. _ § 3858 Sec. 3858. [Other proceedings not necessary; limit on amount of assessment.] No other or further proceedings for the construction or repair of sidewalks, curbing or gutters and levying assessments therefor, shall be necessary by the director of public service, than the proceedings required under this and the preceding four sections." In any case in which special assessments have been made on property for all the cost of the construction or repair of sidewalks, curbing or gutters under such sections, such assessments, within the limitation of benefits and the limits of thirty-three per cent of the taxed value of the property, shall be valid assessments upon such property. [98 v. 301, § 73; 97 v. 124.] (1) Method of improvement. structed and repaired. The legisla- —The method given in this and _ ture had in view an alternative pro- sections immediately preceding is cedure for sidewalk improvements. intended to be distinct from method Westenhaver v. Hoytsville, 28 C. C. provided in § 3812 et seg., under 357. which sidewalks may also be con- Sec. 3859. [Sidewalks, curbing and gutters in villages. ] If such sidewalks, curbing or gutters are not constructed with- in fifteen days, or not repaired within five days from the service of the notice, or completion of the publication, the council in villages may have it done at the expense of the owner and report the cost thereof to such owner.t Such cost shall constitute a len on the property abutting on such side- walks from the date it is so reported to the owner, and shall be paid by him to the treasurer of the municipality. If it is not paid within ten days from the time it was reported to such owner, the clerk in villages shall certify it, with a pen- alty of five per cent thereon to the county auditor, who shall place it on the tax duplicate and collect such costs and pen- alties in the same manner as other taxes are collected. [98 v. 301, § 73; 97 v. 124; 96 v. 45, § 73.] (1) See notes under section 3857, ante. Sec, 3860. [Assessment of cost for construction or repair of sidewalks, curbing or gutters.] When sidewalks, curbing or gutters are constructed or repaired in accordance with the preceding three sections, the assessment for the cost thereof § 3861 THE OHIO MUNICIPAL CODE. 408 may be made payable in full not less than thirty nor more than sixty days from the levy thereof or in not exceeding five annual installments, as council determines. In antici- pation of the collection of such assessments, bonds of the municipal corporation may be issued bearing interest not ex- ceeding six per cent per annum and the proceeds thereof used in the payment of the cost incurred by reason of such con- struction or repair. [97 v. 384, § 73a.] Sec. 3861. [What the resolution may contain.] In the passage of the resolution declaring that certain specified side- walks, curbing or gutters shall be constructed or repaired and in all the subsequent procedure necessary to secure the con- struction or repair of sidewalks, curbing or gutters, and col- lect the assessment therefor, sidewalks, curbing or gutters, although upon different streets and abutting upon lots or land owned by different persons, may be provided for in the same resolution, notice, contract, and ordinance or other step in such procedure. [97 v. 384, § 78a.] Sec. 3862. [Notice to owners of abutting property to clean sidewalks.] When the council in villages declares by resolu- tion or the director of public service in cities orders that a certain specified sidewalk or sidewalks, curbing or gutters shall be cleaned so as to be free from weeds, grass, dirt, snow or any other objectionable substance, the clerk of the council in villages or the director of public service in cities, shall cause notice of the passage of such resolution, or of such order, to be served upon the owners of each parcel of land abutting on the sidewalk ordered cleaned. The notice shall be given in the same manner as is provided for service of notice to construct sidewalks. [97 v. 124, § 74; 96 v. 46, § 74.] Sec. 3863. [When it may be done at expense of owners. ] If such sidewalks, curbing or gutters are not cleaned within five days, except if the objectionable substance be snow, then within one day, after the service of the notice or completion of the publication, the director of puble service in cities and the street commissioner in villages shall have it done at the expense of the owner and report the cost thereof to him, and 409 ASSESSMENTS—SIDEWALKS. § 3864 to the council in villages, or to the director of public service in cities.1 The cost of such cleaning shall constitute a len upon the property abutting on such sidewalks from the date it is so reported, and shall be paid by the owner to the treas- urer of the municipality. If the cost of the cleaning is not paid within ten days from the time it was so reported, the clerk in villages or the director of public service in cities shall certify it, together with a penalty of five per cent thereon to the county auditor, who shall place it on the tax duplicate and collect such costs and penalties in the same manner as other taxes are collected. [97 v. 124, § 74; 96 v. 46, § 74.] (1) See notes to § 3857, ante. Forms of resolution and notice may be adapted from those under § 3854, ante. Sec. 3864. [Construction of sidewalks, curbing or gutters. ]* In municipal corporations, when sidewalks, curbing or gutters are to be constructed pursuant to a resolution of council, the director of public service in cities and council in villages, may construct such sidewalk or parts thereof, or curbing or gutters or parts thereof,? and assess the cost and expense thereof upon the abutting, adjacent and contiguous or other specially benefited property according to the rule heretofore provided for street improvements.* [96 v. 46, § 75.] (1) Old sections, see §§ 2330a, 2330b, R. S., repealed. (2) Certificate of money in treasury was held not to be re- quired in case of a contract for construction of sidewalks where the act contemplates that the money shall not be in the treasury by pro- viding that the money is to be raised by a bond issue. Trowbridge v. Hud- son, 24 C. C. 76. Discretion of council as to re- jection of bids under former § 2330b, R. 8. See Trowbridge v. Hudson, 24 C. C. 76. (8) Assessing ordinance — How passed—The language used above indicates that the assessment for sidewalk improvements is to be made, in cities, by the director of public service. Doubtless the inten- tion was to give the power to con- struct sidewalks to the department of public service in cities and to councils in villages and the power to levy assessments therefor to council in all municipalities. This is in harmony with §§ 38814 and 3819, ante, empowering council only to levy assessments to pay the cost of all improvements, including side- walks, and.» imposing the duty upon council to limit such assess- ments, as well as many other provi- sions of the Code. It would seem the better course, therefore, that the assessing ordinance above referred to be passed by council, though any § 3864 question as to regularity may be avoided by concurrence in such or- dinance by the director of public service. Damages for change of grade. —Provisions relating thereto held to apply to sidewalk improvements. City v. Gordon, 7 B. 79. THE OHIO MUNICIPAL CODE. 410 Corner lot doctrine, whether applicable to sidewalk assessments, see Baker v. Schott, 10 C, C. 81. Estoppel to contest assessment by petitioning for improvement, see Huddle v. Madisonville, 13 C. ©. (N. S.) 61; 32 C. C. 308. FORM OF ASSESSING ORDINANCE FOR SIDEWALK IMPROVEMENT. Ordinance No Ce ey To levy special assessment for the construction of sidewalks on atotala veto cy areas ots street, between...... Be it ordained by the council of the city [or village] of........ of Ohio: Sec. 1. That to pay the cost and expenses of constructing sidewalks on eae ees s street, between......... OM ers ee 2 cals , In accordance with the resolution of council passed on the........ day Of s.achoen Peay tees there be levied and assessed upon the lots and lands hereinafter described the several amounts herein set forth. viz: Assessment, Owner. Description of property. Dollars. Cents. Which assessments are....... dollars and...... cents per front foot of the property bounding and abutting on the.......... Bide Of ss... se. a eee street, between (In case of assessments by a percentage of tax value or according to benefits, see form under § 3825, ante.) (Same as §2 of assessing ordinance under § 3825, ante, Sec. 2. and see requirements of §§ 3860 and 3861.) See. 3. That to provide a fund for the payment of the cost and expenses of constructing sidewalks as aforesaid, the mayor and auditor [or in villages, clerk], be and they are hereby authorized to issue and sell the bonds of the city [or village] of Aaah ta » according to law, (bonds must not exceed $1,000 in denomination, they must be serial bonds, pay- able in not less than one, nor more than ten years; see §§ 2295-12, 3865, 3914, 3922, 3924), and the proceeds arising from such bonds shall be ap- plied to the cost of such construction of sidewalks, the expenses of issu- j ’ : ‘ 411 ASSESSMENTS—SIDEWALKS. § 3864 ing such bonds, the payment of interest thereon, and to no other purpose whatsoever; and for the payment of said bonds and interest thereon the revenue and faith and all the real and personal property of the city [or village] are hereby pledged; provided, that if within the time above specified, and before the sale of the said bonds any of the owners of said property shall pay their total assessments in cash, the aggregate sum in bonds shall be reduced by deducting the amount so paid from the total amount of the fund to be provided, and the bonds issued shall be reduced accordingly. Sec. 4. That the proceeds arising from the sale of said bonds, together with all moneys received from the cash payments of assessments, shall be placed in the city [or village] treasury, and disbursed upon proper vouchers for the purposes herein provided. Sec. 5. That for the purpose of providing the necessary funds to pay the interest on the foregoing issue of bonds promptly when and as the same falls due, and also to create and maintain a sinking fund sufficient to discharge the said bonds at maturity, there shall be, and is hereby levied on all the taxable property of the city [or village] - Obes cue tes » in addition to all other taxes, a direct tax annually during the period for which said bonds are to run in an amount suffi- cient to provide for any deficiency in the levy, payment or collection of said assessments as the same fall due. That said tax shall be and is hereby ordered computed, certified, levied and extended upon the tax duplicate and collected by the same officers, in the same manner and at the same time that the taxes for general purposes for each of said years are certified, extended and collected. That all funds derived from said tax levies hereby required, shall be placed in a separate and distinct fund, which, together with all interest col- lected on the same, shall be irrevocably pledged for the payment of the interest and principal of said bonds when and as the same fall due. Sec. 6. That the installments of assessments and all portions thereof, shall be applied to the payment of said bonds and interest, as the same shal] become due, and to no other purpose whatsoever. Sec. 7. That this ordinance shall take effect and be in force from and after the earliest period allowed by law. BEDS SGU ceteris inst ote ecm aacaloastou des TT LO E016: 910 cose) S606 ue fe se Se President of Council. (Note: Instead of the above form combining assessment and bond ordinance, the separate forms under § 3825 may be used. All assess- ments not certified to the county auditor must be paid to the city or village treasurer. See § 3893.) § 3865 THE OHIO MUNICIPAL CODE. 412 Sec. 3865. [Bond issue authorized.] To carry out such purpose, council may issue bonds of the municipality in de- nominations not to exceed one thousand dollars, each to be payable in not less than one nor more than ten years,’ and to bear interest at the rate not to exceed six per cent per annum, which bonds shall not be sold for less than their par value and the proceeds arising from such sales shall be ap- plied to the cost of the improvements, the cost of issuing the bonds, the payment of interest thereon, and to no other purpose. The assessments shall be in such amounts as will be sufficient to provide for the payment of the bonds and the interest due thereon as they mature, and the assessments Shall be certified to the auditor of the county in which the municipality is situated, to be placed upon the duplicate, and shall be a lien upon all property so assessed if the assess- ment is not paid within the time fixed in the assessing ordi- nance. [96 v. 46, § 75.] (1) Serial bonds and maturities.— “Miscellaneous Statutes’, in Part For provisions relating to all bonds, _ IT, supra. see §§ 2295-9 and 2295-12 under Sec. 3866. [Construction of sidewalks along property of the corporation.]‘’ When deemed necessary by a municipal corporation to build or repair sidewalks, curbing or gutters along that portion of a street, alley or public highway which passes by or through public wharves, market spaces, parks, cemeteries, public grounds or buildings, the proper proportion of the estimated expenses thereof shall be, by the council of such corporation levied, certified and collected in the manner provided herein for the assessment of street improvements. [97 v. 125, § 76; 96 v. 47, § 76. | (1) Old section 2334 R. S., repealed, and 95 O. L. 416, repealed. Sec. 3867. [Construction of sidewalks on one side only; upon other side.] If the council of a municipal corporation deem it necessary to construct a sidewalk or gutter on one side only of a Street, alley, turnpike or plank road with proper crossings from one side to the other, it may assess and collect the charge therefor on the owners of the lots or 413 ASSESSMENTS—SIDEWALKS. § 3868 lands abutting on both sides of such street, alley or road in like manner as if such sidewalk or gutter had been constructed on both sides.1_ When a sidewalk or gutter is so constructed, if it is deemed necessary to construct a sidewalk or gutter on the other or corresponding side of such street, alley or road, the charge therefor shall be assessed on the owners of the lots and lands on both sides. [R. S. Sec. 2332; 90 v. 213; 66 v. 250. ] (1) Ordinance unreasonable. on other side and assessing cost on —Where an ordinance provides for both sides, it is unreasonable. Mills constructing a sidewalk on one side v. Norwood, 26 B. 348, C. C. GC. 305. only, leaving no space for sidewalk Sec. 3868. [Construction of sidewalks in villages.] The council of villages, upon the petition of the owners of two- thirds of the front feet of lots or lands abutting upon one or both sides of a street or portion of street between points designated in the petition, may provide by ordinance for the construction of sidewalks along such street or portion thereof, on one or both sides, and of such materials and width as is designated in such petition. The supervision of the con- struction of such sidewalks shall be by the council or a proper committee thereof. The construction of such sidewalks shall be governed in all respects by the provisions of this title relating to the improvement of streets. One-half of the cost and expenses of such sidewalks shall be defrayed by the village and the other half shall be assessed against the prop- erty abutting on such street or portion of street between the points designated in the petition, in the manner designated in the petition. [97 v. 481, §1.] Sec. 3869. [Assessments; bonds in anticipation thereof.] When council orders sidewalks to be constructed in accord- ance with the prayer of-such petition, it shall also provide for the payment of the property owner’s one-half of the cost and.expenses thereof, in two or more equal annual install- ments, and make corresponding annual assessments therefor on the property abutting upon such improvement. Such assessment shall be collected or certified as assessments for street improvements, and be a lien upon the property as- § 3870 THE OHIO MUNICIPAL CODE. 414 sessed. The council may issue bonds in anticipation of the collection of the amount chargeable against the property owners, which bonds shall bear interest at a rate not to exceed six per cent per annum, and shall be sold for not less than pary «(9% se. 48d9 824 Sec. 3870. [Bonds to pay village’s portion of cost.]! For the purpose of paying the village’s portion of the cost and expenses of constructing such sidewalks, the council may borrow money at such times and in such amounts as may be required, and issue bonds of the village therefor at a rate of interest not to exceed six per cent per annum, payable semi- annually, and of such denomination as the council may de- termine. The issuing and sale of such bonds shall be gov- erned by the provisions of law applicable to the issuing and sale of municipal corporation bonds. The council may levy upon all the taxable property of the village, in addition to the taxes allowed by law, such tax as may be necessary to pay the principal and interest of such bonds as they mature. Such tax shall be levied and collected in the same manner as taxes for general purposes in villages are levied and col- lected. [97 v. 482, § 3.] (1) Serial bonds required.—For cellaneous Statutes” in Part II, provisions relating to all bonds see supra. §§ 2295-6, et seq. under ‘“Mis- Sec. 3870-1. [Powers of councils as to canals, etc.] That the councils of cities and villages where and so far as it shall be necessary for the free, convenient or safe navigation of any navigable canal, ship canal or watercourse located wholly or in part within the corporate limits or lying contiguous or adjacent thereto, may provide against the subsidence, wash- ing, falling or depositing therein of earth or any other material from the abutting land by reason of any works or structures erected or maintained or material deposited or operations con- ducted thereon, by the imposition of suitable penalties and by requiring the construction of such retaining works and structures and such repair of any existing works or structures as shall be suitable and necessary to prevent the same. [101 v. 148, §1.] 415 ASSESSMENTS—-SEWERS. § 3870-2 Sec. 3870-2. [Resolution; failure to comply with terms of resolution; collection by taxation.] Whenever the council of any city or village declares by resolution that such a condition exists and that for the purpose mentioned in section 1 it is necessary that such retaining works or structures be con- structed or any existing works or structures be repaired along the shore or in front of any specified parcel or parcels of land abutting on such waterway, the clerk of the council shall cause a written notice of the passage of such resolution to be served upon the owner or owners of such parcel or parcels or his agent, which notice shall be served and returned or published in the manner provided in sections 3854, 3855 and 3856 of the General Code. If sufficient retaining works or structures be not constructed or any existing works or structures be not sufficiently repaired within such number of days from the service of notice or com- pletion of the publication, as may be specified in the resolu- tion of the council, the department of public service in cities and the council in villages may do or have the same done at the expense of the owner and report the cost thereof to such owner in the same manner as provided for giving notice as aforesaid, and the cost of such construction or repair shall constitute a lien against such property from the date the Same is so reported to such owner, and shall be paid by the owner to the treasurer of the municipality, and if the cost of said construction or repair is not so paid within ten days from the time the same has been reported to such owner, the clerk shall certify the same, together with a penalty of five per centum thereon to the county auditor, who shall place the Same on the tax duplicate and collect such costs and penalties in the same manner as other taxes are collected. [101 v. 148, § 2.] SEWERS. Sec. 3871. [City engineer to devise plan of sewerage.]' In addition to the power herein conferred to construct sewers and levy assessments therefor, council of a municipal cor- poration may provide a system of sewerage for such municipal corporation or any part thereof. The engineer of such cor- poration, or some person employed by the municipality, shall § 3871 THE OHIO MUNICIPAL CODE. 416 devise and form, or cause to be devised and formed, a plan of the sewerage of the whole corporation, or such part thereof as may be designated by the council. Such plan shall be devised with regard to the present and prospective needs and interests of the whole corporation, and shall be by him reported to the council for its confirmation.? (1) Old — section.—Compare § 2366 R. S., repealed. (2) Adoption of system of sew- erage was held, under former laws, not necessary to be first made before a single independent sewer could be constructed. The general power to build sewers given to municipalities would not be restricted by provision as to a sewerage system, unless a system had been previously found necessary. Hartwell v. R. R. Co., 40 O. S. 155. Where a system is adopted, fail- ure to provide plans and specifica- tions and estimates of expense, was held not jurisdictional and no de- fense to sewer assessments. Toledo v. RR. Coy. 4:C. G1 18; Discretion of council in devising a plan of sewerage cannot be inter- fered with by the court unless gross- ly abused. Johnson v. Avondale, 1 CaO. eeu: House connections.—It was held that an act giving authority to a municipality to provide “a plan of Sewerage and drainage” would not give the municipality power to make house connections, unless such house connections were made part of the plans and specifications and duly published. Cordeman vy. ‘Cincinnati, 23 O. S. 499, 507. But as to power under present statutes, see § 3812-1, ante. Tapping Sewers.—Old § 2402 R. 8., repealed, provided expressly [96 v. 47, § 77.] for tapping sewers for private use. But the authority to construct and maintain sewers doubtless includes the authority to provide by ordi- nance rules and regulations for tap- ping sewers for private use. In the enumeration of powers (§ 3637) authority is given to provide by or- dinance for licensing sewer-tappers. For questions arising under former laws as to tapping sewers, see State ex rel. v. Board, 4 B., 293; Herr- mann v. State ew rel., 54 O. S. 506; Springmeyer v, State, 1 ©. C. 501; State v. Graydon, 6 ©. ©., 634. Municipal liability.—Failure to provide sewers would not make a municipality liable for damages re- sulting from its neglect. Spring- field v. Spence, 39 O. S. 665. 669; Dayton v. Taylor’s adm’r, 62 0. S. ik Thus, injury caused by failure of municipality to provide for carrying off surface water was held not to make it liable. Jb. Defect in plans.—Nor will the municipality be liable because the plans it has adopted are not suf- ficient or proper. The manner in which drainage may be accomplished is peculiarly within the discretion of the municipal corporation and it cannot be called to account by the courts for its errors of judgment in the plans of a public improvement for drainage adopted by it. Wheeler v. Cincinnati, 19 O, S. 19, 22; Day- ton v. Taylor’s adm’r, 62 O. 8. 11. ee ee a 417 Negligence in constructing. —But for damages. due to negligence in the construction of a sewer, the municipality will be liable. Cum- mings v. Toledo, 12 C. C. 650; Co- lumbus v. Jaeger, 36 B. 191; see also Dayton v. Taylor’s adm’r, 62 0.8, 11,16. But injuries resulting from con- struction, if not caused by the city’s negligence in the work, will not make the municipality liable. Co- lumbus v. Jaeger, 36 B, 91; Cum- mings v. Toledo, 12 C. C. 650. And see generally, Cincinnati v. Penny, 21 0. 8S. 499. Municipality is not liable for de- stroying, in the course of construc- tion of a sewer, local drainage con- nections made without its consent. Miller v. Toledo, 12 C. C. 706. Where damage is caused by con- struction of insufficient drain in such manner as to obstruct the flow of water through it, the municipality is liable. Cincinnati v, Johnson, 28 C. C. 377. Municipality not liable for injury caused by collapse of sewer in time of extraordinary flood. McWilliams v. Cincinnati, 7 O. L. R. 88. Failure to keep in repair will also make the municipality liable, if notice is brought home to the municipality that street not rea- sonably safe because of faulty con- struction. Dayton v. Taylor’s adm’r. 62 O. S. 11, 16; Cincinnati v. Frey, 16 Dec. 77; 3 N. P. (N. S.) 627. A municipality is liable in damages for maintaining a defec- tive sewer in such condition that sewage is allowed to seep or percolate through the subsoil, and into the cellar of an adjoining property owner. Krazeweski v. Berea, 21 C. ©. (N. 8.) 449. ASSESSMENTS—-SEWERS. § 3871 Overloading sewer.—A munici- pal corporation is liable for dam- ages to a lot owner by the flow- ing back into his cellar of filth from a sewer with which it is attached, by reason of the negli- gent overloading of. said sewer by the municipality. Merzweiler v. Akron, 18 C. C. (N. S.) 1388. There can be no recovery from a municipality on account of the flooding of a basement or cellar by reason of the obstruction of a sewer, where notice of the ob- struction is not shown and no negligence appears in the con- struction, maintenance or care of the sewer. Norwood v. Gobrecht, LOGS CON OSs kia, Pollution of a watercourse by a municipality in discharge of its sewerage will make it liable, as an individual would be liable. . Cleve- land v. Beaumont, 4 B. 345; Cilly v. Cincinnati, 2 B. 135; Mansfield v. Balliett, 65 O. S. 451; Rhodes v. Cleveland, 10 O. 160; Mansfield y. Hunt, 19 C. C. 488. Such pollution, if continued for a period of twenty-one years, would give municipality prescriptive right, and it will not thereafter be liable to riparian owners for such pollu- tion. Cleveland v. Standard Bag & Paper Co., 72 O. S. 324; Tepe v. Norwood, 48 B. 876; Mansfield v. Hunt, 19 C. C. 488; Norwalk v. Blatz; :29..C:C. 307; 9 ©: CG. (N..S:) 417. See also Schrenck v. Cincin- nati, 31 C. C. 118; 10 C. C, (N.'8.) 135. Riparian owner cannot recover against municipality damages for pollution if he contributes to such pollution. Tepe v, Norwood, 48 B. 876, (aff’d, 71 O. S. 520) ; Kemper v. Home, 6 Dee. Re. 1049. See also § 3871 Cleveland v. Standard Bag & Paper Co., 72 O. S. 324. Limitation of action.—Action against municipality for damages growing out of overflow of plaintifi’s lands from negligent construction of municipal drains, is an action of trespass and nuisance and four- year limitation is applicable. Nor- walk v. Blatz, 29 C. C. 306. Injunction to restrain the mu- nicipality from emptying sewage into a stream to plaintiff’s injury would lie. Cilly v. Cincinnati, 2 B. 135; Whitney v. Toledo, 29 C. C. 74. Evidence.—Proof of adoption of sewerage system and plan of dis- tricting must be made by the ordi- nances and not by the testimony of the engineer. Cleveland v. Beau- mont, 4 B. 345. THE OHIO MUNICIPAL CODE. 418 Errors not prejudicial, see Cin- cinnati v. Roettinger, 11 C. C. (N. 8.) 501. Measure of damages where owner’s property is injured by break in sewer, see Toledo v. Gras- ser, 12 C. C. 520. Where municipality with others causes injury to riparian proprietor by pollution of stream, municipality is liable only for its proportion of damage, and jury should be in- structed to separate the damage done by municipality from that done by others, notwithstanding difficulty of apportionment. Colum- bus v. Rohr, 30 C. C. 155; 10 C. C. (N. S.) 320. Apportionment should be based on amount of sewage dis- charged by each and degree of pol- luting properties. Jb. ORDER OF PROCEDURE IN SEWER IMPROVEMENTS UNDER GENERAL PLAN. 1. Adoption of general plan. Where it is desirable to make sewer improvements under a general plaa or system, council should, by reso- lution, direct the engineer of the city or village to prepare such plans, either for the whole municipality or for such portion as council may determine. (§ 3871.) The engineer should then prepare such plans observing the require- ment of §§ 3872 and 3873. and report the same to council. 2. Notice of completion of plan and that the same is ready for public inspection should be given by publication for ten days. (§ 3874.) 3. Objection to plan by persons interested may then be filed with council, and council may thereupon, amend the plan. (§ 3875.) The plan, as originally presented or as amended, as the case may be, should then be confirmed by council by ordinance, setting out the plan, and the plan should be filed in the office of the auditor (in cities) or clerk (in villages). 4. Designation of part to be constructed. Council should next, by resolution, designate the part of the general plan that is to be carried out in the particular improvement to be made. The resolution should show what district, giving its boundaries, or what part of a district, is to be improved. (§ 3877.) he resolution may order the engineer to make an estimate of the cost of constructing sewers in accordance with the part of the plan designated, and report the estimated cost to council. ee ae 419 ASSESSMENTS—SEWERS. § 3872 5. Resolution declaring necessity of the proposed sewer improvements which should contain(1) a statement of the district or part of district pro- posed to be improved, giving its boundaries as in the designated resolution; (2) the character of the materials to be used; (3) a statement that the improvement is to be made in accordance with the plans and specifications of the engineer, referred to in the resolution, together with a statement as to place where they are on file; (4) the mode of payment for the improve- ment, determining the proportion to be assessed and the method of the assessment, as well as the method of payment of the remainder of the costs, whether by levy upon the general tax list or by special bond issue. (§ 3878.) As to notice to owners, of this resolution, see § 3834. 6. Ordinance to improve, which should contain (1) an expression of council’s determination to proceed with the improvement; (2) a description of the district or part of district to be improved, as given in the preceding resolution; (3) a statement of the character of material to be used; (4) a statement that the improvement is to be made according to the plans and specifications of the engineer; (5) the mode of payment as in the pre- ceding resolution, and naming the lots and lands to be assessed, in each district, or part of district, separately (§ 3879). 7. Advertisement for bids and award of contract as in case of other street improvements. (§§ 3880, 3833, 4221, 4325, 4328, 4403.) 8. Certificate of Engineer showing completion of work, made to council. (§ 3881.) 9. Assessing ordinance in conformity with ordinance to improve, making the assessment by districts and giving the amount of assessment on each lot or land. (§ 3881.) Norr.—The procedure above is only for cases where council adopts a general plan of sewerage. Improvement by constructing sewers where no general plan has been adopted, may be made in the manner provided in § 3812 et seq., relating to street improvements generally. (§ 3871.) (See Kohler Brick Co. v. Toledo, 29 C. C. 599, 10 C. C. (N. S.) 187.) Sec. 3872. [Sewer districts.]! The plan so devised shall be formed with a view of the division of the corporation into as many sewer districts as may be deemed necessary for secur- ing efficient sewerage. Each of the districts shall be designated by a name and number, and shall consist of one or more main sewers, with the necessary branch or connecting sewers, the main sewers having their outlet in a river, or other proper place.2 The districts shall be so arranged as to be inde- pendent of each other, so far as practicable. [96 v. 47, § 78.] (1) Old. section 2370 R. S., re- cannot be interfered with by the pealed. courts, unless grossly abused. John- (2) Discretion of council in son v. Avondale, 1 C, C. 229, 232. determining what is a proper outlet An extension, giving a proper out- § 3873 THE OHIO MUNICIPAL CODE. 420 let, which was contemplated at the isfy the statute. Wilson v. Cincin- time the sewer was built, would sat- nati, 5 N. P. 68. Sec. 3873. [How plan to be prepared.]1 The plan shall be so prepared as to show the size, location, inclination and depth below the surface of all main sewers and all branch sewers connected therewith. [96 v. 47, § 79.] (1) Old section 2374 R. S., repealed. Sec. 3874. [Notice of completion of plan to be advertised. ]! When such plan of sewerage has been prepared, the council shall give at least ten days’ notice” in one newspaper of general circulation in the corporation, stating that such plans have been prepared and are filed in the office of the clerk for examination and inspection by parties interested. [96 v. 47, § 80. | (1) Old section 2375 R. S., re- and. did not invalidate assessments. pealed. Cincinnati v. Honnigfort, 32 B. 32; (2) Necessity of notice.—Omis- Columbus vy, Bohl, 13 Dec. 569; 1 sion to advertise was held not ju- N.P. (N.S.) 469. risdictional under former statutes, FORM OF NOTICE OF COMPLETION OF PLAN FOR SEWERAGE. Legal Notice. Notice is hereby given that plans for the sewerage of the city [or village] OF afc his daldeee yee ee [or for the sewerage of the following described territory of the city, or village of.......... (here describe part of municipality designated by council) ], have been prepared and are now on file in the oflice of the clerk of council of the city [or village clerk] for examination and inspection by parties interested, and any objection thereto may be filed with council. By order of the Council of the City [or Village}ofs... skaae: See eee eee eer eee rere rsee Sec. 3875. [Objections to plan.]* Any objection to such plan of sewerage shall then be made to the council, and it may, if it deems proper, amend or correct such plan, and shall thereupon file it as amended, or if no amendments be 421 ASSESSMENTS—SEWERS. § 3876 made, the original plan, duly certified by it, in the office of the auditor or clerk. [96 v. 48, § 81.] (1) Old section 2376 R. S., repealed. Sec. 3876. [Amendment of plan.]’ At any time after the construction of all or a part of the sewers provided for by such plan of sewerage, council may amend such plan by pro- viding for such intercepting sewers, without regard to sewer districts, as shall be necessary to furnish an additional outlet for the system so adopted, and to provide for the construction thereof as herein provided, and apportion the cost and ex- pense thereof, equally among the districts directly or indi- rectly sewered in whole or in part thereby, and assess and col- ' lect the amount apportioned to each district, or the council may apportion a part only of such cost and expense among the districts directly or indirectly sewered in whole or in part thereby, and provide for the payment of the residue thereof by the city at large. The council may also amend such plan by making new sewer districts, or by subdividing districts already established, giving a name and number thereto, and provide for the construction of the main and branch sewers therein, and may assess the cost and expense thereof upon the lots and lands within the corporation accord- ing to benefits. [96 v. 48, § 82.] (1) Old section 2376 R. S., repealed. Sec. 3877. [Designation of portions for immediate con- struction.]' After such plan has been adopted and approved, the council shall designate such portions of the work as may be required for immediate use, and the designation shall be by districts, and shall show what districts or part thereof, is to be improved and may order the engineer to make an esti- mate of the cost and expense of constructing the work, or such portions thereof as may have been designated in accord- ance with the last section, according to such plan, and report them to council.? [96 v. 48, § 83.] (1) Old sections 2373 and 2377 ‘Failure to cause estimate to be made R. 8., repealed. held not a defense to assessment. (2) Necessity of estimate.— Toledo v, Ry., 4 ©. CG. 113. § 3878 THE OHIO MUNICIPAL CODE. 422 Curative provisions of §§ 2289 and 2327 R. S., (now §§ 3901 and 3911 G. C.) held to extend to irregulari- ties or defects in the estimate of cost for sewerage. Wewell v. Cin- cinnati, 45 O. S, 407. Sec. 3878. [Resolution of necessity and notice thereof. ]! When it is deemed necessary by a municipal corporation to construct all or a part of ‘the sewers provided for in such plan, the council shall declare by resolution the necessity thereof.?, Such resolution shall contain a declaration of the necessity of such improvement, a statement of the district or districts or parts thereof proposed to be constructed, the char- acter of the materials to be used, a reference to the plans and specifications, where they are on file, and the mode of payment therefor, and shall cause the resolution to be published once a week for not less than two nor more than four consecutive weeks in one newspaper of general circulation in the cor- poration.» [96 v. 48, § 84.] (1) Old section.—Compare (3) Published notice.—Where § 2378 R. S. (repealed) requiring published notice describes property only the ordinance to improve. But by streets and omits certain streets, old § 2304 R. S. (repealed) required resolution of necessity for all pub- lic improvements. (2) Necessity, object, etc., of resolution.—See notes to § 3814. and these streets were also omitted in the resolution,—as to validity of assessment on such streets, see Cin- cinnati v. Honnigfort, 32 B. 32. Notice to owners.—See § 3834. FORM OF RESOLUTION DECLARING NECESSITY. Resolution. Declaring it necessary to construct sewers in district............... [or part’ of. districtyoi9 Gee . or district consisting of territory bounded WAR Hoes Ne WB ie Be it resolved by the council of the athy Lon village tof iw. Sicke , State of Ohio; That it is necessary to construct all [or a certain part hereinafter de- scribed] of the sewers provided for in a general plan for a system of Sewerage, for said city [or village] (or, if the plan was for a part only, of the municipality, then say “for the territory bounded as follows,” inserting boundaries in general plan) which general plan was adopted by council on DOORS oc wet Day OL icss scjere , 19...., and is now on file in the office of the auditor of said city [or clerk of said village]; and that the portions of the work provided for in said general plan, which it is hereby determined to construct are as follows: (Here describe by districts or part of districts, the territory that is to be improved, giving the boundaries of each district ,- ‘ 4 f 7 é ‘ 423 ASSESSMENTS—SEWERS. § 3879 or part of district included, following the description in the resolution designating the part to be improved). Be it further resolved, That said sewers shall be constructed in accord- ance with plans and specifications, on file in the office of the auditor of said city [or clerk of said village] and shall be of................ (here insert materials to be used). Be it further resolved, That the costs .......... of resolution to improve under § 3815.) Be it further resolved, That the clerk be and he is hereby directed to cause this resolution to be published in the manner provided by law. (Here follows form IEC CS Sees See Gea eee el Oyo Attest: CRT ite RN ES gas isle a i ye Rt We coat oes oan President of Council. Sec. 3879. [Ordinance authorizing construction; what to contain.]* After the publication of such notice, the council shall determine whether it shall proceed with the proposed improvement or not, and if it decides to proceed therewith, an ordinance for the purpose shall be passed.? Such ordinance shall contain a statement of the district or districts or parts thereof proposed to be constructed, the character of the ma- terial to be used, a reference to the plans and specifications, the mode of payment therefor, and shall provide for assessing the cost and expenses of the improvement upon the lots and lands in each district as other assessments are levied, and the lots and lands in each district shall be assessed by districts, except that the cost of the construction of any main sewer which serves as a common outlet for two or more districts shall be apportioned between the districts, and the cost as- sessed on the lots and lands in the respective districts in pro- portion to the benefits accruing thereto.? [96 v. 49, § 85.] (1) Old section 2378 R. S., re- pealed, and see old §§ 2372 and 2379 R. S., repealed. (2) Ordinance to construct.— Time of passage. An ordinance passed prematurely was held not in- valid. Since failure to publish the preliminary resolution is a defect covered by the curative statutes, an ordinance passed before that publi- cation is complete, would not be fa- tally defective. Toledo v. Ry. Co., 4 C0, C, 118. Publication of ordinance held not to be required. Kohler Brick Co. v. Toledo, 29 C. C. 599; 10 C. C. (N. 8S.) 137. Method of improvement.—The § 3879 special provisions with respect to the construction of sewers in pur- suance of a plan already adopted control the council and are inde- pendent of the method provided in § 3812, et seg. Kohler Brick Co. v. Toledo, .29- C. G, 599; 10 C. C. (GNIS 3) eal 3 7 See, under former laws, Cincinnati v. Wewell, 16 B. 287; Nitzell v. St. Bernard, 3 N. P. 317; Stallo v. Cincinnati, 17 Dee. 714. But council might provide for construction of sewers, where no general plan had been adopted, and proceed in the manner provided in § 3812. et seg., Kohler Brick Co. v. Toledo, 29 C. C. 690; 10 C. C. CN. 49:4137. Sewers.— How cost of main sewer may be assessed; how cost of main sewer and sewage dis- posal plant outside of municipal corporation may be assessed. Op. Atty. Gen. (1916), p. 1951. (3) Assessment by districts, provided for also by former laws was held not jurisdictional, and an assessment for a sewer in parts of two districts was held valid under previous statutes. Cincinnati v. Honnigfort. 32 B. 32, THE OHIO MUNICIPAL CODE. 424 Lands in whole district will be deemed benefited and may be as- sessed, though property not im- proved so as to make sewer connec- tions immediately available, if sewer 80 located that it may be utilized in the future. King v. Dayton, 30 C. C., 480; 10 C. C. (N. 8.) 522. Improvement of separated portions of a street by sewering, is fully recognized in the statutes, and such improvement made in sections and assessed per front foot is valid. Erkenbreker vy. Cincinnati, 30 C. C. 822; 10 C. C. (N. S.) 103. See also Wilder v. Cincinnati, 26 O. S., 284. Fair average depth of lots for purposes of assessment may be fixed by council, though no statutory pro- vision therefor when assessment by benefits. Kohler Brick Co. v, To- ledo, 29 C. C., 599; 10 C. C. (N. 8.) 137. Pumping station is a necessary part of a sewer equipment, and under this section, the cost of con- struction of such plant may properly be included in the amount assessed for a main sewer. King v. Dayton, 30 C. C., 480; 10 C. C. (N. S.) 522. FORM OF ORDINANCE AUTHORIZING CONSTRUCTION. Ordinance No e 6 eee Here fe 6, oa Me 8. aire Determining to proceed with the construction of sewers in district... 3. Te ess 4 [or part of district........ Domed Wo b.0 d ois 18 ls Be it ordained by the council of the city [or village] of........... , State of Ohio. Sec. 1. That it is hereby determined to proceed with the construction of sewers in the district [or districts or part of district] bounded and described as follows: (Here copy boundary of district as given in the reso- lution of necessity), pursuant to a resolution passed on the........ day of A? ahi tala Si Febes . and in accordance with the plans and specifications heretofore prepared by the engineer of said city [or village] for a system of sewerage therein [or in said district], adopted by council on the eee eee ee 425 ASSESSMENTS—SEWERS. § 3880 GRY’ Obs sh vite iaias'sd- , 19...., and now on file in the office of the auditor of said city [or clerk of said village], and to be of.............. (Here insert materials to be used). pee. a, Lhat the cOstys oo. Fi... (Here repeat mode of payment for the improvement, as determined in the. resolution of necessity). Sec. 3. That the following lots and lands shall be assessed for said improvement, as above determined: i Districhs we stscine cs Streets. ; > 7 Lot Numbers. See. 4. (In cities) That the director of public service be and hereby is authorized and directed to make and execute a contract for the con- struction of said improvement with the lowest and best bidder, after advertisement, according to law. Or, Sec. 4. (In villages) That the clerk be and hereby is authorized and directed to advertise for bids for the construction of said improvement according to law. See. 5. This ordinance shall take effect and be in force from and after the earliest period allowed by law. OO acs, deri, Wak Rae a ook Biiig a 8 1955, Attest: SEOs (0) 4) See San, Sete a level erew ire A Ore ee Ol ae ON) Covel bibie Sis eLee el eial ee (6. Pad, 616.0 WM ie SLelle le Clerk. President of Council. Sec. 3880. [How contract let.]' The work shall be adver- tised, and the contract shall be awarded to the lowest and best bidder, in the manner heretofore provided for the im- provement of streets. [96 v. 49, § 86.] (1) See § 3833. As to changes or alterations in sewer contract under former laws, see Gano v. Hshelby, 21 B. 177. Sec. 3881. [Ordinance for assessment of costs; bonds in anticipation of assessments.] If it deems expedient, council may by ordinance assess the real estate as provided in the ordinance to improve, and cause such assessments to be col- lected, or, at its option, may issue bonds in anticipation of the § 3881 THE OHIO MUNICIPAL CODE. 426 collection of such assessments, before the work is done or contracted for. Or council may, at its option, delay such as- sessment until the work is completed, and then, upon the cer- tificate of the engineer showing the completion of the work, by ordinance assess the real estate as provided in the ordi- nance to improve.” Any person so assessed shall have the option of paying his proportion of the assessment in cash within the period of thirty days from the date of the levy thereof upon due notice being given. 49, § 87.] (1) Assessment.—The assess- ment is to be made as provided in the ordinance to improve and must be levied as other assessments are levied. See § 3812 et seq. Installments.—It was held that sewer assessments might be made on the installment plan though the section relating to sewers did not expressly so provide. Nitzel v. St. Bernard, 3 N. P. 317. Miscellaneous.—The cost of sewers on several streets may be added together and the assessment made equally on all the lands adja- cent to the several streets. John- son v. Avondale, 1 C. C. 229, It was held under former statute that assessing district need not be established in assessment for trunk sewer. Wilson v. Cincinnati, 5 N. Pn68. Street and sewer improvements can not be assessed in one assess- ment. Nitzel v. St. Bernard, 3 N. A177; As to validity of sewer assess- ment on property abutting on one side of the street only, see Toledo v. Beaumont, 3 N, P. 287. Change of plan.—A slight change in the plan originally adopted for sewer system, not ren- dering the sewer less serviceable or [97 v. 51, § 87; 96 v. more expensive, does not invalidate the proceedings or assessment. Koh- ler Brick Co. v. Toledo, 29 C. C. 599; 10 C. C. (N.S.) 187; Close v. Parker, 30 .C. C. 384; 11 C, C. (N.S.) 85, (aff'd, 70 O. S. 444). Intersections.—lIt was held that the rule that intersections must be paid for by the city does not apply to sewer assessments for local sanitary sewer. Cincinnati v. Wewell, 16 B. 287; Close v. Parkar, 11 C. C. (N. 8S.) 85; 30 C.-C. 384: See note ‘‘Real front, corner lots” under § 3812 and see Davis v. Hartwell, 10 N. P, (N. S.) 46. Property subject to assess- ment.—Farming property. Toledo v. Andrews, 18 C. C, 861. Wharf property is liable for sew- erage. Boeres v. Strader, 1 ©. S. C. Rub Te Limitation of assessments.— The former limitation to percent- age of value of land in the general assessment laws was held to apply to sewer assessments. Cincinnati v. Connor, 55 O. S. 82. See fur- ther § 3819 and note “Separate im- provements” thereunder. What costs and expenses in- cluded.—Assessment held not void because it included the cost of board sheeting used in making the 427 sewer, although the proceedings did not provide for such expense. Hastings v. Columbus, 42 O. S. 585. See Cincinnati v. Anchor White Lead Co., 44 O, S. 2438. Assessment can not include cost of material not in fact used in the sewer construction. Toledo v. Beau- mont, 3 N. P. 287. Municipal corporations are with- out authority to include for as- sessment purposes in the cost of a sewer system, the cost of sew- age disposal plant. Op. Atty. Gen. (1920), p. 620. Assessment for house connections up to the line of the street. See Toledo v. Andrews, 18 C. C. 861. Cost of advertising and pay of superintendent may be included. Cincinnati v. Wewell, 16 B. 287. Defense to assessment.— Claiming no benefit—No defense to a sewer assessment that the lots were below the level of the sewer or that the sewer was too small and was therefore of no benefit. City v. McDermott, 2 B. 240; Hildebrand v, Toledo, 27 C. C. 427; 6 C. C. (N.S.) 450; Ford v. Toledo, 64 O. S. 92. No defense to assessment that the sewer was no benefit to prop- erty owner’s lot, Conner v. Cincin- nati, 11 C. C. 336. Nor that owner’s lot was six feet below the sewer. Toledo v. Kohn, 2 N. P. 47; nor that the owner’s cellars were deep- er than the sewer, Cincinnati v. Bickett, 26 O. S. 49; nor that the owner’s lot is a wharf on the river bank and is the lowest ground of all, Boeres v. Strader, 1 C. S. C. R. 57, 60. Postponed benefit.— Where a sewer is constructed for both drainage and sanitary purposes, but its use as a sanitary sewer ASSESSMENTS—SEWERS. § 3881 must be postponed, an action lies by an abutting owner for injunc- tion against collection of so much of the assessment as represents the increased cost in adapting the sewer to sanitary purposes until such time as it is open for use for that purpose, if such use is not delayed for an unreasonable period—in the instant case two years. Wilson v. Newark, 27 O. C.. A, 476; 7 Oh. App. 452. An assessment for the construc- tion of a sewer will not be set aside on the ground that the state board of health has deter- mined, after the sewer is built, to require the city to submit plans for abatement of the pol- lution of the stream into which the sewer empties; nor would the fact that the stream into which the sewer empties proves, ulti- mately, to be so polluted as to constitute a violation of the statutes prohibiting the pollution of streams by sewage justify the setting aside of such assessment. Thatcher v. Toledo, 22 C. C. (N. S:); 193; 2°On. App. 357. Defect in proceedings.—Omis- sion of some of the abutting feet from the assessment is no defense where plaintiff’s assessment was not thereby increased. Wilson v. Cincinnati, 5 N. P, 68. See also as to omissions and de- fects which are not a defense to as- sessment. Wewell v. Cincinnati, 45 O. S. 407, (omission to construct sewer in street embraced in plan) ; Toledo v. Railway Co., 4 C. C. 113, (failure to provide plans and speci- fications and estimate of expense) ; Cincinnati v. Honnigfort, 32 B. 32 (omission of a street in advertising plan) ; Davis v. Cincinnati, 1 B. 104, § 3882 (omitting to name one of the streets in the ordinance). Uniformity.—Owner has no de- fense to assessment because of fail- ure to assess all the abutting lots unless his assessment was thereby increased. His remedy is to en- join the levy of increased taxes due to failure to make assessment. Wil- son v. Cincinnati, 5 N. P. 68. It is no defense to a sewer assess- ment that other property benefited has not been assessed where it ap- pears that such other property is ex- empt because already supplied with local drainage. Toledo v. Potter, 19 C. C. 661. In a sewer assessment district consisting wholely of farm lands, an assessment which levies the same amount per acre upon the remote lands as upon those in close proximity to the sewer, is THE OHIO MUNICIPAL CODE. 428 not levied in proportion to the benefits, and its collection will be enjoined. Munz v. Myers, 23 C. C. (N. 8.) 190 (aff’d without re- port, Myers v. Munz, 90 O. §8. 383). But see Krauss v. Cleve- land, 24 C. U. (N. 8S.) 483. Set-off.—There can be no set-off against sewer assessment because of material furnished by property owner to contractor. Wilson v. Cin- cinnati, 5 N. P. 68. Defense of local drainage.— See notes to § 3819. Form of assessing ordinance for sewer improvement may be adapted from form of assessing or- dinance under § 3825. And see requirements in § 3879 above. Payment of special assessment after thirty day period without interest, when. Op. Atty. Gen. (1918), p. 1466. Sec. 3882. [Construction of sewers without adopting plan or dividing city into districts.]' If in its opinion expedient, the council may provide for the construction of main drains and branch drains connecting therewith without previously adopting any plan of sewerage or division of the territory of the municipal corporation or any part thereof, into districts, and may assess the cost and expense thereof upon such lots or lands as shall be designated in the ordinance to improve, or they may be paid from the sewer fund, or by the municipal corporation at large, as council determines, and such proceed- ings shall be had in respect to such improvements and assess- ments as are provided for herein for the construction of main or branch sewers according to a previously adopted plan. [96 v. 49, § 88.] (1) Old section 2371 R S., repealed. Sec. 3883. [Two or more municipalities authorized to con- struct joint sewers.]' The respective councils of two or more municipal corporations may provide for the construction of a main sewer and branches jointly by such corporations for the | | ; : 429 ASSESSMENTS—-SEWERS. : § 38884 purpose of sewering and draining such corporations or any part thereof, and to agree upon the plan and location of such main sewer, and the terms and conditions on which it shall be constructed and maintained for common use, and the por- tion of the cost and expense thereof to be paid by each cor- poration. For this purpose such corporations may jointly appropriate land either within or without their respective corporations. [96 v. 49, § 89.] (1) Old section (2406-120) R. and use of sewers and sewage dis- S., repealed. posal works, see § 6602-10, et seq., Further as to joint construction Part II. Sec. 3884. [Payment of cost of joint sewers.]? The coun- cil of each such corporation shall provide for assessing such portion of the cost and expenses of constructing any such main sewer or drain as it shall determine to be a proper charge upon the lots and lands within the respective corpora- tions benefited thereby, and the excess over the assessment herein authorized shall be paid from the sewer funds of the corporations respectively, or if the corporations or either of them are divided into sewer districts, from the sewer fund of the district or districts directly or indirectly sewered in whole or in part thereby. If more than one district is go sewered thereby, the council shall apportion the amount to be paid by each district or assessed against the property therein, or such councils, or either, may determine to place the whole cost, or any part thereof, upon the general dupli- eate. [96 v. 49, § 89.] (1) Old section (2406-120) R. S., repealed. Sec. 3885. [Bonds may be issued.]! Bonds may be issued by either or both corporations to provide for the payment of the cost and expense thereof as is provided herein, and the proceedings for the construction of such main sewer or drain, shall, so far as applicable, be conducted according to the pro- visions of this subdivision. [96 v. 49, § 89.] (1) Old section (2406-120) R. S., §§ 2295-6 et seq., under ‘‘Mis- repealed. cellaneous Statutes” in Part I, Serial bonds required.—For pro- supra. visions relating to all bonds, see § 3886 , THE OHIO MUNICIPAL CODE. 430 Sec. 3886. [Advertisement for bids.]' The advertisement for bids for the construction thereof shall be joint, and shall be filed with the clerk of council, and reported to the council of each corporation. Any contract made for the construction of such sewer shall be in the names .of such corporations jointly, but each corporation shall be lable only for such portion of the cost and expense as shall be specified in the ordinances providing therefor. [96 v. 49, § 89.] (1) Old section (2406-120) R.S., repealed. Sec. 3887. [Joint management of such system.]* On com- pletion, such main sewer or drain, branches and appurte- nances, shall be the property of such corporations jointly, and they may take all necessary steps to keep them in proper re- pair and condition and to protect them from damage and im- proper use. Such corporations may by ordinance jointly passed, prescribe the terms and conditions, including the price to be paid therefor, upon which other municipal corporations, public institutions or individuals, may connect with and use such main sewer or drain, and the disposition of the fund arising therefrom.” [96 v. 50, § 90.] (1) Old sections. Compare (2) Tapping sewers. See note §§ (2406-146) and (2406-147) R. to § 3871, ante. S.. repealed. Sec. 3888. [Council may borrow money for construction of sewers.]* The council of a municipal corporation may borrow money, at a rate of interest not exceeding six per cent per annum, to pay the cost and expense of constructing such main sewers, main drains, branches and ditches. [96 v. 50, § 91.] (1) Old section—Compare § 2380 R. S., repealed. Sec. 3889. [Repairs of sewers and ditches.] When it is deemed necessary, council may provide for the repair or re- construction of any sewer, ditch or drain and the proceed- ings for that purpose shall be the same, so far as applicable, as are herein required for the original construction thereof. [R. S. See. 2404; 66 v. 256. | 431 ASSESSMENTS—SEWERS. § 3890 Sec. 3890. [Construction and maintenance of sewer pump- ing stations.]' The councils of municipal corporations, in ac- cordance with the provisions of this title, may provide for the construction and maintenance of such sewer pumping stations, and equip them with necessary machinery and apparatus and provide the necessary buildings therefor, as the council deems necessary. [96 v. 50, § 92.] (1) Old section.—Compare § (2406-121) R. S., repealed. Sec. 3891. [Sewage farm.]’ A municipal corporation may purchase and hold land outside of the corporate limits, to be used as a sewerage farm,” to construct and maintain thereon all the necessary apphances for the proper dispositions of the sewage of such corporation, under such rules and regulations as shall be prescribed by council and approved by the state board of health. [96 v. 51, § 93.] (1) Old section.—Compare (2) Sewage plants and farms. § (2406-105) R. S., repealed. —See §§ 3647 and 3649, ante. Sec. 3891-1. [Council may by ordinance establish rate or charges of rent to be paid city or village.] The council of any city or village which has installed or is installing sewer- age, a system of sewerage, sewage pumping works or sewage treatment or disposal works for public use, may by ordinance establish just and equitable rates or charges of rents to be paid to such city or village for the use of such sewerage, a system of sewerage, sewage pumping works or sewage treatment or disposal works by every person, firm or corpo- ration whose premises are served by a connection to such sewerage, system of sewerage, sewage pumping works or sewage treatment or disposal works. Such charges shall con- stitute a lien upon the property served by such connection and if not paid when due shall.be collected in the same manner as other city and village taxes. The council may change such rates or charges from time to time as may be deemed advisable. Provided, however, that in a municipality operating under a municipal charter the council or other legislative body may establish the schedule of rates herein authorized and provide for its administration by designating § 3891-2 THE OHIO MUNICIPAL CODE. 432 the department or officer of the municipality to be charged with the enforcement of the provisions of this act. [110 v. 370. ] Sec. 3891-2. [Director of public service; general duties.] In a city the director of public service shall manage, conduct and control the sewerage system and sewage pumping, treat- ment and disposal works and when the council has estab- lished a schedule of rates or charges of rents for their use shall collect sewer rentals, and he shall appoint the neces- sary officers and agents for such purposes. [110 v. 370, 371.] Sec. 3891-3. [Board of trustees of public affairs shall manage and control sewerage system, etc.] When the coun- cil of a village has established a schedule of rates or charges of rents for the use of the sewerage system and sewage pumping, treatment and disposal works, the board of trus- tees of public affairs shall manage, conduct and control such sewerage system and sewage pumping, treatnient and disposal works and shall collect sewer rentals and shall ap- point necessary officers and agents for such purposes; and shall assume all duties, in relation to sewers, imposed upon the street commissioner by section 4364 of the General Code, whereupon the street commissioner shall be relieved of such duties... [110 .v:..370, 871.) Sec. 3891-4. [By-laws and regulations.] The director of public service and the board of trustees of public affairs may make such by-laws and regulations as may be deemed necessary for the safe, economical and efficient management and protection of the sewerage system and Sewage pumping, treatment and disposal works; and for the construction and use of house sewers and connections to the sewerage system. Such by-laws and regulations shall have the same force and effect as ordinances when not repugnant thereto or to the constitution or laws of the state. [110 v. 370, 371.] Sec. 3891-5. [Reception and distribution of funds derived from sewer rentals.] The funds received from the collection of sewer rentals shall be deposited weekly with the treasurer of the corporation. Money so deposited shall be kept as a 433 ASSESSMENTS—COLLECTION. § 3892 separate and distinct fund and shall be known as the sewer fund. When appropriated by council, it shall be subject to the order of the director of public service of a city or board of trustees of public affairs of a village. Such director or board shall sign all orders drawn on the treasurer of the corporation against such fund. This fund shall be used for the payment of the cost of the management, maintenance, operation and repair of the sewerage system and sewage pumping, treatment and disposal works and any surplus in such fund may be used for the enlargement or replacement of the same and for the payment of the interest on any debt incurred for the construction of such sewerage system and sewage pumping, treatment and disposal works, and for the creation of a sinking fund for the payment of such debt, but shall not be used for the extension of a sewerage system to serve .unsewered areas or for any other purpose whatso- ever. [110 v. 370, 371.] COLLECTION OF ASSESSMENTS. Sec. 3892. [When special assessments to be certified to county auditor; how collected.]} When any special assess- ment is made, has been confirmed by council, and bonds, notes or certificates of indebtedness of the corporation are issued in anticipation of the collection thereof, the clerk of the coun- cil,? on or before the second Monday in September, each year, shall certify such assessment to the county auditor, stating the amounts and the time of payment. The county auditor shall place the assessment upon the tax list* in accordance therewith and the county treasurer shall collect it in the same manner as other taxes are collected, and when collected pay such assessment to the treasurer of the corporation, to be by him applied to the payment of such bonds, notes or certificates of indebtedness and interest thereon, and for no other purpose. For the purpose of enforcing such collection, the county treasurer shall have the same power and authority as allowed by law for the collection of state and county taxes. >[ 96 v.. 51,..§ 94.]; (1) Old section 2296 R, S., re- (2) In cities, where assessment pealed. books’ may be conveniently kept by § 3893 the auditor, such installments may be by him reported to the clerk of council and certified by the latter. Provision is directory only.— Section 3892, General Code, pro- viding that such certification shall be made on or before the second Monday in September each year is directory merely. Savings & Trust Co. v. Cleveland, 28 O. C. A. 265. The validity of an assessment ordinance for a street improve- ment of a municipality is not affected by its certification or lack of certification to the county auditor. Ib. Compensation of clerk of coun- THE OHIO MUNICIPAL CODE. 434 cil. See Op. Atty. Gen. (1918), 10s 773). (3) Prima facie valid.—An as- sessment on the tax duplicate is presumptively valid and the burden is on the property owner to show in- validity. Murphy v. Sims, 13 Dee. 62. See also Bolton vy. Cleveland, 35 O. S. 319. é Placing on duplicate.—Where tract of land is cut in two by im- provement, whole assessment must not be put on whole tract on the duplicate, but on separate parcels. Spangler v. Cleveland, 35 O. S. 469. Nor should whole assessment be put on one of the lots. Younglove v. Hackman, 43 O. S. 69. FORM OF CERTIFICATE TO AUDITOR OF ASSESSMENTS. Office of the Clerk of Council of the City [or Village] of © & ee '¢.4:0 © eibie To the Auditor of. 2550 County, Ohio: I hereby certify that the special assessments hereinafter set forth have been duly levied by the council of the city ‘for village] Vor, .c Guns 8 upon the lots and lands described below, and are herewith certified to you, as provided by law to be placed upon the tax list and collected as other taxes are collected: Owner No. and sub-division Amount As- or other description of lot. . sessed. SO ae ee es on ne NS IT 2 Near ee Witness my hand and official seal this...... GQy OR 2 ti. ea Re hee (Seal) Se 09 sy © (O66 6" 0 a's fe ae) ‘a a ene eel a Ce eee ewe eens Sec. 3893. [When assessment to be collected by municipal treasurer.] In all other cases, such assessment shall be paid to and collected by the treasurer of the municipality,’ and in any event the clerk of the council, when the receipt is pre- sented to him by the owner, showing the payment of an as- sessment on his property, shall enter such receipt on the mar- gin of the record of the assessment. [96 v. 51, § 94.] 435 ASSESSMENTS—COLLECTION. § 3894. assignments of assessments to con- tractors. But see § 3897, post. (1) Paid to treasurer.—The above provision would seem to forbid Sec. 3894. [Assessment on owner of life estate.] When a special assessment is made on real estate subject to a life es- tate, the assessment shall be payable by the tenant for life, but upon application by the life tenant to the court of com- petent jurisdiction, by action against the owner of the estate in fee, such court, may apportion the cost of the assessment between the life tenant and the owner in fee, in proportion to the relative value of the improvement to their estates, re- spectively, to be ascertained and determined by the court on principles of equity. [R. S. Sec. 2268; 67 v. 80.] (1) In partition case, the pro- Apportionment is according to not actual vision of this section will be applied and payments already made prop- proportionate benefit, benefit. Crawford v. Crawford, 4 Dec. (Re.) 138. erly charged. Ward v. Ward, 9 C. C. 454. See further Cook v. Gilpin, 2 B. 82. Sec. 3895. [Notice of assessment to be published.] Before adopting an assessment made as provided in this chapter, the council shall publish notice for three weeks consecutively, in a newspaper of general circulation in the corporation, that such assessment has been made, and that it is on file in the office of the clerk for the inspection and examination of per- sons interested therein.? (S. & S. 833).] (1) Application of section. — This section applies to all assess- ments made under this chapter and is not limited to assessments by benefits. A study of the his- tory of former Sec. 2278 R. 8., shows that it was originally Sec. 585 of the Municipal Code of 1869 and related then only to assessments by the foot front. As carried into the Revised Stat. Sec. 2278 read: ‘‘Before adopt- ing the assessments so made,” etc., and followed 2277 which provided for an assessing board in case of [R. 8. See. 2278; 66 v. 248, § 585 assessment by benefits. But since Sec. 585 of the Municipal Code of 1869 has never been repealed, and the present section of the G. C. by its terms refers to all assess- ments made ‘*as provided in this chapter,’ it seems that the notice is required in the case of assess- ments made by other methods as well as in assessments by bene- fits. See Maple Heights v. Holtz, 100 O. S. 264, where Sec. 3895 was held to apply to an additional pro rata assessment levied under § 3909. The purpose of the notice § 3896 is obviously to advise the prop- erty owner in order that he may determine whether the proposed assessment will be in excess of the constitutional or statutory limitations. The law is silent as to the mode of procedure in mak- ing up the tentative assessment where not levied according to THE OHIO MUNICIPAL CODER. 436 former sections it was held that the publication of notice was not a con- dition precedent to the levying of assessments, where no damages caused by the improvement were in- cluded in the assessment. Finnell v. Kates, 19 O, S. 405. Effect of notice.—After notice of the assessment is given, all per- sons interested are bound to take the clerk or some other officer to notice of the subsequent proceedings. make it and place it on file pend- Chamberlain vy. Cleveland, 34 O. S. ing the notice. 551. Necessity of notice.—Under benefits, but council may direct Sec. 3896. [What cost of improvement shall include.] The cost of any improvement contemplated in this chapter shall include the purchase money of real estate, or any interest therein, when acquired by purchase, or the value thereof as found by the jury, when appropriated, the costs and expenses of the proceeding, the damages assessed in favor of any owner of adjoining lands and interest thereon,’ the costs and ex- penses of the assessment, the expense of the preliminary and other surveys, and of printing, publishing the notices and or- dinances required, including notice of assessment, and serving notices on property owners, the cost of construction, interest on bonds, where bonds have been issued in anticipation of the collection of assessments, and any other necessary expendi- ture.* [R. S. See. 2284; 83 vy. 115.66 vy. 241.) . (1) Costs of appropriation.—By the provision of Art. XVIII, See. 11, of the constitution as amended in 1912, not more than fifty percent of the expense of - appropriating Property, may be assessed upon benefited property. Prior to this amendment, ‘such assessments were held. unconstitutional. See Dayton v. Bauman, 66 O. 8S. 379;7 C. Tae N. Ry. v. Cincinnati, 62 O S. 465; Youngstown y. Bonnell, 65 O. 8, 575; Dodsworth vy. Cincinnati, 18 CG. C.-288,. For former cases contra, see Cleve- land v. Wick, 180. 8. 303; Norwood v. Ogden, 18 C. C. 869; Krumberg v. Cincinnati, 29 O, 8. 69; Meissner v. Toledo, 31 0. 8. 387; Otis v. Cleveland, 1 Clev, 91. Damages to abutting property for change of grade cannot be in- cluded in the assessment, McGlynn v. Toledo, 22 C. OG. 34 (affirmed, 47 B. 712); Freeman v. Hunter, 7 ©, C. 117; Fridman y. Norwood, 1 C. C. (N. S.) 97; 25 a ©. 258; Bartley v. Cincinnati, 8 ©. C. 226. Cases 437 contra, McMakin v. Cincinnati, 7 N. P. 203; Corry v. Cincinnati, 22 B. 194 Or the cost of grading or lower- ing the street to the new grade. Carlisle v. Cincinnati, 8 C. C. (N. 8S.) 46; Thale v. Cincinnati, 10 Cin. Court Index, No. 103, (2) What costs and expenses included.—Expense of a retaining wall along street, Longworth v. Cin- cinnati, 34 O. S. 101; cost of lateral and cross drain pipes. Jb.; com- pensation of superintendent of work, but not compensation for services of salaried officers. Jb.; expense of removing water boxes on the street, Acklin v. Parker. 29 C. C. 625; 10 C. C. (N. 8.) 248; (aff'd, 78 O. S., 413); small expense of placing a French drain in street, or increasing width of improvement, though not provided for in the ordinance to improve, etc., Hastings v. Columbus, 42 O. S. 585; Taylor v. Wapakoneta, 26 C. C. 285; amount retained as guaranty of good work, but not if retained for repairs, Fridman v. Norwood, 1 C. C, (N. S.) 97; 25 C. C. 258, (aff’d, 49 B. 99); neces- sary sheeting in a trench, not before provided for, Cincinnati v. Anchor White Lead Co., 44 O. S. 243; cost of broken stone beyond that called for in contract, Cincinnati v. Good- man, 5 Rec. 153; expense of curbing, included in street assessment, Ehni v. Columbus, 3 C. C. 494; fees of equalizing board, Chamberlain v. Cleveland, 34 O. S, 551, 569; ex- pense of grading approaches on in- tersecting streets. Butler v. Toledo, 5 O. S. 225; Creighton v. Scott, 14 O. S. 438; expense of advertisement in more than one newspaper, al- though statute provides for ‘“adver- tisement in some newspaper,” Cin- ASSESSMENTS—COLLECTION, § 3896 cinnati v. Davis, 58 O. S. 225, 237; Fridman v. Norwood, 1 C. C. (N.S8.) 97; 25 C, C. 258 (aff’d, 49 B. 99) ; additional cost of retaining wall, MecMakin v. Cincinnati, 7 N. P. 203; interest on installments, Steese v. Oviatt, 24 O. S. 248; interest from time fixed for payment, when as- sessment defective, but amount prop- erly chargeable equals assessments, Gest v. Cincinnati, 26 O. 8S. 275; in- terest on amount justly due from the time the court found it, but not earlier, in the ordinary case, Burk- hardt v. Cincinnati, 7 C. C. 260; Fricke v. Cincinnati, 1 N. P, 98. The fact that preliminary ex- penses such as cost of advertising, serving notices, etc., have been paid out of the general funds of the mu- nicipality, does not prevent such ex- ‘ penses from being lawfully included in the assessment, to reimburse the general fund. Adkins v. Toledo, 27 C. C. 417; 6 C. C. (N. 8.) 433. Municipality does not have to de- duct from assessment the difference between interest which it has to pay on its bonds and interest which property owner pays the city. Borger v. Columbus, 3 N. P. (N. S.) 261; 15 Dec. 476; 27 C. C. 812; 6 C. C. (N. S.) 401. See § 3932. «As to deduction under former statutes, see Fridman v. Norwood, 25 C. C. 258; 1 C. C. (N. 8S.) 97; Mudge v. Evanston, 7 C. C. (N. 8.) 197. Items which cannot be in- cluded.—Compensation for services of salaried officers, Cincinnati v. Longworth, 34 O. S. 101; cost of repair of bad work, Spangler v. Cleveland, 35 O. S. 469; Watterson v. Bradley, 43 O. S. 456; percentage to pay collector’s fees, Jonas v. Cin- cinnati, 18 O. 318; Spangler v. Cleveland, 35 O. S. 469; expenses § 3897 for advertising, etc., where void as- sessment is enforced on ground of es- toppel, Corry v. Gaynor, 22 O. S. 584, 597; interest on bonds which make the assessment exceed the per- centage of value of property allowed by law, Salem v. Mulford, 22 C. C. 397 (affirmed, 62 O. S, 632); fees for service of notice in excess of lawful amount, McGlynn v. Toledo, 22 C. C. 34 (affirmed, 47 B. 712); item of expense not in estimate, THE OHIO MUNICIPAL CODE. 438 whether to be included, see Knorr v. Cincinnati, 21 B. 297 (affirmed without report, 24 B. 371). Determination of council that an item of expense is properly to be included is not conclusive. Reynolds v. Clearwater, 4 Gaz. 129. Additional advertising, etc., is not necessary to allow items prop- erly included in necessary expendi- tures to be included in assessment. Hastings v. Columbus, 42 O, S. 585. Sec. 3897. [When payable; lien of; release of lien.]? Spe- cial assessments shall be payable by the owners? of the property assessed personally, by the time stipulated in the ordinance providing therefor, and shall be a lien from the date of the assessment upon the respective lots or parcels of land as- sessed.* When presented with a receipt from the contractor,‘ in whose favor an assessment is confirmed, or his assigns, showing such assessment on any property for any improve- ment to have been paid, the auditor or clerk shall at once record the fact upon the margin of the record of the assess- ment, with the date of such presentation, from which time such property shall be released from the lien. [R. S. See. 2285 ; 90 v. 50; 66 v. 242.] (1) Object of section is not to define property liable to assessment, but to prescribe the time when the assessment becomes a lien on the property and charge against the owner. Douglass y. Cincinnati, 29 O. S. 165; Cincinnati v. Oliver, 31 OSHS ls Validity of statutes creating per- sonal liability for assessments sus- tained. Hill vy. Higdon, 5 O. S8. 243; Gest vy, Cincinnati, 26 O. S. 275. (2) Owners.—Lessee for ten years is not an owner within mean- ing of this section. Davis v. Cin- cinnati, 36 O. S. 24, Those who were owners at the time of the assessment are liable to personal judgment. Toledo v. Barnes, 8 C. C. 684, 687. Holder of perpetual lease with privilege of purchase is an “owner.” Clements v. Norwood, 32 B. 201. (3) Lien.—The assessment on property is a lien prior to a mort- gage or judgment. Moerlein Brew. Co. v. Westmeier, 4 C. C. 296. But see Donohue vy. Brotherton, 7 N. P. 367. It is superior to a purchase money mortgage. Clifton v. Cincin- MAb woe Ss eooe Lien is for the present value of whole amount, although the assess- ment is payable in installments. Ee ee ee ee ee ee ee 439 Moerlein Brew. Co. v. Westmeier, 4 C. C. 296. A covenant against all claims whatsoever, would include a lien for assessments. Craig v. Heis, 30 O. S. 550. Assessment becomes a lien from the date of the passage of the as- sessing ordinance. Whipple v. To- ledo, 7 C. C. (N. S.) 520, The lien of municipality on real estate for assessments remains on such real estate unaffected by sales and transfers and can be collected as other taxes. Where the property is sold under judicial process, the city need not and should not be made a party. Installments payable at the time and upon the annual dupli- cate, must be paid out of the pro- ASSESSMENTS—COLLECTION. § 3898 ceeds of the sale, and other install- ments will continue a lien to be paid by the purchaser. Makley v. Whit- more, 61 O. S. 587, 595; Hagerty v. Columbus, 14 Dee. 1. Property owners, whose property has been appropriated by the mu- nicipality, are liable for remaining installments of street assessment levied on the property. Cincinnati v. Burnet, 3 O, L. R. 572. Where land on which there is an assessment lien is divided into par- cels and sold, the separate parcels are liable for the liens in the in- verse order for sale. Cincinnati v. Wynne, 19 C. C. 747 (aff'd, 65 O. S. 611). (4) Payment to contractor,— See § 3893, and note. Sec. 3898. [Assessment and penalty recovered by suit.] If . payment is not made by the time stipulated, the amount as- sessed, together with interest, and a penalty of five per cent thereon,! may be recovered by suit? before a justice of the peace, or other court of competent jurisdiction, in the name of the corporation, against the owner or owners,® but the owner shall not be liable, under any circumstances, beyond his interest in the property assessed, at the time of the passage of the ordinance or resolution to improve.* 66 v. 242, § 546.] (1) Interest.—See note (2) to § 3896, ante. Penalty.—No penalty can be col- lected where the assessment is not conclusive, because of irregularities. Upington v. Oviatt, 24 O. S. 232. See also Pike v, Cummings, 36 O. S. 213. If judgment was entered without including penalty, and without ob- jection, no penalty will afterwards be awarded. Evans vy. Cincinnati, 3 B. 856. Where judgment is reversed and [R. S. See. 2286; larger amount assessed, court can not remit penalty. Finnell v. How- all, 2. C. 8. C. R. 150, 155. Where court reduces assessment because beyond statutory limit, no penalty can be recovered. Cincin- nati v. Fugman, 5 N, P. 14. Penalty is due and payable al- though no suit is brought. Toledo v. Platt, 2 N. P. 304; and a tender must include interest and penalty. Ib. County treasurer cannot ac- cept delinquent installment with- out penalty when so certified; can- § 3898 not remit penalty. See Op. Atty. Gen. (1919), p.. 316. Penalties on assessments under this section to be added, when. Op. Atty. Gen. (1915), p. 1291. No authority for placing penalties on delinquent assessments such as are placed on delinquent taxes. State ew rel. v. Sanzenbacher, 32 C. C. 16; 13 C. C. (N. 8.) 356. (2) Action to collect.—When assessment certified to auditor and put on the tax duplicate the action to collect by city does not lie. Fre- mont v. Hayes, 4 N. P. 379. Such action can be brought only by the county treasurer. Ry. Co. v. Bel- laire, 67 O. S, 297. Personal judgment.—Statute making lot owners personally liable is constitutional. Gest vy. Cincin- nati, 26 O. S. 275. But no personal liability exists unless the statute expressly imposes it. Dreake y. Beasley, 26 O. S. 315. Personal liability exists only in case of one owning the lot at the date. of the assessment and petition must aver ownership at that time. Corry v. Gaynor, 21 O. §, 277. Personal judgment can not be had against one in possession who is not an owner. Davis y. Cincinnati, 36 O. S. 24, See further Lowden v. Cincinnati, 2 Disney, 203. Limitation on suit.—Statute of limitations runs not from date of assessing ordinance but from time fixed for payment. Reynolds v. Green, 27 O. S. 416; the limitation is six years. Ib, Ags to whether statute of limitations applies to right to collect assessment, see Brenchweh y, Drake, 31 O. 8. 652; Hartman y. Hunter, 56 O. §. 175; Linn St. Bldg, Ass’n y; Morgan, 47 THE OHIO MUNICIPAL CODE. 440 B. 889; Wasteney v. Schott, 58 O. S. 410. The act of certifying the assess- ment to the county auditor, saves the assessment from the two year limitation on suits for collection. Fox y. Cincinnati, 31 C. C. 613s 13 C. C. (N. S.) 144; aff’d 85 0. 8. 445. An action for recovery of un- paid street assessments is an ac- tion upon a liability created by statute, and is therefore, con- trolled by the six years’ statute of Jimitations. Cincinnati v. Fogarty, 13 N. P. (N. 8S.) 631. Defenses.—No defense to suit to collect assessment, that city has not yet paid the money. Bliss v. Kraus, 16 O. S. 54; nor that proper plan for improvement was not adopted. Toledo v. Grasser, 7 N. P. 396. No set-off to the assessment can be allowed because of damages to property claimed by defendant, Ulm v. Cincinnati, 7 N. P. 278; nor be- cause of injury to defendant by slip- ping on improperly made street, Shroder v. Overmann, 5 N. P. 392; and see Straus y, Cincinnati, 23 B. 359; nor for claim for materials furnished to contractor, Wilson vy. Cincinnati, 5 N. P. 68; nor for claim against contractor for digging more material from lot -owner’s property than licensed to take, Hast- ings v. Columbus, 42 O. S. 585. Reduction for repairs made nece- essary by bad work should be made from the assessment. Hastings v. Columbus, 42 O. §. 585. Money received by municipality for rent of tools need not be de- ducted from assessment. McGlynn v. Toledo, 22 C, C. 34 (affirmed, 47 B, 712.) Pleading, practice and evi- 441 dence.—Averment of “due passage” of resolution is sufficient on demur- rer, though two-thirds vote for pas- sage be required. Jessing v. Colum- bus, 1 C. C. 90. See also Burns v. Patterson, 2 H. 270. Answer denying that requisite number petitioned for improvements needs no reply. Corry v. Campbell, 25 O. S. 134, 140. Where claim has already been ad- judged a lien on the property, no question on demurrer can arise as to validity of improvement or statute of limitations. Columbus _v. Schneider, 12 C, D. 781. Jury trial, whether necessary. Norris v. Casper, 8 N. P., 475, 476. Where assessments have exceeded benefits the trial court, in action to collect, may, upon proper pleadings determine what amount should be assessed; and court may also set aside the assessment and remit the question of amount to city authori- ties. Walsh v. Sims, 65 O. S. 211. Burden of proof is on plaintiff to ASSESSMENTS—COLLECTION. § 3899 show assessment exceeded benefits, when this is the defense. Yost v. Railway Co., 24 C. C. 169; 2 C. C. (N. S.) 519. As to costs, see Ib. Recovery back.—Voluntary pay- ment, what is, see Marietta v, Slo- comb, 6 O. S. 471; Whitbeck v. Minch, 48 O. S. 210; Stephan v. Daniels, 27 O. 8, 527; Groesbeck v. Cincinnati, 51 O. S. 365; Cincin- nati v. James, 55 O. S. 180. Limit of time for recovery back, is one year, by § 12075 G. C." See Groesbeck v. Cincinnati, 51 O. S. 365, , Injunction against assess- ments.—See notes to § 3812. (3) See note to § 3897, ante. (4) Limit of liability applies even where owner is one of three- fourths of property owners who pe- titioned for improvement and asked all costs to be placed on them. Per- sonal judgment can not exceed the value of the property. Laird v. Cin- cinnati, 5 B. 903; 9 Rec. 479. Sec. 3899. [Lien may be enforced against all or part of owners.] Proceedings for the recovery of the assessment may be instituted by the corporation against all the owners, or each or any number of them, or to enforce the lien, against all the lots or lands, or each lot or parcel, or any number of them embraced in any one assessment, but the judgment or decree shall be rendered severally or separately for the amount as- sessed.! Any proceeding may be severed, in the discretion of the court, for the purpose of trial, review or appeal where an appeal is allowed. [R. S. Sec. 2287; 66 v. 242. ] Municipality can not enforce lien after assessment has been certified county auditor. Fremont v. (1) Enforcement of lien.— Lands of cemetery association ex- empt from taxation can not be sold to to pay assessment, but assessment may be enforced by such remedy as courts of equity afford. Lima v. Cemetery Ass’n, 42 O. S. 128. Hayes, 4 N, P. 379. Municipality may buy in prop- erty on which it has a lien. Colum- bus v. Schneider, 7 N. P. 619. § 3900 THE OHIO MUNICIPAL CODE. 442 Sec. 3900. [Lien as to nonresident owner.] In proceed- ings to enforce the lien, when the owner of any lot or land as- sessed is a nonresident of the state, or is unknown, notice shall be given by publication inthe manner prescribed by law in similar cases.'' [R. S. Sec. 2288; 66 v. 242.] (1) Manner of publication.—See §§ 11293-11298 G. C. Sec. 3901. [Costs, in case of error or defect in proceed- ings.]* If in any such action it appears that by reason of any technical irregularity or defect, whether in the proceedings of the council, or of any other officer of the corporation, or in the plans or estimates, the assessment has not been properly made against any defendant or upon any lot or parcel of land sought to be charged,? the court may nevertheless on satisfactory proof that expense has been incurred which is a proper charge against such defendant, or lot or parcel of land in question, render judgment for the amount properly charge- able against such defendant or on such lot or land,* but in such cases the court shall make such order for the payment of the costs as may be deemed equitable and proper.* [R. S. Sec. 2289; 80 v. 52; 66 v. 242.] EE a (1) Validity.—Section 2289 R. S. providing for judgment where as- sessment is invalid because of ir- regularities was held not a viola- tion of the United States Constitu- tion. Railway v. Columbus, 23 B. 3. (2) What irregularities cured. —Irregularity in notice of resolu- tion and ordinance to improve, Green v. Cincinnati, 7 C. C. 233; ir- regularity in estimate of cost of improvement, Wewell vy. Cincinnati, 45 O. S. 407; as to what defects in advertisement are cured, see Wilder v. Cincinnati, 26 O. S. 284, 285; Cincinnati vy. Goodman, 5 Ree. 153; publication of notice on Sun- day, Hasting y. Columbus, 42 O. S. 585; defective advertisement for bids, see Cincinnati y. Bickett, 26 O. S, 49; ordinance to improve passed before time has expired for filing claim, Toledo v. Railway, 4 C. C. 113; failure to advertise for bids for full time required, Upington v. Oviatt, 24 O. S. 232; see also where rate of assessment not uni- form on all property assessed, Jaeger v. Burr, 36 O, S. 164; part of street where sidewalks laid not being brought up to grade, McGlynn vy. Toledo, 22 C. C. 34. aff'd, 47 B., 712; unlawful combination among bidders (in such case property own- ers may obtain a reduction to the extent of actual injury), Hubbard v. Norton, 28 O. S. 116; lowest bid- der released at his own request, Cin- cinnati v. Goodman, 5 Ree. 153. Lowest bid not taken from mis- take in judgment, assessment col: lectible up to fair value of work, 443 Cincinnati v. Hopple, 1 B. 104; no plans and specifications on file when contract made, Becher v. McCloud, 4 C. C. 305; advertisement for bid not as required, Jb.; in such case the reasonable cost is recoverable. Ib. , Where proper proceedings were followed and contract let and new territory then added to one divi- sion, the work being continued un- der the terms of the contract as for the original division, the work actually done and paid for, the irregularity as to the proceedings touching the new territory was cured. Osborne v. Huffman, 14 CoG.) (Noes.) 200 (afe’*d 538:.- 0. S. 697). Assessment ordinance requiring payment at date earlier than its pas- sage is an error that can be cured. Bolton v. Cleveland, 35 O. S. 319. Defects not cured.—Failure to pass improvement ordinance as re- quired by law, Sullivan v. Pausch, 5 C. C. 196; omission to publish pre- liminary resolution, Welker v. Pot- ter, 18 O. S. 85; but see Upington v. Oviatt, 24 O. S. 232; failure to pass assessment ordinance, Brewer v. Bowling Green, 7 C. C. 489; fail- ure to serve land owners with notice of ordinance to improve, Joyce v. Barron, 67 O. S. 264, 268; but see Toledo v. MeMahon, 9 C. C. 194; Kirby v. Winton Place, 7 N. P. 169; omission of notice of resolu- tion declaring necessity to improve, Schmidt v. Elmwood Place, 15 C. C. 351; Welker v. Potter, 18 O. S. 85; Stephan v. Daniels, 27 O. S. 527; Knecht v. Cincinnati, 18 C. C, 875; see also Kelly v. Cleveland, 34 O. S. 468. (Property assessed which was not included in ordinance); collu- sion between city officers and con- _ ASSESSMENTS—COLLECTION. § 3901 tractor, Cincinnati v. Kemper, 17 B. 116; work done before any deter- mination to assess, Folz v. Cincin- nati, 2 H. 261. (3) Amount properly charge- able.—As to ascertainment of such amount, see Wilder v. Cincinnati, 26 O. S. 284; Cincinnati v. Bicket, 26 O, S. 49; Central O. R. R. Co. v. Columbus, 23 B. 3. Court may allow interest from time assessment due on amount properly chargeable. Gest v. Cincin- nati, 26 O. S. 275. See further McCloud v. Columbus, 54 O. S. 439, where this section was applied. Where assessment covers more feet than defendant owns, court may re- duce amount proportionately. Ride- nour v. Saffin, 1 H. 464, 478. When illegal items are included in the assessment, city need not re-as- sess, but court may correct assess- ment. Dodson v. Cincinnati, 4 Ree. 312. Amount chargeable is not amount of benefits but that part of the as- sessment that should have been charged, if assessment had been le- gally made. Cincinnati v. Bickett, 26 O. 8S. 49. It is based on the fair average cost and not the cost in front of each lot. Wilder v. Cincin- nati, 26 O. S. 284. But, though court can correct as- sessment, it can not make an entire- ly new assessment, as council is au- thorized to do by § 3902. Mock- er v. Cincinnati, 7 N. P. 279. As to right of court to fix amount properly chargeable, where assess- ment improperly made, not because of technical error, but because in excess of benefits, etc., see note 2 under § 3819, ante. Jury trial.—Under § 3901 giving the court power to determine the § 3902 amount properly chargeable and award judgment therefor, the issue is not one triable by a jury but by the court. R, R. ‘Co. v. Bellaire, 60 O. S. 301. Applies to injunctions.—Where property owner sues to enjoin collec- tion of assessment, § 3901 applies and court may fix amount properly chargeable. THE OHIO MUNICIPAL CODE. . 444 Where plaintiff in such case ad- mits that part is due he must ten- der such part before he can have in- junction. Griswold v. Pelton, 34 0, S. 482. (4) Costs of a suit to reduce assessment should fall on municipal- ity. Burkhardt v. Cincinnati, 7 C. C260; 2625 *= Sec. 3902. [When reassessment may be ordered.] When it appears to the council that a special assessment is invalid, by reason of informality or irregularity*in the proceedings, or when an assessment is adjudged to be illegal, by a court of competent jurisdiction, the council may order a re-assessment, whether the improvement has been made or not.? 2290; 66 v. 242, § 551.] (1) Right to re-assess.—If property which ought to have been assessed is omitted, the assessment will be enjoined, but the right to make re-assessment will not be prej- udiced. Upington v. Oviatt, 24 O. S. 232. A re-assessment may also be made where the action of the equalization board is unauthorized. Chamberlain v, Cleveland, 34 O. S. 551. Where an assessment was held oid because the city put an assess. ment at one rate on abutting prop- erty and another assessment at a different rate upon lots declared to be speviaily benefited, the right to re-assess was held not to be preju- Jiced. Akron y. Allen, 22 B. 260. Where a contractor was unable to recover an assessment because part of the work was enjoined, but recovered the amount from the city, the city could, on’ the removal of the injunction and completion of the work, reimburse itself by a re- [R. 8. See. assessment. 9 Ree. 727. The right to make a proper re- assessment is not prejudiced where an asssessment is held illegal be- cause the ordinance to improve a street provides for assessment by the front foot, while the assessment of damages to the abutters was by benefits. Dick v. Toledo, 5 C. D. 1675. 110..C. 349. The curative sections apply and a re-assessment may be had, if an assessment is void because made on a wrong basis. Frey v. Findlay, “0.0. 311,327; A re-assessment is valid, even though a portion of the money thereby derived is used for the extension of the improvement be- yond the limits designated. But- ler v. Toledo, 5 O. S. 225, 230. When re-assessment is precluded: See Kelly v. Cleveland, 34 0. S. 468. Uniformity.—An assessment hav- Cincinnati v. Wilder, 445 ing been set aside after settlement has been made as to part of the lots affected, a re-assessment of the lots with respect to which no settlement has been made is not invalid because the lots covered by the settlement are omitted from the re-assessment. Ridenour v. Biddle, 30 C. C. 287; 10 C. C. (N. 8S.) 438. Who may re-assess.—The right to re-assess lies with council, and a court has no power to order a re- ASSESSMENTS—COLLECTION. § 3903 assessment. Mocker et al. v. Cin- cinnati, 4 Dec. 161; 5 N. P. 242. It is not error for the court to refuse to set aside an assessment and submit the question to the city authorities for re-assessment, where the assessment made by the city ex- ceeds in a substantial amount the special benefits conferred, and the trial court may, upon proper plead- ings, determine the amount to be assessed. Walsh v, Sims, Treasurer, 65 O. 8. 211. Sec. 3903. [Proceedings upon reassessment.] Proceedings upon a re-assessment, and for the collection thereof, shall be conducted in the same manner as is provided for the original assessment. [R.S. Sec. 2291; 66 v. 242, § 552.] Sec. 3904. [Special duty of courts.] The court of com- mon pleas and superior courts shall have the jurisdiction au- thorized by this chapter for the collection of any charge or debt, or the enforcement of any lien, notwithstanding the amount involved shall be less than that to which the juris- diction is limited in other cases, and those courts may make such special rules concerning the class of cases’authorized to be brought under this chapter, as will tend to expedite their disposition, and prevent unnecessary costs. [R. S. See. 2294; 66 v. 242, § 553. ] Sec. 3905. [Unpaid assessments to be certified to auditor. ] The council may order the clerk or other proper officer of the corporation to certify any unpaid assessment or tax to the au- ditor of the county in which the corporation is situated, and the amount of such assessment or tax so certified, shall be placed upon the tax list by the county auditor,! and shall, with ten per cent penalty? to cover interest and cost of col- lection, be collected with and in the same manner as state and county taxes, and eredited to the corporation. Such ten per cent penalty shall in no case be added unless at least thirty days intervene between the date of the publication of the ordinance making the levy and the time of certifying it § 3906 to the county auditor for collection.® v. 52; 66 v. 248, § 554] (1) Section construed.—See R. R. Co, v. Sullivan, 32 O. S. 152. Placing on duplicate-—Where assessment had been assigned to contractor it could not be placed on tax duplicate. Horn v. Columbus, ONCE sats Where assessment has been cer- tified to auditor, municipality can not then collect by suit. Fremont v. Hayes, 4 N. P. 379. Only county treasurer can sue. Ry. Co. v. Bellaire, 67 O. S. 297. County auditor not entitled to compensation for preparing a special delinquent assessment duplicate. Marshall v. Wooster, 38 B. 170. (2) Penalty can not be collected if assessment not paid in time be- cause defective. Upington v. Oviatt, THE OHIO MUNICIPAL CODE. 446 [R. S. See. 2295; 80 See further, Hartman v, Hunter, 8 ©. C. 623; 56 O. S. 175. Penalties on assessments under this section to be exacted, when. Op. Atty. Gen. (1915), p. 1291. See also Jb. (1920), p. 314. (3) Other provisions.—See § 3892, which provides that when- ever bonds are issued in antici- pation of the collection of as- sessments, all such assessments (except, of course, those. paid in cash) shall be certified to the county auditor and collected as other taxes. In all other cases assess- ments are collected by the treasurer of the municipality, and these, if unpaid, may be certified as provided in § 3905, above. 24 0. S. 232. Sec. 3906. [Duration of lien.] The lien of an assessment,? shall continue two years from the time it is payable, and no longer,’ unless the corporation, before the expiration of the time, causes it to be certified to the auditor of the proper county, for entry upon the tax list for collection, or causes the proper action to be commenced in a court having gies ae thereof, to enforce such lien against such lots or lands, which case the lien shall continue in force go long as the as- sessment remains on the tax list uncollected or so long as the action is pending, and any judgment obtained, under and by virtue thereof, remains in force and unsatisfied. [R. S. See. 2297 ; 66 v. 243, § 556 (S. & S. 837).] (1) Lien distinguished from sessment. Glaeser y. Cincinnati, 13 that given by § 2667 G. C. Hart- man v. Hunter, 56 O. S. 175. Municipality is not proper party to suit to foreclose mortgage and decree does not discharge lien of as- C. ©. (N: 8.) 558. (2) Suit by municipality to col- lect must be brought within the two years and where petition shows on its face that the two years have oe ee i e a ’ A 447 elapsed it is demurrable. Bonte v. Taylor, 24 O. S. 628. Period injunction is in force is to be deducted. Bell v. Cincinnati, 7N.P. (N. 8S.) 393. (3) Limitation of actions to ASSESSMENTS—COLLECTION. § 3907 collect assessments. See note to § 3898, ante. _ Laches in prosecuting the action does not affect the lien, if action ‘still pending. Glaeser v. Cincinnati, 13 C. C. (N.S.) 558. Sec. 3907. [When new action may be commenced.] If an action is commenced within due time, and a judgment therein for the plaintiff is reversed, or if the plaintiff fails in such action otherwise than upon the merits, and the time limited for the action has expired, a new action may be erumenceidl within one year after such reversal or failure. [R. S. See. 2298; 66 v. 248, § 557. ] Sec. 3908. [Collection of assessment in advance.] The council may, if it deems expedient, cause the assessments to be collected before the work is done or contracted for. [R. S. See. 2299; 66 v. 243, § 558. ] Sec. 3909. [Deficiency or excess of assessments.]’ If an assessment proves insufficient to pay for the improvement and expenses incident thereto, the council may, under the limita- tion prescribed for such assessment, make an additional pro rata assessment to supply the deficiency. In case a larger amount is collected than is necessary, it shall be returned to the persons from whom it was collected, in proportion to the amounts collected from such persons respectively. This sec- tion shall be subject to the limitations contained in other sections of this chapter. (1) Additional assessment.—An additional assessment to complete an improvement for which the original assessment proved insuffi- cient, is an incident of the orig- inal assessment and governed by the law in force when the im- provement proceedings were be- gun. Stuart v. Lakewood, 23 OC. C. (N. 8.) 269. [R. S. See. 2300; 66 v. 243, § 559.] Where an additional pro rata assessment is levied under this section, it is the duty of council to. cause assessment to be filed and published for three weeks in accordance with provisions of § 3895. Maple Hts. v. Holtz, 100 O. S. 264. § 3910 THE OHIO MUNICIPAL CODE. 448 Sec. 3910. [Added territory.]. The provisions of this chap- ter shall embrace territory added to the corporation by an- nexation or otherwise. [R. S. Sec. 2302; 66 v. 244, § 561.] Sec, 3911. [Construction of proceedings with respect to improvements.] Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded, but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained.1 With respect to any assessment heretofore levied, or which may hereafter be levied by the council of any municipal corpo- ration, upon the abutting, adjacent and contiguous, or other specially benefited lots or lands in the corporation, for any part of the entire cost and expense connected with an im- provement authorized by law, the passage by the council of such municipal corporation of an ordinance levying such as- sessment shall be construed a declaration by such council that the improvement for which such assessment is levied is conducive to the public health, convenience and welfare: and no such assessment heretofore levied, or which may here- after be levied, shall be held invalid by any court because of the omission of council to expressly declare in the pro- ceedings and legislation for such improvement and _assess- ment that such improvement is conducive to the public health, convenience or welfare. [108 v.. 1297: R. S: See 2327. ] (1) Applied.—Cincinnati v. She- Gray v. Toledo, 80 O. §, 448; rike, 47 O. S, 217, 222; Connor v. Savings & Trust Co. v. Cleve- Cincinnati, 11 ©. C. 336, (affirmed, land, 28 O. C. A. 265. ‘See note 55 O. S. 82); Ridenour v. Biddle, 6 under § 3812, ante. oOLC: ©. 237; 10 'C. OC. (N. S.) 438; 449 BORROWING MONEY. § 3912 CHAPTER 6. BORROWING MONEY. Sec. 3912. [Special power, how exercised.] Municipal cor- porations shall have special power to borrow money? and to maintain and protect a sinking fund. The power to borrow money shall be exercised in the manner provided in this chap- ter. [96 v. 26, § 9.) (1) Power to borrow.—In the absence of restrictions a municipal- ity has implied power to borrow money to carry into effect other powers granted. Bank v. Chilli- cothe, 7 O. (2nd pt.) 31. But see Dunham v. Opes, 3 C. C. 274, 282, where it is said that this doctrine does not apply where there are re- strictions, as now exist in Ohio. Where a municipality is defending against paying a debt on the ground of its want of power to borrow, a strict construction of powers in its favor will not be adopted. Bank y. Chillicothe, 7 O. (2nd pt.) 381. The only legal borrowing power to meet deficiencies in the rev- enues of a municipality is that provided in Section 38981 G. C. Op. Atty. Gen. (1913), p. 1712. Sec. 3913. General provisions as to bonds.— The “Griswold Act’ (109 O. L. p. 336) as amended (110 O. L. 456) made sweeping changes in the pro- cedure relative to bonds. These acts should both be carefully ob- served. Griswold Act, when not applicable. —This act by its terms became effective Jan. 1, 1922, and applied to all ordinances, resolutions, meas- ures and proceedings pending on that date. Held that this referred only to legislative proceedings and where bonds had been authorized prior to Jan. 1, 1922, but not sold and delivered until after that date, the provisions of § 2295-9 limiting maturity of bonds do not apply. State ex rel. v. Chandler, 105 O. S. 499. See also Op. Atty. Gen. (1922), p. 671. [Corporations may borrow money in anticipa- tion of current revenues and issue certificates of indebted- ness.]' In anticipation of the coilection of current revenues in and for any fiscal year (excepting taxes and assessments to be received for the payment of interest or principal of bonds, notes or other indebtedness), such corporations may borrow money and issue certificates of indebtedness there- for, signed as municipal bonds are signed, but no loans shall § 3914 THE OHIO MUNICIPAL CODE. 450 be made to exceed the amount estimated to be actually re- ceived from such taxes and other current revenues for such fiscal year, after deducting all advances. Such corporation may borrow money and issue certificates of indebtedness in anticipation of the collection of taxes and assessments to be received during the fiscal year for the payment of interest or principal of bonds issued previous to January 1, 1922. The proceeds of any such certificates shall be used only for the purpose for which the anticipated revenues, taxes or as- sessments were raised, collected or appropriated. The sums so anticipated shall be deemed appropriated for the pay- ment of such certificates at maturity. The certificates shall not run for a longer period than six months, nor bear a greater rate of interest than six per cent and shall not be sold for less than par with accrued interest. [110 vy. 456, 458; 109 v. 336, 337; 96 v. 51, § 95.) (1) Old section 2700 R. S., re- pealed. Council may not legally issue certificates of indebtedness against tax collection, when. See Op. Atty. Gen. (1918), pp. 546 and 1456. As to interest on such Municipalities cannot pay inter- est in advance on loans under this section. See Op. Atty. Gen. (1920), p. 856. As to borrowing money in antici- pation of current sinking fund revenues. See Op. Atty. Gen. (1922), certificates, see Op. Atty. Gen. (1915), p. 1867. p. 587. Sec. 3914. [Bonds or notes in anticipation of special assess- ments.]' Municipal corporations may issue bonds in antici- pation of the collection of special assessments.? Such bonds may be in sufficient amount to pay that portion of the esti- mated cost of the improvement or service for which the as- sessments are levied. In the issuance and sale of such bonds the municipality shall be governed by all. restrictions and limitations with respect to the issuance and sale of other bonds,’ and the assessments as paid shall be apphed to the liquidation of such bonds. Municipal corporations may bor- row money and issue notes, due and payable not later than two years from the date of issue, in anticipation of the levy of special assessments or of the issuance of bonds as provided in this section. The notes shall not exceed in amount that portion of the estimated cost of the improvement or service BORROWING MONEY. 451 § 3914-1 for which the assessment is levied. The proceeds of bonds issued in anticipation of the collection of assessments and all of the assessments collected for the improvement shall be applied to the payment of the notes and interest thereon until both are fully paid; and thereafter said assessments shall be applied to the payment of said bonds and interest thereon. Council ordinances and proceedings relating to the issuance of such bonds or notes shall not require pub- lication. [110 v. 456, 458; 109 v. 336, 340; 96 v. 51, § 95.] (1) Old sections 2704 R. S. and 2705 R. S., repealed. (2) Bonds in anticipation of as- sessment.—Prior to the latest amend- (3) anticipation of the assessment may be valid and enforceable. Loeb v. Columbia Twp., 179 U. S, 472. Form of bonds.—It was ment this section authorized the issuance of bonds in anticipation of the levy of special assessments, but the section as it now stands seems to pre-suppose the passage of the assessing ordinance. As to injunction against payment of such bonds, because of irregular- ity in issuing, see Ampt v. Cincin- nati, 3 N, P. 184. Validity of bonds. Although the statute authorizing the assessment is invalid, and assessment can not, therefore, be collected, the bonds au- thorized by same statute issued in Sec. 3914-1. held, under the former statutes that all bonds issued under the authority of former §§ 2700 et seq. R. S. must comply with §.2703 R. S. (now 3918), and express upon their face the purpose of issue and the ordi- nance under which issued. Keehn v. Wooster, 13 C. C. 270. See bond form under § 3939. Maturities. — See §§ 2295-6 et seq. under ‘‘ Miscellaneous Statutes”’ in Part II, as to requirements that all bonds be serial bonds, and as to other general provisions governing their issue. [Bonds, notes, etc., issued by municipal cor- porations in anticipation of special assessments.] Bonds, notes or certificate of indebtedness issued in anticipation of the levy of special assessments or the collection thereof shall be full, general obligations of the issuing municipal corpo- ration, and for the payment of the principal and interest of the same, the full faith, credit and revenues of such munici- pal corporation shall be pledged. [110 v. 456, 459; 109 v. 336, 340; 106 v. 492, 495.]' Sec. 3915. [Notes in anticipation of special assesments. ] Repealed, 109 v. 336. Sec. 3916. [Authority to issue bonds extending indebtedness § 3916 THE OHIO MUNICIPAL CODE. 452 incurred prior to January 1, 1924, by municipality.] For the purpose of extending the time of payment of any indebted- ness created or incurred before the first day of January, 1924, which from its limits of taxation the corporation is unable to pay at maturity, the council thereof may issue bonds! of the corporation or borrow money so as to change but not to in- crease the indebtedness,’ in such amounts, for such length of time and at such rate of interest as the council deems proper, not to exceed six per cent. per annum, payable annually or semi-annually. 170; 89 v. 417; 70 v. 5, § 662.] (1) Purpose.—Under former cor- responding statutes, it was held that such a section as this does not give power to issue bonds of a munici- pality to meet deficiencies in the va- rious departments. It is intended to give the right to issue bonds where a funded indebtedness of the municipality exists. Herrmann v. Cincinnati, 9 C. C. 357, 359 (af- firmed, 52 O. S. 676). Temporary provisions of this sec- tion construed in connection with § 2295-7. See Op. Atty. Gen. (1921), p. 1166. Form and requisites.—See notes to §3939, and see generally, ‘‘ Gris- wold Act’?; 100-0. Uy, 2a005 as amended 110 O. L. 456. Funding bonds.—It is bad policy to issue funding bonds un- der this section to replace notes issued in anticipation of collee- tion of special assessmeiits under Section 3915°G. ©.; a better plan in such case. Op. Atty. Gen. (1914), p. 897. Under this section council may when there are outstanding bonds and before the maturity of such bonds, issue refunding bonds to an amount equal to the original bond issue, at a lower rate of interest and at longer time. But where the [109 v. 336, 339; R. S. See. 2701; 92 v. 368, original bonds were sold at a pre- mium, council can not issue addition- al bonds in excess of original bond issue, to be used to pay holders of original bonds for premiums so paid. Altaffer v. Nelson, Mayor, 18 C. C. 145. As to refunding interest see Cincinnati v. Guckenberger, 60 O. S. 353. ; The indebtedness for which the municipality may issue bonds un- der §3916 must be such as the municipality has power to levy a tax to pay, or already evi- denced by bonds, or such that bonds could have been issued at the time. The mere. ex- istence of claims for which in some manner the municipality is or may be made liable is not sufficient. Newton v. Toledo, 18 O. C. 756, 762 (affirmed, 52 O. S. 649). Under §§3916 and 3917 G. C., municipal corporations are authorized to fund or refund ex- isting valid and binding obliga- tions, but this power cannot ex- tend to notes issued under Sece- tions 3913 and 3915 G. ©. Op. Atty. Gen. (1913), p. 1617. Refunding bonds——Power of council to issue for the purpose of paying compromise claim. Op. Atty. Gen. (1913), p. 1485. 453 An unsatisfied judgment against a city is an indebtedness for which bonds may be issued under Sec. 3916. Op. Atty. Gen. (1919, p- 1032. Held Sections 3931 and 3916 G. C. not inconsistent; Section 5649-3d G. C. not inconsistent with either 3916 or 3931. See Op. Atty. Gen. (1919), p. 885. Authority to issue bonds in pur- suance of the provisions of Sec- tions 3916 and 3917 for payment of salaries of policemen and fire- men and a health officer, when such salaries have become binding obligations against the city, is not restricted by the provisions of Section 5649-3d G. C.; the pro- visions of the Smith one per cent. law, aS an entirety, are applicable to the authority for issuance of such bonds only with respect to the levy for their retirement and for interest thereon, which must be made within the 10 mill limi- tation. Op. Atty. Gen. (1919), p. 909. Deficiencies in sinking fund; when refunding bonds may not legally be issued. See Op. Atty. Gen. (1920), p. 440. Bonds to refund indebtedness. See Op. Atty. Gen. (1922), p. 588. Municipalities not authorized to borrow money to meet anticipated deficiency in current operating reve- nues. See Op. Atty. Gen. (1922), p. 205. Bonds for payment of salaries of municipal officers under this section. See Op. Atty. Gen. (1922), p. 250. Issuance of bonds for cost of appraising water works purchased by municipality. See Op. Atty. Gen. (1922), p. 1090. Validity in general.—Bonds BORROWING MONEY. § 3916 made out in the name of the “town of Perrysburg” when the correct name was the “incorporated village of Perrysburg” were held valid. Fosdick v. Perrysburg, 14 O. S. 472. Bonds to refund will not. be valid if the original bond issue was uncon- stitutional. Keehn v. Wooster, 13 C. C. 270. Bonds issued on faith of Supreme Court decision, will not be invalid- ated by a subsequent decision deny- ing the right to issue such bonds. Gelpke v. Dubuque, 68 U. S. 175, followed, State v. Gibson, 8 N. P. 367; Reese v. Olmstead, 14 O. F. D. 737. Bonds issued under authority of the legislature to pay the moral ob- ligation of a county though the claimants thereon had no cause of action cognizable in a court of law, will be upheld and their payment enforced against the county. N. Y. Life Ins. Co. v. Cuyahoga Co., 106 Fed. 123. Where a municipality has issued its bonds impressed with the seal of the city clerk, not having a seal of the corporation, but the bonds recit- ing that the seal attached is the “corporate seal,” the municipality is estopped to deny the validity of such seal. Defiance v. Schmidt, 14 O. F. D. 408. Certain bonds of the city of Defi- ance recited on their face that they were “issued under and pursuant to the laws of the State of Ohio, and an act of the General Assembly passed Feb. 3, 1887, entitled, ete.” Held that such bonds were valid, even though the particular act re- ferred to was unconstitutional and furnished no authority for their is- sue, since authority was elsewhere § 3916 to be found in the statutes. Defi- ance Vv. Schmidt, 14 O. F, D. 408. Purchase for value without notice.— Where power is given to issue bonds on certain conditions, and the bonds purport to be issued under such law, they will be good in the hands of bona fide purchasers, notwithstanding irregularity in the acts of the authorities issuing them. State ex rel. v. Board of Ed., 27 O. S. 96. See further State v. Com- missioners, 37 O. S. 526. Where a municipality has power, as under this section, to borrow for certain purposes, a bona fide lender will be protected, although the money was desired for an illegal purpose. New Philadelphia, 17 B. 250. And the mere failure to comply with the statutory provisions relat- ing to the issue of bonds will not relieve the municipality from the obligation to repay the money bor- rowed on the faith of such bonds. Ampt v. Cincinnati, 3 N. P. 184. But bonds issued where no power to issue has been given by the leg- islature are invalid even in the hands of bona fide purchasers. Ampt v. Cincinnati, 3 N. P. 184, and cases cited. Where an injunction was allowed restraining the issuing of certain municipal bonds, the decree being entered before the date of the bonds or the time when they purported to be signed and before the ordinance authorizing them could go into op- eration under the statute, the fact that the bonds were in fact signed before the injunction was allowed, and sold will not protect the pur- chasers thereof as innocent purchas- ers for value. Altaffer vy. Nelson, Mayor, 18 C. C. 145. But the THE OHIO MUNICIPAL CODE. Ohio Farmers’ Ins. Co. v.’ 454 rights of a bona fide holder are not affected by the fact that bonds bear a date prior to that of ordinance authorizing them. Kent v. Dana, 100 Fed. 56; 40 C. C. A. 281. A bond under § 3916 above, must show on its face the purpose for which issued, and the ordinance or resolution authorizing it, in order that a purchaser may claim to be a purchaser, for value without notice. Keehn v. Wooster, 13 C. C. 270. Where the bond does not recite any ordinance or resolution author- izing its issue, it is not negotiable paper. Sullivan v. Urbana, 3 Dee. (Re.) 554, If such bond was in fact fraudulently issued, bona fide pur- chasers will not be protected. Ib. The presumption is that the holder of bonds acquired them in good faith and for value. Ampt v. Cincinnati, 3 N. P. 184, and cases cited. A purchaser can not be charged with negligence in not anticipating that the law under which the bonds were issued would be held uncon- stitutional. Life Ins. Co. v. Cuya- hoga Co., 106 Fed. 123, The bona pde purchaser of county bonds issued by officers having no authority to issue them was held not to be protected. In such case the bonds are void. State v. Gib- son, 8 N. P. 367; Hubbard v. Fitz- simmons, 57 0. S. 436. Limitations that purchaser is bound to take notice of. See Miller v. Hixson, 64 O. S, 39. The recital in a bond that it is issued in pursuance of an act of the legislature and ordinances of the city council passed in pursuance thereof, does not put a purchaser upon inquiry as to the terms of the ordinances under which the bonds 455 were issued. Evansville v. Dennett. 161 U. S. 484; Schmidt v. Defiance, 13 O. F. D. 229. Estoppel by recitals.—“It is now firmly established by decisions that if a municipality has power to and does issue bonds containing re- citals of fact and such bonds come into the hands of innocent purchas- ers, such city is estopped from de- nying the truthfulness of such recitals.” Defiance v. Schmidt, 14 O. F, D. 408; Northern Bank v. Por- ter Township, 5 O. F. D. 256; Brad- ford v. Cameron, 15 O. F. D. 310. Where payable.—Bonds can be made payable outside the state. Meyer v. Muscatine, 1 Wall. (U. S.) 384, 391; Lynde v, Wennebago Co., 16 Wall. (U. 8.) 6. (2) Not to increase indebted- BORROWING MONEY. § 3916 ness.—Where a municipality is is- suing bonds to refund its bonded indebtedness, it can not, even by a separate resolution, issue additional bonds (besides those equalling the amount of the original bonds) to pay compensation for premiums paid by holders of original bonds. Altaffer v. Nelson, Mayor, 18 C. C. 145. 'And see § 3925 providing that when new bonds are issued to re- new or refund an indebtedness not yet matured, such new bonds shall not exceed the amount renewed or refunded. As to adding interest to principal and refunding both, see Cincinnati v. Guckenberger, 60 O. S. 353. Mode of procedure. Op. Atty. Gen. (1917), p. 2429. FORM OF RESOLUTION TO ISSUE BONDS UNDER SEC. 3916 G. C. Resolution. ' To provide for the issue of bonds of the city [or village] of............. Inthe BUI OF 9 oe Fs ees. Fe , for the purpose of extending the time of pay- ment of certain indebtedness which from its limits of taxation the said city [or village] is unable to pay at maturity. Be it resolved by the council of the city [or village] of................ State of Ohio: Sec. 1. That certain indebtedness heretofore incurred by the city [or Wiles HORT: Ia PRA OIE , to-wit, that incurred in (here state the manner in which and time when the indebtedness was incurred) to the AMOUNT (Ol Sihc 64,085 is hereby determined and declared to be an ex- isting, valid and binding obligation of said city [or village]. Sec. 2. To provide means to extend the time of payment of said in- debtedness which from its limits of taxation the city [or village] of co yee acy eee oe aes is unable to pay at maturity there shall be issued the bonds of city [or village] of....... Tn antohubelye yey vis Mepeen is Ge ake Mica arn Sec. 3. BASAL LS AER OOO NS vc to an aggregate (From this point the general form of bond ordinance given under §3939 may be adapted beginning with Sec. 2.) Nore.—In the form above given the action of council is called a “resolu- tion,” in accordance with the provisions of § 3917. § 3918, post, requires that bonds shall express upon their face the “ordinance” under which they are issued. It would seem, however, that bonds issued under § 3916 need not § 3917 THE OHIO MUNICIPAL CODE. 456 be authorized by both a resolution and an ordinance, and that one would include the other. See note to § 3918. post. The form above given provides only for cases in which bonds are to be sold to take up and thus postpone the final extinguishment of, an existing indebtedness. If it is desired to exchange new bonds for old and reduce the rate of interest on obligations not matured, this may be done under § 3925, post, and an adaptation of the form given under § 3939 may be used. Sec. 3917. [Indebtedness shall be determined before being refunded.] No indebtedness of such municipal corporation shall be funded, refunded, or extended, unless it shall first be determined to be an existing valid and binding obligation of the corporation by a formal resolution of the council there- of.* Such resolution shall also state the amount of the ex- isting indebtedness to be funded, refunded or extended, the aggregate amount of bonds to be issued therefor, their number and denomination, the date of maturity, the rate of interest they shall bear, and the place of payment of principal and interest. [R. S. Sec. 2701; 92 v. 368, 170; 89 v. 417; 70 v. 5, § 662. | (1) Indebtedness first de- clared.—In a petition in mandamus to compel the mayor to sign certain refunding bonds, the absence of aver- ment that the council first declared the debt to be valid and described the bonds, will be fatal, on de- murrer. State v. Staley, 18 ©. OC. 406 (affirmed, 60 O. S. 632). Sec, 3918. [Bonds shall recite authority for issue.] Bonds issued under authority of this chapter shall express upon their face the purpose for which they were issued,’ and under what ordinance.? [R. S. See. 2703; 66 v. 262. ] (1) When recital required.— All municipal bonds issued under authority of former chapter begin- ning with § 2700 R. S., were held to be subject to requirement of § 2703 R. S. Keehn y, Wooster, 18 C. C. 270. So, bonds to extend the time of payment of certain indebtedness, must comply with this section. Jb. But notes given for a municipal loan need not express upon their face the purpose for which given. Section 3918 applies only to bonds issued to be sold to the highest. bid- der. Ohio Farmers’ Ins. Co. v. New Philadelphia, 17 B. 250, Sufficiency of recital.—Bonds given to refund void bonds, reciting merely that they were given to take up other bonds, “as provided in an ordinance” of the municipality, are not valid, where there was no ordi- nance for their issue. U.S. Trust Co. v. Minera] Ridge, 104 Fed. 851. See also, as to sufficiency of state- 457 ment of purpose, Hensly v. Hamil- ton, 3 C. C. 201; Keehn v. Wooster, 13 C. C. 270; Kent v. Dana, 100 Fed. 56, 40 C. C. A. 281; Clapp v. Marice City, 111 Fed. 103. Effect of non recital.—A bond not containing a reference to the ordinance or resolution authorizing it was held not to be negotiable paper. Sullivan v. Urbana, 3 Dec. (Re.) 554. Municipality will not be estopped to deny legality. Keehn v. Wooster, Sec. 3919. BORROWING MONEY. § 3919 13 C. C. 270; and no one can claim to be innocent purchaser of such bond. Ib. Estoppel by recitals.—See notes to § 3916, ante. (2) Ordinance referred to in § 3918 above, doubtless covers the “formal resolution” required in § 3917, ante. “Ordinance” and “resolution” mean the same thing when the procedure _ respectively required is complied with. Kerlin Bros. v. Toledo, 20 C. C. 603. [Form and requisite of municipal bonds.] Bonds, notes or certificates of indebtedness issued by a municipal corporation shall be signed by the mayor and by the auditor, or the clerk thereof, and be sealed with the seal of the cor- poration.. When issued for street improvements, they shall have the name of the street or portion thereof so improved, and for which they were issued, legibly written or printed upon them.’ (1) Duty of officers.—It would be a breach of duty for the mayor to sign bonds containing false re- citals as to matters and things re- quired to be done to make the bonds valid. Defiance v. Schmidt, 14 O. F. D. 408. Seal.—Where bonds are sealed with the seal of the city clerk, but [R. S. See. 2706 ; 80 v. 66; 66 v. 86, § 666. ] contain a recital that the seal is the corporate seal, the city will be es- topped to deny validity of seal. Jb. (2) Bonds to pay munici- pality’s part of street improve- ment.—This provision not appli- cable to, and such bonds need not have name of street upon them. Heffner v. Toledo, 75 O. S. 413. Sec. 3920. [Bonds may have coupons attached.] Bonds issued as provided in this chapter may, in the discretion of the council, have interest coupons attached. [R. S. Sec. 2707; 66 v. 262, § 667. ] (1) Interest coupons. — The power to issue interest bearing bonds was held to include, of itself, the authority to attach interest cou- pons. State ex rel. v. Comm’rs, 6 O. S. 280, 286. Possession of interest warrants is prima facie evidence of ownership of bonds and their nonpayment. Jb. Sec, 3921. [Character of bonds in certain cases.] Where the corporation is divided into districts for sewerage pur- § 3922 THE OHIO MUNICIPAL CODE. 458 poses, bonds issued for money to pay the expense of con- structing or repairing sewers in any such district, shall have the name and number of the district for which they are issued legibly written or printed upon them.’ [R. S. Sec. 2708; 66 v. 262, § 668.] (1) Application.—This section would apply to bonds issued in an- ticipation of the collection of special assessments, but not to’ bonds for municipality’s part of cost of sewers. Heffner v. Toledo, 75 O. S. 413. Sec. 3922. [Officers to whom bonds shall be first offered.]? When a municipal corporation issues its bonds, it shall first offer them at par and accrued interest to the trustees of the sinking fund, in their official capacity, or, in case there are no such trustees, to the officer or officers of such corporation havy- ing charge of its debts, in their official capacity. If such trus- tees or other officers of the sinking fund decline to take any or all of such bonds at par and accrued interest, the corpora- tion shall offer to the board of commissioners of the sinking fund of the city school district such bonds or go many of them, at par and accrued interest and without competitive bidding as have not been taken by the trustees of the sinking fund, and the board of commissioners of the sinking fund of the city school district may take such bonds, or any part thereof. [99 v. 204, § 97; 96 v. 52, § 97.] (1) Old section 2709 R. S., re- bonds should be made to the pealed. Offer to Industrial Commission. —§1465-58 requires all such bonds, before being offered for sale, to be offered to the Indus- trial Commission of Ohio. And see §1465-58a (109 O. L., p. 47). To whom tender must be made. —Where there has been no ap- pointment of a board of commis- sioners of the district as provided by Section 7614, the tender of an issue of municipal electric light trustees of the sinking fund of the municipality, and not to the board of education. Railway Co. v. Norwalk, 22 C. C. (N. 8.) 590. Effect of non-payment.—A_ pur- chase of bonds from the munici- pality by the sinking fund trus- tees without paying for them does not pass title and their surrender may be ordered. Burns v. Kain, et al, 17 N. P. (N. 8.) 465 (aff’d by court of appeals with- out report).. Sec. 3923. [When bonds may be sold at public sale.]* Only after the refusal of ‘all such officers to take all or any of such bonds at par and interest, bona fide for and to be held 459 BORROWING MONEY. § 3924 for the benefit of such corporation, sinking fund or debt, shall the bonds, or as many of them as remain, be advertised for public sale. In no case shall the bonds of the corporation be sold for less than their par value,’ nor shall such bonds when so held for the benefit of such sinking fund or debts, be sold, except when necessary to meet the requirements of such fund or debt. [99 v. 254, § 97; 96 v. (1) Old section 2709 R. &., re- pealed. This section does not limit the power of trustees of sinking fund under Sec. 4517. Cleveland v. Bakers 256.0, Gi°(N.- 8S.) ° 3695-4 Oh. App. 68. 52, § 97.] Bonds sold for less than par, though void in the hands of one who ille- gally bought them are not void as against an innocent purchaser into whose hands they subsequently came. State ew rel. v. Board of Education, 27 O. S. 96. (2) Sale for less than par.— Sec. 3924. [Notice of sale; publication.]’ Sales of bonds, other than to the trustees of the sinking fund of the city or to the board of commissioners of the sinking fund of the city school district as herein authorized, by any municipal corporation, shall be to the highest and best bidder,’ after publishing notice thereof for four consecutive weeks in two newspapers printed and of general circulation in the county where such municipal corporation is situated, setting forth the nature, amount, rate of interest, and length of time the bonds have to run, with the time and place of sale.* Addi- tional notice maybe published outside of such county by order of the council, but when such bonds have been once so advertised and offered for public sale, and they, or any part thereof, remain unsold, those unsold may be sold at pri- vate sale* at not less than their par value, under the direc- tions of the mayor and the officers and agents of the corpo- ration by whom such bonds have been, or may be, prepared, advertised and offered at public sale. [106 v. 492; 99 v. 254; 96 v. 52, § 97.] (1) Old section.—Section 2709 R. S., repealed. if bids were uncertain, will not be interfered with. Irwin v. Green- ville, 1 Dayton 140, See further as to discretion, Guckenberger v. Dexter, 5 N. P. 429; 60 O. S. 353. (2) Highest bidder.—City coun- cil’s discretion in determining which is the highest and best bid § 3924 As to tender to Industrial Com., see note to § 3922. Where the terms of the highest bid are clearly understood by buyer and seller and the bid is accepted there can be no complaint, as to am- biguity in the terms, by other bid- ders. Atlas Bank v. Cincinnati, 11 Dec. 436. Compliance with advertise- ment.—A bid of 103 5-10 with in- terest is not ambiguous and sufti- ciently complies with an advertise- ment requiring the gross amount of the bid to be stated. , Atlas Bank v. Cincinnati, 11 Dec. 436, A bid offering par and accrued interest to date complies with ad- vertisement stating that no bid will be received for less than par and accrued interest “to date of deliv- ery” for the bid will be construed as meaning payment of interest from date of issue to date of deliv- ery. Hayes v. Board of Education, 22 C. C. 32 (aff’d, 68 O. S. 685). Construction of bids for bonds; terms and conditions found in of- fer of purchaser. See Bell v. Plant City, 22 N. P. (N. S.) 145. Right to reject all bids.—See upon general subject of right to re- ject all bids whether or not ex- pressly conferred by statute, State ex rel. v. Cincinnati, 3 C, C. 542; State em rel. v. Comm’rs, 36 O. S. 326; State v. Comm’rs, 39 O. S. 188; State ew rel. v. Comm’rs, 1 C. C. 194; State ew rel. v. Directors, 5 O. S. 234. (3) Sufficiency of advertise- ment.—An advertisement stating that the bonds are to be delivered on a certain day is sufficient and the sale is valid, although on the day set for delivery, but before the THE OHIO MUNICIPAL CODE. 460 bidding, it is announced that the bonds will be delivered in install- ments covering a period of four months, giving the purchaser the benefit of the interest accruing upon the later installments. Frank- lin v. Baird, 7 N. P. 571. A bidder can not complain of a variance, as to the time of redemp- tion, between the advertisement and the resolution authorizing the bonds, where the bonds were made paya- ble according to the advertisement. State ex rel. v. Allison, 8 N. P. 170. Whether objection can be raised as to sufficiency of advertisement after bonds have been issued and the money is in the treasury, see State -ex rel. v. Anlin, 13 Dec. 334. Charter cities may, by charter provisions, regulate the publica- tion of notices of bond sales, and such provisions will take pre- of the requirements of See Op. Atty. Gen. cedence this section. (1920), p. 655. Bonds sold before date will not be good in the hands of a bona fide purchaser when injunction against their issue was allowed before the date of the bonds. Altaffer v. Nelson, Mayor, 18 C. C. 145. Sinking fund bonds, issued to refund or extend existing obliga- tions, as authorized by -§ 4520, are subject to the provisions of § 3924 above, and can be sold only to the highest and best bidder after adver- tisement. Cincinnati v. Gucken- berger, 60 O. S. 353; Roberts & Co. v. Taft, 109 Fed. 825; 48 ©, C. A, 681. See also § 4522, post. But this section does not limit the power of the trustees of the 461 sinking fund, under § 4517, to protect the credit of the munici- pality. Cleveland v. Baker, 25 CG. C. (N. 8.) 369; 4 Oh. App. 68. (4) Private sale.—When bonds were duly offered and bids received by proper municipal officers, but be- fore time for awarding, municipal- BORROWING MONEY. § 3924 ity was enjoined from awarding the bonds and thereupon all bids were withdrawn (as they could be, any time before acceptance), the officers might lawfully sell such bonds at private sale. Vadakin v. Crilly, 7 C. C. (N. S.) 341 (aff'd, 73 0. S. 380). FORM OF NOTICE OF SALE OF BONDS. Legal Notice. Sealed proposals will be received at the office of the auditor [or clerk] of the city [or village] of.............. , State of Ohio, until 12 o’clock MOOTIE 0 letras s Rinisck ohars Peas , 19...., for the purchase of bonds of the said city [or village], in the aggregate sum of $................ dated the Se AOR ee eee OB 20L « s Bloat o ccs.as sits . LO nce. ala DOMGS: Will “be ient FONE in number and numbered from one to........, both inclusive. Each of said bonds will be of the denomination of $........ Gf any of the bonds is for a fractional amount, so state} and will draw interest atthe rate: of...) vas per centum per annum, payable annually [or semi- annually] on the- first days of ciceik oc ceeds oes Ni Rares en, ere re ) of each year upon presentation and surrender of the interest coupons to be attached to said bonds. Said bonds will be due and payable as follows: Bis. ST sEOr.e Ae is, 5 Enclusive OM ubhe. . fleri dks « Ga Of 4 oh ot eee ee = A0e). IB Ao GOs ee ANCUISIVG ONetHOi sus ix. icdcere + os Cay Of ds aia oars : LOT tiaty CLC Said bonds are issued for the purpose of (here state purpose of issue) and under authority of the laws of Ohio and of §...... of the General Code of Ohio [or of an act of the General Assembly of the State of Ohio passed on the........ COV EOLMA Wars sted ok ee , entitled an act etce.], and under and in accordance with a certain ordinance [or resolu- tion] of the said city [or village] entitled (here state title) passed on wheat, 07 ASV FOL. elas, , Shs UE cpglte rede Said bonds will be sold to the highest and best bidder for not less than par and accrued interest. All bids must state the number of bonds bid for and the gross amount of bid and accrued interest to date of delivery (and if desired, add, “All bids to be accompanied with a certified check, payable to the treasurer of the city [or village] for per centum of the amount of bonds bid for, upon condition that if the bid is accepted the bidder will receive and pay for such bonds ag may be issued as above set forth, within ten days from the time of award, said check to be retained by the city [or village] if said condition is not fulfilled.” ) § 3925 THE OHIO MUNICIPAL CODE. 462 ‘rhe -city’ Lor: villagey Ror kee OU. 5 0206 pie reserves the right to reject any and all bids. Bids should be sealed and endorsed “bids for.............. bonds.” Papel Rath = ah ee hee ites eee 5 igs ccs. » Auditor [or clerk]. Sec. 3925.° [Refunding bonded indebtedness.]' When a municipality has issued bonds subject to call or redemption previous to maturity thereof, and it appears to the council thereof to be for the best interest thereof to exercise such privilege of call or redemption by means of refunding of such indebtedness at a lower rate of interest than is provided in said bonds, then such council may issue for that purpose new bonds?’ with semi-annual interest coupons attached which shall not in any case exceed in amount the outstanding bonded in- debtedness subject, as aforesaid, to call or redemption and proposed to be called, redeemed and refunded. The maturity of the bonds so issued shall not extend beyond the time of the maturity of the called, redeemed and refunded bonds. [109 v. 336, 339; 99 v. 254, § 97; 96 v. 52, § 97.] (1) Old section 2709 R. S. of the new bonds to be exchanged (2) Forms of ordinance or reso- for the old may be adapted from lution effecting such exchange and forms given under § 3939, post. Sec. 3926. [Sale by popular subscription; notice.] Mu- nicipal corporations may issue bonds and other obligations in such denominations as the council may determine and sell them at popular subscription at a price of not less than par. Such bonds may be issued as registered or coupon bonds, or payable to bearer only, and provision may be made for the redemption, retirement or reissue of them, All such bonds Shall be first offered the sinking fund trustees as is provided in the preceding sections, and shall be advertised and sold as provided in such sections, setting forth the amount of bonds to be sold and the denomination in which they will be issued, with an invitation for tenders for all or part of such issue. Such advertisement shall state the time and place when tenders will be opened and the award made. All tenders shall be in sealed envelope and shall not be opened until the day 463 BORROWING MONEY. § 3927 and hour specified in the advertisement. At the time so specified the tenders shall be opened. [99 v. 255, § 97a.] Sec. 3927. [Distribution of bonds.] When sold such bonds shall be distributed to bidders according to the following rules: First, those offering the highest premium for all or part of such bonds shall receive the amount requested by them. Second, those offering the next highest premium shall re- ceive the amount requested by them. This process shall be continued until all of the bonds have been disposed of. In al- loting such bonds, bidders for small quantities shall be given the preference, but the council may reject any and all bids. When such bonds have been advertised and offered for sale in accordance with law, and no bids have been received therefor, or bids insufficient in amount to purchase the en- tire issue or issues of bonds so offered have been received, then and in that event the municipal corporation, in a man- ner to be provided by ordinance, may sell such issue or issues of bonds, or any part thereof, or such balances thereof as have not been sold, either in the denominations originally au- thorized, or in any other denomination not less in any case than one hundred dollars, at not less than par and the ac- erued interest thereupon. The proceeds of such bonds so sold shall be subject to the same uses and restrictions as the proceeds of bonds sold in any other manner provided by law. [104 v. 242; 99 v. 255, § 97a.] Sec. 3928. [Registration of bonds.]1 On demand of the owner or holder of any of its coupon bonds, a municipal cor- poration may issue instead thereof a registered bond, or bonds, of the corporation not exceeding in amount the coupon bonds offered in exchange. The registered bond or bonds shall be signed and sealed as other municipal bonds are signed and sealed, and bear the same rate of interest, be payable both principal. and interest at the same time and place, as the coupon bonds for which the exchange is made, and shall be of such denomination as the holder of the coupon bonds may elect. [97 v. 516, § 98; 96 v. 58, § 98.] (1) Old section 2711 R. S., repealed. § 3929 THE OHIO MUNICIPAL CODE. 464 Sec. 3929. [Payment of interest, exchange and registra- tion.]*| When due, the interest and principal of such’ regis- tered bonds shall be paid only to the person, corporation or firm, appearing by the records of the municipal corporation to be the owner thereof, or order. Such registered bonds may be transferred on such record by the owner in person or by a person authorized so to do by power of attorney duly exe- cuted. The exchange and registration here required shall be transacted by the trustees of the sinking fund at their business office where a registry shall be kept for that purpose which shall show the date, series, denomination and owner of such registered bonds, and the number and series of the coupon bonds for which they were exchanged. [97 v. 516, § 98; 96 v. 538, § 98.] (1) Old section 2711 R. S., repealed, Sec. 3930. [When registered bonds may be issued.]! No registered bonds shall be issued by a municipal corporation until the bonds and coupons offered in exchange shall have been cancelled or destroyed.2. The trustees of the sinking fund may demand of the holder of the coupon bonds a reason- able fee as compensation for the expense of making such ex- change. [97 v. 516, § 98; 96 v. 53, § 98.] (1) Old section 2711 R. S., re- pealed. Lost bonds.—Municipality can- not be compelled to reissue a bond, negotiable by delivery or a non- Sec. 3931. v. 336. (1) Deficiencies for year 1921.— For act authorizing municipalities to fund deficiencies for 1921, is- sue bonds and levy taxes there- Sec. 3932. [Premiums and negotiable bond, in place of its negotiable bond lost by the owner. Citizens Bank vy. Cincinnati, 13 C. C. (N. 8.) 14. [Deficiency bonds; limitation.]: Repealed, 109 for, see 109 v. 17. Deficiencies for year 1919, see 108 v. 709. De- ficiencies for year 1920, see 108 v. 1142, accrued interest.] Premiums and accrued interest received by the corporation from a sale of its bonds shall be transferred to the trustees of the sinking fund to be by them applied on the bonded debt and interest 465 BORROWING MONEY. § 3933 account of the corporation, but the premiums and accrued interest upon bonds issued for special assessments shall be ap- plied by the trustees of the sinking fund to the payment of the principal and interest of those bonds and no others. [96 v. 53, § 100. ] Sec. 3933. [Bonds for improving natural gas works.] ‘The council of a municipal corporation may issue and sell bonds in the manner provided by law, at 2 rate of interest not to ex- ceed six per cent when such council by an affirmative vote of not less than two-thirds of the members elected or ap- pointed thereto by resolution or ordinance, deems it necessary for the purpose of extending, enlarging, improving, repairing or securing a more complete enjoyment of any natural gas works owned by such corporation. [95 v. 478, $1.] Sec. 3934. [Question of issue to be submitted to vote.] Be- fore such bonds are issued, the question of issuing them shall be submitted to the voters of the municipal corporation at a general or special election, when the council thereof, by reso- lution or ordinance, passed by an affirmative vote of not less than two-thirds of all the members elected or appointed there- to, declares it necessary to issue and sell bonds for any of such purposes. It shall fix by such resolution or ordinance the date upon which the question shall be so submitted and shall cause a copy of such resolution or ordinance to be certified to the deputy state supervisors of the county in which such munici- pal corporation is situated. [97 v. 237, § 2; 95 v. 479.] Sec. 3935. [Conduct of the election.] Thereupon the dep- uty state supervisors shall prepare the ballots and make other necessary arrangements for the submission of the question to the electors of the municipal corporation at the time fixed in such resolution or ordinance. The election shall be held at the regular place or places of voting in the municipal corpora- tion, and shall be conducted, canvassed and certified in the same manner, except as otherwise provided by law, as for the election of municipal officers. [97 v. 237, §2; 95 v. 479.] Sec. 3936. [Voting precinct; transfers.] When a special election for such purpose is held in a municipal corporation § 3937 THE OHIO MUNICIPAL CODE. 466 divided into wards, there may be but one voting place in each ward, which shall be designated by the deputy state super- visors of elections, and the notice hereinafter provided for shall designate the voting places in each ward. In cities in which registration is required, if but one voting place is designated in each ward, certificates of removal shall not be necessary, except where transfers are required from one ward to another, and the board of deputy state supervisors of the county shall issue such removal certificates. [97 v. 287, §2; 95 v. 479.] Sec. 3937. [Notices of the election.] Fifteen days’ notice of the submission shall be given in one or more newspapers printed in the municipal corporation once a week for two consecutive weeks, stating the amount of bonds to be issued, the purpose for which they are to be issued, and the time and place of holding the election. If no newspaper is printed therein, the notice shall be posted in a conspicuous place and published once a week for two consecutive weeks in a news- paper of general circulation therein. [97 Vv. 237, §2; 95 vy. 479, | Sec. 3938. [Result of election; form of ballot.] If two- thirds of the voters voting at such election upon the question of issuing the bonds, vote in favor thereof, then, and not oth- erwise, the bonds shall be issued, and a tax may be levied for the purpose of paying the interest and principal upon such — bonds. Those who vote in favor of the proposition shall have written or printed on their ballots, ‘‘For the issue of bonds ;’’ those who vote against it shall have written or printed on their ballots the words, ‘‘Against the issue of bonds.”’ [Ot Vigor, §2; 95 v. 479,] BONDS FOR SPECIFIC PURPOSEs.! Sec. 3939. [When, how and for what Specific purposes municipalities may sell bonds.] When it deems it necessary, the couneil of a municipal corporation, by an affirmative vote of not less than two-thirds of the members elected or appointed thereto, by ordinance,? may issue and sell bonds in such amounts and denominations, for such period of time, a 467 BONDS FOR SPECIFIC PURPOSES. § 3939 and at such rate of interest, not exceeding six per cent per annum, as said council may determine and in the manner provided by law, for any of the following specific purposes :* 1. For procuring the real estate and right of way for an improvement authorized by this section, or for purchasing real estate with a building or buildings thereon, to be used for public purposes, or to be donated to the state of Ohio by deed in fee simple as a site for the erection of an armory. 2. For extending, enlarging, improving, repairing or se- curing a more complete enjoyment of a building or improve- ment authorized by this section, and for equipping and fur- nishing it. 3. For sanitary purposes and for erecting a crematory or providing other means for disposing of garbage and refuse matters, and for erecting public toilet and public comfort stations. 4. For improving highways leading into the corporation, or for building or improving turnpikes, or for purchasing one .or more turnpike roads and making them free. 5. For constructing wharves and landings on navigable waters. 6. For erecting infirmaries. 7. For erecting workhouses, prisons and police stations. 8. For erecting houses of refuge and correction. 9. For erecting market houses and providing market places. 10. For erecting municipal garages, repair shops, storage houses and warehouses. 11. For erecting public halls and public offices. 12. For erecting or purchasing waterworks for supplying water to the corporation and the inhabitants thereof. 13. For erecting or purchasing gas works or works for the generation and transmission of electricity, for the supplying of gas or electricity to the corporation and the inhabitants thereof. 14. For providing grounds for cemeteries or crematories, for enclosing and embellishing them, and for erecting vaults. 15. For constructing sewers, sewage disposal works, flush- ing tunnels, drains and ditches. § 3939 THE OHIO MUNICIPAL CODE. 468 16. For establishing free publie libraries and reading rooms, and free recreation centers. 17. For the establishment of free public baths and munic- ipal lodging. 18. For erecting monuments to commemorate the services of soldiers, sailors and marines of the state and nation. 19. For improving any water course or water front. 20. For the payment of obligations arising from emergen- cies resulting from epidemics or floods,* or other forces of nature. 21. For purchasing and condemning the necessary land for parks, boulevards and public playgrounds, and for im- proving it as well as for improving or completing the im- provement of any existing boulevard, park or parks, or publie playgrounds.® 22. For erecting hospitals and pest houses and for re- building or improving existing hospitals and pest houses. 23. For resurfacing, repairing or improving any existing Street or streets as well as other public highways. : 24. For opening, widening and extending any street or public highway. 25. For purchasing or condemning any land necessary for street or highway purposes, and for improving it or paying any portion of the cost of such improvement. 26. For constructing levees and embankments or paying or improving them, and for improving any water course passing through the corporation. ' 27. For constructing or repairing viaducts, bridges and culverts, and for purchasing or condemning the necessary land therefor. 28. For erecting any building necessary for a fire depart- ment, purchasing fire engines, fire boats, constructing water towers, and fire cisterns, and paying the cost of placing under ground the wires or other signal apparatus of any fire depart- ment, or installing and operating any municipal ice plant for the purpose of manufacturing ice for the citizens of any mu- nicipality. [110 y. 373; 107 v. 553; 106 vy. 536; 102 v. 262; 102..v..153; R..S.: See. 2835; 98 v. 63; 97 vy. 291; 95 v. 318; 90 v. 229; 76 y. 158. ] 469 (1) Act of May 15, r1911.— The sections under the above title ($§ 3939-3953 as re-numbered by the Attorney General), constitute sections 1 to 15 of the Act of May 15th, 1911, (102 O. L. 262), to pro- vide for the issue of bonds by munic- ipal corporations and repeal §§ 3939 to 3954 G. C. Validity.—The act, amending old §§ 2835, 2836 and 2837 R. S., and known as the “Longworth Bond Act,” was held constitutional in Guckenberger v. Henderson, 66 O. S. 692, Not repealed by Smith Law.— This section is not repealed by implication by Sections 5649-2, et seq., fixing limitations with reference to taxation. Rabe v. Board of Education, 88 O. 8S. 403, distinguished. Schieber v. Edon, ae An OS (N83) 378, Nor is the debt creating power conferred upon municipalities af- fected by the tax limitations which have been imposed, and an issue of bonds to meet the costs of street improvements will not be enjoined because not author- ized by a vote of the people, where payment thereof can be made without violation of the tax limitation fixed by the Smith one percent law. Jb. (Reversing Schieber v. Edon, 18 N. P. (N. S.) 94.) Construction of old sections, before amendment, see Dunham v. Opes, 3 C. C. 274 (holding that the former sections outlined the exclu- sive method by which bonds could be issued, where the power was not given to council to act of its own motion, unless § 2687 R. S. confer- red the power, which was not de- cided.) Hensly v. Hamilton, 3 C. C. BONDS FOR SPECIFIC PURPOSES. § 3939 201 (holding gas works to be a local improvement within the meaning of former sections); Cleveland v. Cleveland, 16 C. C. (N. S.) 471 (holding bonds to abolish street crossings under 95 O. L. 356 and bonds to pay for street and sewer improvements are both sub- ject to the provisions of this section). Bonds for cleaning streets not authorized.—A municipality can- not raise money by the sale of bonds to pay for the cleaning of catch basins or streets, under this section. Morgan v. Akron, 19 Ge Cy CN. S.) 219s cai a. Gee0. S. 499. Partial invalidity.— When in one ordinance a municipality pro- vides for the issue and sale of bonds to pay for several separate improvements, for some of which it has authority to issue bonds and for others it has not, an in- junction will not be granted against the entire issue proposed, but only against that part which is for the payment of unauthor- ized improvements. Morgan v. Atrrons 19 “ClO. oN] 3. y= 1005 (aff’d 84 O. S. 499). Yhis section is unconstitutional in so far as it authorizes munici- pal corporations to issue bonds for purchasing an armory site. Op. Atty. Gen. (1915), p. 919. Power of municipality to sell bonds for purpose of erecting poles, wires and other fixtures for transmitting and _ distributing electric current purchased by such municipality from others. Op. Atty. Gen. (1914), p. 989. Council may not under this sec- tion issue bonds to create a fund to be paid to school district li- § 3939 THE OHIO MUNICIPAL CODE. 470 brary. Op. Atty. Gen. (1918), works beyond the corporate p- 1545. limits. Op. Atty. Gen. (1920), Municipal corporation has no p. 40. authority hereunder to issue bonds to construct a bridge in coopera- tion with county commissioners. Op. Atty. Gen. (1918), p. 1051. . When a village makes a joint road improvement with county or township the village issues bonds under Section 6905-3 G. C. Op. Atty. Gen. (1915), p. 373. Inter-county highway through village—bond issue to pay its share. Op. Atty. Gen. (1918), p. 817. May not issue bonds to provide a fund for street improvements to be thereafter determined. Op. Atty. Gen. (1918), p. 1082. When public building has been condemned under § 5629-1, bonds for its repair may be issued un- der § 3939, et seqg., and subject to their limitations. Op. Atty. Gen. (1916), p. 1709. Interpretation as to what pur- poses are included in said _ sec- tion. See Op. Atty. Gen. (1919), p. 830. Bond issue for reconstruction and extending aerial fire and po- lice alarm system. See Op. Atty. Gen., July 2, 1921. Purchase of waterworks.—Non- charter city may buy waterworks from private company by issuing bonds for first payment under section 3939 G. ©., and contract- ing to pay rest of purchase price from earnings of water works and may legally issue mortgage bonds secured only upon utility and its revenues. See Op. Atty. Gen. (1919), p. 1480, Bonds cannot be issued under this section for extension of water Validity of bonds in general, see notes to § 3916, ante. General provisions.—For genéral provisions as to bonds, see 109 O. L. 836, known as the ‘‘ Griswold Act’’; and see particularly pro- visions as to bonds under ‘‘ Mis- cellaneous Statutes’’ in Part II. (2) Ordinance declaring ne- cessity.—Condition precedent.— The proper adoption of the ordinance declaring it necessary to issue and sell the bonds of the corporation for a specified purpose as authorized by the above section, and providing therein for submission of the ques- tion to popular vote, is essential to the validity of all subsequent proceedings and to the bond issue. Gas and Water Co. v. Elyria, 57 0. S. 374, Character of ordinance.—Such or- dinance is of general and perma- nent nature and must be read on three different days. unless the rule is duly dispensed with. Gas and Water Co. v. Elyria, 57 O. S. 374. Such ordinance must provide for but one improvement and can not combine two distinct measures and if it does so, it will not be effectual for either purpose. Jb. Municipality is not authorized to issue bonds to provide a fund from which to pay its part of the cost of improvements that may from time to time be made, but only to pay its part of the cost of specific im- provements. Heffner vy. Toledo, 75 O. S. 413. Municipality may, under this sec- tion, provide for issuing bonds to pay its part of the cost of a specific improvement before the passage of 471 a resolution declaring the necessity for the improvement. Heffner v. Toledo, 75 O. S. 413. Manner of bond issue, it was held under former section,’ must be determined by council and this power could not be delegated to mayor. Gas and Water Co, v. Ely- ria, 57 O. S. 374. Resolution declaring necessity; when not required.—Where bonds are proposed to be issued under the authority of this section and within the limitations named in Sections 3940 and 3941, General Code, the council of a municipal corporation is required to pass but one ordinance authorizing the issue of such bonds in order to complete the legislation necessary to make and pay for such public improvement. Heffner v. Krinn, et al., 98 O. S. 1; distinguishing Gas & Water Oo. v. Elyria, supra. (3) Several improvements un- der one submission.—The ques- tion of increasing size of waterworks system and erecting electric plant in connection therewith. could be submitted as one question, if both were substantially one improve- ment. Ryan v. Orbison, 7 C. C. 30. But the purchase of waterworks and the erection of new ones, are distinct measures and require dif- ferent proceedings, Gas and Water Co. v, Elyria, 57 O. S. 374. The statutory provision for the selling of bonds by a municipality ‘*for erecting or purchasing water works and supplying water to the BONDS FOR SPECIFIC PURPOSES. § 3939 corporation’’ is to be read liter- ally, and cannot be construed to authorize a sale of bonds to pay rental under a lease of water works not yet constructed. Moore v. Village of Elmore, 13 N. P. (N. 8.) 651. Maturities of bonds.—For pro- visions of law limiting maturities of different classes of bonds, and requiring all bonds to be serial, see §§ 2295-9 to 2295-12, under ‘“Miscellaneous Statutes’’, in Part II; and see generally, all of the provisions of the ‘‘Griswold Act’’, 109 O. L. 336, as amended 110 O. L. 456. (4) Floods of 1913.—For act of legislature authorizing local au- thorities to make extraordinary expenditures rendered necessary by the floods of 1913 and to is- sue bonds therefor, see 103 O. L. 141, and amendment, 103 O. L. 760. This act held constitutional. Assur v. Cincinnati, 14 N. P. (N. 8S.) 433 (aff’d 88 O. S. 181). Conservancy law.—Organization of conservancy districts, powers, procedure, ete., see Secs. 6828-1 to 6828-79 G. C. (104 O. L. 13). (5) No authority to issue bonds for sidewalk or retaining wall.— A municipality cannot raise money by the sale of bonds to pay for the construction of a sidewalk and retaining wall in a street, though the improvement of the street is adjacent to a park. Morgan v. Akron, 19 C, C. (CN. 8.) 109; aff’d 84 O. S. 499. FORM OF CERTIFICATE OF FISCAL OFFICER. ROMIGH mei .2. LO ke. To the Council of the City foe Village} of: Pursuant to Sec. 2295-7 general code of Ohies L henabis inertity that the estimated life of the property and improvement contemplated by the proposed ordinance hereto annexed is......... . years, and I further § 3939 THE OHIO MUNICIPAL CODE. 472 certify pursuant to Secs. 2295-9 and 2295-10 that the maximum maturity permitted by law of the bonds authorized in said ordinance is. ........ . years from a date twelve months prior to the date of the earliest maturity of said bonds, and that the same has been calculated in accordance with Sec. 2295-9 of the general code of Ohio. : City Auditor [or] Village Clerk. Note that the above certificate must be made prior to the passage of the ordinance. GENERAL FORM OF BOND ORDINANCE. Ordinance ‘No tee tee (Sec. 3939.) To issue bonds for the purpose of ............ -Whereas the City Auditor [or Village Clerk] has certified to this council the estimated life of the property, asset or improvement proposed to be acquired or constructed from the proceeds of the bonds hereinafter pro- vided, as............years, and has further certified the maximum maturity of such bonds as............ years, and Whereas this council estimates that a tax for said bonds will first appear on the duplicate for the tax year 19... and that the final tax stetlement with the County Treasurer next following the inclusion of a tax for this issue in the Annual Budget by the County Auditor as provided by law will be obtained not ealier than the first day of September, 19___, and will require $............for interest until such taxes are collected and available. Now, therefore, BE IT ORDAINED, By the Council of the City {or Millage |Gfsse: uta. cheeee tate ..., State of Ohio, two-thirds of the mem- bers elected thereto, concurring: Sec. 1. That for the purpose of raising money for (here state any of the purposes for which bonds may be issued), it is hereby declared to be necessary to issue and sell, and there shall be issued and sold, bonds of said city [or village] in the sum of ............ Dollars. Sec. 2. Said bonds shall be of the denomination Og Svs bec each; shall be dated not later than ............ , 19....; shall draw interest at the rate of ...... per centum per annum, payable on the first. days of. Stl Pe Se and ............ in each year, upon presentation and surrender of interest coupons to be attached to said bonds, bearing the facsimile signature of the Auditor lor Clerk], and shall be due and pay- able as follows: (here state the dates of maturity, and aggregate amount maturing at each date. Note,that all bonds must mature serially, and in substantially equal installments. § 2295-12. Note also the provisions of § 2295-12 as to the earliest maturity, and § 2295-9 as to the last maturity. These sections will be found in Part II under “Miscellaneous Statutes’’.) Sec. 3. Said bonds shall be prepared by the City [or Village] Solicitor, be signed by the Mayor and City Auditor [or Village Clerk], sealed with the city [or village] seal, and (in case of city bonds only) recorded in the 473 BONDS FOR SPECIFIC PURPOSES. § 3939 office of the Sinking Fund Trustees; shall express upon their face the purpose for which they are issued, and the fact that they are issued pur- suant to law and this ordinance; shal! be payable, both principal and in- terest, at the office of the Treasurer of the City lor Village] of ........... Or atthe; oliee Of the) A detea tae. Bank, in the City [or Village] of Oe ee ; shall be issued and sold under the direction of the Finance Committee of Council, and shall bear such consecutive numbers as said Committee or the proper officers of the city [or village] may determine. Sec. 4. That the proceeds of the sale of said bonds, except the pre- miums and accrued interest thereon, shall be placed in the city [or vil- lage] treasury to the credit of ............ fund, and shall be disbursed on proper vouchers for the purpose of (here state purpose of bond issue), and for no other purpose, for which purpose said money is hereby appro- priated; and the premiums and accrued interest received from said sale shall be transferred to the Trustees of the Sinking Fund. Sec. 5. That the faith, revenue and credit of the City [or Village] of id AA eee are hereby pledged for the prompt payment of both prin- cipal and interest of the bonds hereinbefore described, in accordance with the laws and constitution of the State of Ohio. See. 6. That for the purpose of providing the necessary funds to pay the interest on the foregoing issue of bonds promptly when and as the same falls due, and also to create and maintain a fund sufficient to dis- charge the said bonds at maturity, there shall be, and is hereby levied on all the taxable property of the City [or Village]of ............ , inaddition to all other taxes, a direct tax annually during the period for which said bonds are to run, in an amount sufficient to provide funds to pay interest upon said bonds as and when thesame falls due, and also to provide a fund for the discharge of the principal of said serial bonds at maturity. That said tax shall be and is hereby ordered computed, certified, levied and extended upon the tax duplicate and collected by the same officers, in the same manner and at the same time that the taxes for gen- eral purposes for each of said years are certified, extended and collected. Said tax shall be placed before and in preference to all other items and for the full amount thereof. All funds derived from said tax levies hereby re- quired, shall be placed in a separate and distinct fund, which, together with all interest collected on the same, shall be irrevocably pledged for the payment of the interest and principal of said bonds when and as the same fall due. Sec. 7. This ordinance shall take effect and be in force from and after the earliest period allowed by law. President of Council. Passed Sad Won 646 ie es 4 le se) 0 16 foe «8 NoTE.—The above form of ordinance may, with slight modifications, be adapted for the issue of all classes of bonds, excepting bonds in antici- pation of special assessments, for which see form under Sec. 3825. § 3939 THE OHIO MUNICIPAL CODE. A474 GENERAL FORM OF MUNICIPAL BOND. United States of America, State of Ohio, Counin ole 345.6 sco. ivan Clay lof Village wore cus bd 5 Prasat Taare Ae, Bond, uO oc ee eee KNOW ALL MEN BY THESE PRESENTS: That the City [or Village]: Of csr.) ta COMUNE, ODE Sabie cs olen , State of Ohio, acknowl- edges itself to owe, and for value received, promises to pay to bearer the Sin ofc Oat tae OO Uars) On the) sence Gay OF 3. .c es See ‘ 19.., with interest thereon from the ....... Cay. and a « 19.., at the DALE Oe tis kote per centum per annum, payable semi-annually, on the SIPSESOAYS GL use eee ISG t,o ome ce at of each year, as evidenced by the coupons hereto attached, until the principal sum is paid. The principal sum and interest thereon are payable in lawful money of the United States of America, at the office of the Treasurer of said city [or village], or at the office of the ............ Bank, in the City [or Vil- lage) of? iE a) » upon presentation and surrender of this bond, and the coupons hereto attached, as they respectively mature. This bond is one of a series of ............ bonds of like tenure and effect (except as to maturity), and datedthe........ GEV Ol icc eerie’ eee . 19...., numbered from ........ Om, Same oes , both inclusive, all of said bonds being of the denomination of $...... each (except bond No...... : which is of the denomination of Denny 4 ), aggregating in amount $...... ; and issued (in case of general bonds, or bonds to extend indebtedness), for the purpose of (here state purpose), (or in anticipation of the collec- State of Ohio, and particularly Section ...... of the General Code, and pursuant to Ordinance No. ........ , duly passed by the council of said city [or village] on the ........ ayers, FY See sk eey tees AND IT IS HEREBY CERTIFIED AND RECITED, that all acts, conditions and things necessary to be done precedent to and in the issu- ing of these bonds, in order to make them legal, valid and binding obliga- tions of said City [or Villages Olio antr to » have been done and performed in regular and due form as required by law; that the faith, credit and revenue of said City: lor Villagel.of \..0. sic Se are hereby irrevocably pledged for the prompt payment of the principal and interest thereof at maturity; that no limitation of indebtedness or tax- ation, either statutory or constitutional, has been exceeded in issuing these bonds; and that due provision has been made for levying and col- lecting annually, by taxation, an amount sufficient to pay the interest on 475 BONDS FOR SPECIFIC PURPOSES. § 3939-1 these bonds as it falls due and to provide a fund for the final redemption of said bonds at maturity. IN WITNESS WHEREOF, the Council! of the City [or Village] of Hp ae , County and State aforesaid, has caused this bond to be signed by the Mayor and Auditor [or Clerk] of said city [or village], and the corporate seal of said city [or village] to be hereto affixed at ASORtNGts tee o LAYVROLe rvs eet eee oe ib A tpi Mayor Auditor (of City). Clerk (of Village). (On back of bond, in case of city bonds only:) Recorded in the office of the Sinking Fund Trustees. Secretary. FORM OF COUPON. Da vhenahe | Meee ee Ones. 70 thee. ties thaiSityoor Village] of 3.000. 502% , in the Countyeot ost. Socal , State of Ohio, will pay to bearer ............ DOLLARS, at the office of the Treasurer of said city [or village] or at the office of the............ Bank, in the City [or Village] of .......... ; being interest then due on its ............ bond, dated’ ie sanines am ; 1k oe PON OGs. ay 2s. Rs We ker ci co eS of Ober 6, e 2 16) at ie) ot a) ene heltele@ ts ele |Site eh¢ Auditor [or Clerk]. (NoTE.—Where bonds are issued pursuant to a vote of the electors, insert after the reference to the General Code, the following: ‘“‘and of a two-thirds vote of the electors of said city [or village] cast at an election regularly and legally called and held therein on the ........ day of ink PER srt eck Soca) Sec. 3939-1. [May issue bonds to construct subway.] When it deems necessary, the council of a municipal corporation, by affirmative vote of not less than two-thirds of the members elected or appointed thereto, by resolution or ordinance, may issue and sell bonds in such amounts and denominations, for such. period of time, at such rate of interest, not exceeding six per cent, and in the manner, as provided by law, to pro- vide for the construction of subways under any street or boulevard or elsewhere. [102 v. 443.] § 3939-2 THE OHIO MUNICIPAL CODE. 476 Sec. 3939-2. [Protection of state property by extension of waterworks system.] When a municipal corporation has within or bordering on its boundaries property belonging to the state of Ohio, the council of said municipal corporation, by an affirmative vote of not less than two-thirds of the mem- bers elected or appointed thereto, by resolution or ordinance, may issue and sell bonds in such amounts and denominations, for such period of time, at such rate of interest, not exceeding six per cent, and in the manner authorized by law, to provide for the protection of said property belonging to the state or any buildings erected thereon by the extension of the water- works system of said municipal corporation to, into or through said property belonging to the state. [109 v. 542.] Sec. 3940. [Yearly bonded indebtedness permitted.] (§ 2.) Such bonds may be issued for any or all of such pur- poses, but the total indebtedness created in any one fiscal year, by the council of a municipal corporation, under the authority conferred in the preceding section, shall not exceed one-half of one per cent of the total value of the property in such municipal corporation as listed and assessed for tax- ation. [107 v. 578; 102 v. 263; R. S. Sec. 2835; 100 v. 53 ; 98 v. 63; 97 v. 291; 95 v. 318. ] (1) Section referred to.—In property so listed and assessed the act of May 15, 1911, the above provision constituted § 2 and the preceding section referred to in the act was § 1 or § 3939 as num- bered by the Attorney General. (2) What bonds included.— See § 3949, post, and notes. Bonds not included.—The muni- cipal corporation issuing bonds un- der orders of state board of health pursuant to § 1249 et seq., shall not be bound by the limitation of § 3940, nor by the limitation imposed by § 3952, but may, if necessary to pro- vide funds to comply with such order, issue its bonds to the extent of five percent of such for taxation, although the limi- tations provided for by §§ 3940 and 3952 GQ, C., have been reached. The full issue of five percent. may, if necessary, be issued in amy one fiscal year, without submission to a vote of the electors. State ex rel. v. Dean, Auditor, 95 O. 8. 108. Bonds issued by a municipal corporation to pay its share of street improvement are subject to the limitation of this section. Op. Atty. Gen. (1915), p. 2185. Limitation herein does not ap- ply’ 16°': 8 1956.. @ C., when. Op. Atty. Gen. (1915), p. 506. Limitation of this section ap- — a a AT7 BONDS FOR SPECIFIC PURPOSES. § 3941 plies to bonds issued under XVIII of the constitution. State, §6953 G. C. Op. Atty. Gen. ex rel., v. Weiler (Ohio Sup. Ct., (1916), p. 1258. The limitations of this and fol- lowing sections known as the Longworth Act, apply to bonds issued against the general credit of the municipality for the pur- chase or construction of a public utility under Sec. 12, Article decided March 16, 1920). Bonds not in excess of one-half of one per cent of tax duplicate. * See Op. Atty. Gen. (1922), p. 1030. Authority to issue bonds after expiration of fiscal year. See Op. Atty. Gen. (1922), p. 102. Sec. 3941. [Net indebtedness limited to 2144%.] The net indebtedness created or incurred by a municipal corporation under the authority granted to it in section 3939 of the Gen- eral Code and all other provisions of law or of the constitu- tion authorizing the creation or incurring of indebtedness without a vote of the electors shall never exceed two and one- half per cent of the total value of all property in such mu- nicipal corporation as listed and assessed for taxation. [109 VW. 000, O48, 102 ve 264° 102 y. 413-10Ll v. 4382'5-G. C3942; R. 8. sec: 2630;°98 v.63; 97 ‘vy, 291; 95 v. 318; 90 v. 229; 76 v. 158.] (1) What bonds included.—See § 3949, post, and notes. Sec. 3942. [Vote for additional bonds.]: § 4. In addition to the authority granted in section one (1) of this actt and supple- mentary thereto, the council of a municipal corporation, when- ever it deems it necessary, may issue and sell bonds in such amounts, or denomination, and for such period of time and rate of interest not exceeding six per cent per annum, as it may determine upon for any of the purposes set forth in said section one, upon obtaining the approval of the electors of the corporation at a general or special election in the following manner. .[102.v..264; R..S. Sec. 2887; 98. v. 66; 97 v..190; 95 v. 321; 91. v. 106; 90 v. 226; 76 v. 158.] (1) The power to re-submit at special election questions of is- suing bonds is discretionary. Op. Atty. Gen. (1913), p. 1621. (2) Section referred to.—Refer- ence is to § 3939, ante. See note to § 3940. § 3943 THE OHIO MUNICIPAL CODE. 478 Sec. 3943. [Action of council necessary.] §5. The council, by resolution passed by an affirmative vote of not less than two-thirds of all the members elected or appointed thereto, shall declare it necessary to issue and sell bonds of the cor- poration.’ Such resolution shall state the purpose and amount of said issue, and shall fix a date upon which the question of issuing and selling such bonds shall be submitted to the electors of the corporation. Council shall then cause a copy of such resolution to be certified to the deputy state supervis- ors of the county in which the corporation is situated. [102 v. 264; G. C. 3949; R. S. Sec. 2837; 98 v. 66; 97 v. 190; 95 v. 321; 91 v. 106; 90 v. 226; 76 v. 158.] (1) Publication of the resolu- Railway Co. v. Norwalk, 22 ©. tion of council declaring the OC. (N. S.) 590. necessity therefor, not required. Referendum on resolution.—See Heffner v. Krinn, 98 O. S. 1. FORM OF RESOLUTION DECLARING NECESSITY OF BOND ISSUE. Resolution. Declaring it necessary to issue bonds for the POLHORS “OTS. Laniene cae Be it resolved by the council of the city [or village]*or. . Per sae ; State of Ohio, two-thirds of all the members elected thereto concurring, that it is necessary to issue and sell bonds in the fiscal year beginning January first, 19.45.40 oi kORMMtO @ puNDpOSE Gof oir heid ts ai. AM ate (here state purpose of bond issue) in an amount greater than one-half of one per cent. of the total value of all property in said city [or village] as listed and assessed for taxation, to-wit: in the sum of $ and that the question of issuing and selling the bonds of said city [or village] in excess of said one-half of one percent, that is, in the sum aforesaid, be submitted to a vote of the qualified electors of said city [or village] at the general election to be held in said city [or Tillage |\ on the <. o. <0 uae ek day of November, 19...., at the regular place or places of voting in said city [or village] and said election shall be conducted, canvassed and certified in the same manner as other general municipal elections. (If the question is to be submitted at a special election, the form Should read: at a special election to be held in said city for that pur- © POSS on “the: %) 33 ee BY Ofte ss ce oe Nao ee That the mayor be and he is hereby directed to give public notice of the time and place of holding said election in the manner provided by law. 479 BONDS FOR SPECIFIC PURPOSES. § 3944 That the clerk be and he is hereby directed to certify a copy of this resolution to the deputy state supervisors of .............. County, Ohio. IPASRCU nas Sere eit ele ee POLO Sects President of Council. ABUCRE Teste Cases oo te sees aeaes ¢ Sec, 3944, [Duty of deputy state supervisors.] §6. The deputy state supervisors shall prepare the ballots and make the necessary arrangements for the submission of such ques- tion to the electors of such municipal corporation at the time fixed in the resolution. [102 v. 264; G. C. 3950; R. S. Sec. DOs GO YOU. dt v. Lo; Sa Ve L1d, dal OT ty, GO 106 90° Fv. 226; 76 v. 158. ] Sec. 3945, [Election.] § 7. The election shall be held at the regular place or places of voting in the municipality, and be conducted, canvassed and certified in like manner, except as otherwise provided by law, as regular elections in the munici- pal corporation for the election of officers thereof. [102 v. 264; G. C. 8951; R. 8. Sec. 2887; 98 v. 66; 97 v. 190; 95 v. 111, 321; 91 v. 98, 106; 90 v. 226; 76 v. 158.] Sec. 3946. [Notice.] § 8. Thirty days’ notice’ of the election shall be given in one or more newspapers printed in the mu- nicipality once a week for four consecutive weeks prior there- to, stating the amount of bonds to be issued, and the purpose for which they are to be issued, and the time and place of holding the election. If no newspaper is printed therein, the notice shall be posted in a conspicuous place and published once a week for four consecutive weeks in a newspaper of general circulation in the township or municipal corporation. [102 v. 264; G. C. 3952; R. S. Sec. 2837; 98 v. 66; 97 v. 190; 95 v. 111, 321; 91 v. 98, 106; 90 v. 226; 76 v. 158. ] (1) Substantial compliance.— absence of any allegations that Publication of notice for four any one was denied the right to successive weeks but covering a vote by the failure of the pub- period of only 26 days, held to lications to cover the full statu- be a substantial compliance with tory period of 80 days. Cincin- the requirements of this law in nati v. Puchta, Mayor, 94 O. 8. § 3947 431; affirming s. ¢. 25 C. C. (N. S.) 458. Slight irregularities will not in- validate.—The statutory provision that polls shall be kept open un- til 6 p. m. is directory only, and the fact that at an election for the purpose of authorizing an is- sue of municipal bonds the polls were closed at 5:30 p. m., is not THE OHIO MUNICIPAL CODE. 480 sufficient to warrant the granting of an injunction restraining the putting forth of such issue, in the absence of fraud or a, positive showing that the result would have been materially changed had the opportunity to vote been ex- tended to 6 p. m. Link v. Karb, 14 N. P. (N. 8.) 244 (aff’d 89 O. 8. 326). FORM OF NOTICE OF ELECTION. Legal Notice. Notice is hereby given that in pursuance of a resolution of the council of the: city [or village] of .+.........; > DASSed LON the yarmaes oaeee day Obese a acy ss AO al one Sh ae , 19...., there will be submitted to the qualified electors of said city [or village] at the general election in the city [or Villuge) or? 34, Ite. FOI AUNEY ie kes och oe day of November, 19...., [or at a special election to be held in the city [or village] or ................ 2 ee oe ee A GEM OLE ol btrrss”. Sueur thule , ete.] the question of issuing bonds of said city [or village] in an amount in excess of one-half of one percent of the total value of all the property in such city [or village] as listed and assessed for taxation, that is to say, in the sum of $.......... for the purpose of (here state purpose of bond issue). If the question is to be sub- mitted at a special election the notice must further, where applic- able, contain a designation of the voting place in each ward as fixed by the deputy state supervisors of election.) Those who vote in favor of the proposition of issuing the bonds as afore- said shall have written or printed on their ballots the words “For the issue of bonds” and those who vote against the same shall have written or printed on their ballots the words “Against the issue of bonds.” o Cg he la. a6 ew Om wee ay ee Sec. 3947, [Two-thirds vote required.] §9. If two-thirds of the voters voting at such election upon the question! of issuing the bonds vote in favor thereof, the bonds shall be issued. Those who vote in favor of the proposition shall have written or printed on their ballots, ‘‘For the issue of bonds;’’ and those who vote against it shall have written or printed on their ballots, ‘Against the issue of bonds.’’ [102 481 BONDS FOR SPECIFIC PURPOSES. § 3048 Meecuae Or (Cs Dodo. tt. on eG, 200l s 98" v.66; 97 wedo0; Gory. 11d, o21> 98 v;98,/1065°90 Vv. 226; °76 v. 158.) (1) Blank ballots or unintelligi- ble ballots cast in an election un- der this section are not to be considered in determining the number voting ‘‘upon the ques- tion.’’ Wellsville v. Connor, 91 Ou 55.28. Effect of majority vote—Where a bond issue is authorized by a majority but not by a two-thirds vote, former § 3952, limiting the issue to 2% percent of the total value of the city property as listed for taxation is applicable, and the authorization is valid only within the limits of the 2% percent restriction. Cincinnati v. Puchta,, Mayor, 20, Cz. C CNS.) 458; aff’d 94 O. S. 4381. Mode of determining whether two-thirds of votes cast were favorable. Op. Atty. Gen. (1917), DEAL: After favorable vote by elec- tors, council may be compelled by mandamus to issue bonds. See Op. Atty. Gen. (1920), p. 292. ORDINANCE AFTER AFFIRMATIVE TO ISSUE BONDS POPULAR VOTE. FORM OF Ordinance No. Use © Sle 6 68 To issue bonds for the purpose of ................- Whereas, at a general election held in the city [or village] of ......... Onley eis. day of November, 19...., [or at a special election held for that purpose on the ........ GON Ate iter as , 19....], the question of issuing the bonds of said city [or village] in an amount in excess of one-half of one percent of the total value of all the property in such city [or village] as listed or assessed for taxation, that is, in ERP EMLEMO Ly tec cates te occ for the purpose of (here state purpose of bond issue) was submitted to a vote of the qualified electors of said city [or village] and, Whereas, two-thirds of the voters voting at such election upon the question of issuing said bonds voted in favor thereof, now therefore, Be it ordained by the council of the city [or village] of .............. ; State of Ohio. Sec. 1, ete. (Follow form of ordinance under § 3939.) Note: Form of bond may be adapted from that given under § 3939, ante; and form of notice of sale of bonds from that given under § 3924, ante. Sec, 3948. [Maximum net indebtedness 5%.] The net in- debtedness created or incurred by a municipal corporation under the authority of sections 3939 and 3942 of the General Code of Ohio and all other provisions of law authorizing the § 3948-1 THE OHIO MUNICIPAL CODE. 482 creation or incurring of indebtedness shall never exceed five per cent of the total value of all property in such municipal corporation as listed and assessed for taxation. [109 v. 336, 341; 102 v. 265; 102 v. 11, § 3954; 101 v. 482, § 3954; G. C. 3954; R. S. See. 2887; 98 v. 66; 97 v. 190; 95 v. 111, 321; 91 v. 98, 106; 90 v. 226; 76 v. 158.] Sec, 3948-1. [Maximum indebtedness in charter municipal- ity 214%.] Exclusive of bonds approved by the electors of the corporation at a general or special election held in the manner provided in sections 3943 to 3947, inclusive, of the General Code of Ohio, the net indebtedness created or in- curred by any charter municipality shall never exceed two and one-half per cent of the total value of all property in such municipal corporations as listed and assessed for taxa- tion. Upon resolutions of its council or chief legislative body, passed by an affirmative vote or not less than two-thirds of all the members elected or appointed thereto, the electors of any such municipality are hereby authorized to vote upon a proposed issue of bonds and the deputy state supervisors of elections of the county are hereby authorized and directed to conduct, canvass and certify any such election in the manner provided in said sections 3943 to 3947. Inclusive of bonds heretofore or hereafter approved by the electors as aforesaid, the net indebtedness of any such municipal corporation shall never exceed five per cent of the total value of all property in such municipal corporation as listed and assessed for taxa- tion. [109 v. 336, 341.] Sec. 3949. [‘‘Net indebtedness’’ defined; what bonds not considered in ascertaining limitation.] The net indebtedness prescribed in sections 3940, 3941, 3948 and 3948-1 of the General Code of Ohio, shall be the difference between the par value of the outstanding and unpaid bonds and the amount held in the sinking fund, judgment fund, bond fund, and other indebtedness retirement funds for their redemption. In ascertaining the limitations of one-half per cent, two and one-half per cent and five per cent, prescribed in sections 3940, 3941, 3948 and 3948-1, the following bonds shall not be considered :1 oy 483 BONDS FOR SPECIFIC PURPOSES. § 3949 (a) Bonds issued prior to April 29, 1902; (b) Bonds heretofore issued to refund, extend the time of payment of, or in exchange for bonds, representing an indebt- edness created or incurred prior to April 29, 1902; (c) Bonds and notes issued in anticipation of the levy or collection of special assessments, either in original or re- funded form, and certificates of indebtedness issued in antici- pation of the collection of current revenues; (d) Bonds heretofore issued for the payment of obliga- tions arising through emergencies caused by epidemics, floods or other forces of nature, and bonds hereafter issued for the replacement or restoration of property destroyed or injured by sudden casualty which could not have reasonably been foreseen, or for defraying the expenses of an extraordinary epidemic of disease; but the aggregate amount of such emerg- ency bonds hereafter issued which may be so excluded from consideration of net indebtedness shall not exceed one-half of one per cent of the total value of all property in the mu- nicipal corporation as listed and assessed for taxation; (e) Bonds heretofore issued to meet deficiencies in the revenue, as provided for in section 3931 of the General Code; (f) Bonds issued for the purpose of purchasing, construct- ing, improving and extending water-works to the extent that the income from such water-works is sufficient to cover the cost of all operating expenses, interest charges and to pass a sufficient amount to a sinking fund to retire such bonds as they become due or to provide for the payment of the interest and principal installments of serial bonds as they become due or bonds heretofore issued, or heretofore authorized by the General Assembly, for municipally owned steam railways, and bonds heretofore issued, or heretofore authorized by a vote of the people, under the authority of sections 4000-16 to 4000-28 inclusive of the General Code, provided that all other bonds issued under the provisions of sections 4000-16 and 4000-28 shall be counted in the limitation unless prior to their issues, the Publie Utilities Commission of Ohio on application made to it by the municipality concerned shall certify that in its opinion the interest and sinking fund charges thereon will be paid the third year of operation from the receipts of the rapid transit system to be constructed. Provided, further, that after § 3949 THE OHIO MUNICIPAL CODE. 484 the end of the third fiscal year of operation of any rapid transit system only such amount of the bonds heretofore or hereafter issued under the provisions of said section shall be excluded from consideration on which the interest, sinking fund and retirement have actually been paid from the receipts of the system during the preceding year, such payment to be certified by the fiscal officer of the municipality. Bonds issued under authority of section 15093 of the Gen- eral Code and subsequent sections thereto of an act relating to cities of the first class having a population exceeding 150,- 000 inhabitants, passed May 4, 1869, and acts supplemental thereto and amendatory thereof. (g) Bonds issued under the authority of section 1259 of the General Code; (h) Bonds issued for the payment of non-contractual final judgments under the authority of section 4 of this act ; (1) Excess condemnation and mortgage bonds issued un- der the authority of section 10 or section 12 of Article XVIII of the Constitution of Ohio and other bonds not secured by the general credit of the municipality. (j) All bonds issued previous to January 1, 1922, and not included in any of the above classes (a) to (1) inelusive, which at the time of issuance were not required by law to fall within the percentage limitations as provided in sections 3941 and 3948 of the General Code. [110 v. 456, 461; 109 v. 336, 341; 102 v. 265; 102 v. 33, § 3946; G. C. 3946: R. S. § 2835b ; 98 v. 66; 97.v. 520.) (1) What bonds included— § 3945 G. C. providing that limita- Voted bonds—In Cleveland v. Cleveland, 32 ©. C. 257, 15 ©. OC. (N. S.) 129 (aff’d 83 O. S. 482), it was held, in construing the pro- visions of § 3939, et seq., before the amendments of 1911, that the Long- worth act, of which the General Code sections were a revision, divided municipal bonds issued thereunder into two distinct classes, voted bonds and unvoted bonds, and the one per cent. and four per cent. limitations applied only to the unvoted bonds ; and it was further held that former tions of one per cent. and four per cent, should not affect voted bonds, meant that in calculating the amount of bonds that might be issued under the limitations of one and four per cent., bonds previously authorized by vote of the people were not to be counted. Bonds issued and not bonds payable.—Under former provisions, it was held that the limitation of one per cent. referred to amount of bonds issued for any calendar year and not amount payable within any 485 calendar year. Smith v. Rockford, 29 C. C, 478, 9 C. C. (N. S.) 465; Heffner v. Toledo, 75 O. S. 413. Bonds to pay municipality’s por- tion of street and sewer improve- ments were held subject to the one per cent. limitation of former pro- visions. Ib. For other cases determining whether bonds were included within those provided for by the Longworth act, see Cleveland v. Cleveland, 18 Dec. 619, 7 N. P. (N. S.) 249 (bonds for paving. sewer construction and abolishing of grade crossings) ; Cin- cinnati v. Von Bargen, 18 Dec. 547, 6 N. P. (N. 8S.) 258, aff’d, 78 O, S. 396, (bonds for completion of Cin- cinnati Waterworks); Platt v. To- ledo, 54 B. 63, (bonds for comple- tion of parts of bridge over naviga- ble river). Limitation exceeded. — Where bonds issued in excess of amount allowed, as to right of persons con- BONDS FOR SPECIFIC PURPOSES. § 3950 tracting with municipality for con- struction of improvements to rely on clerk’s certificate of money in treasury. See Smith v. Rockford, 29 C. C. 478; 9 C..C, (N. S.) 465. Where total amount of bonds au- thorized exceeds the limitation. but contracts entered into and partly executed will not require an amount in excess of limitation, the issue, to extent required to meet such con- tracts will be upheld as binding on the municipality. Smith v. Rock- ford, 29 C. C. 478; 9 C. C. (N. S.) 465. Dividing cost of improvement. —Whether a municipality may make a partial appropriation of property for a waterworks system, which will not involve the issuance of bonds in a sum greater than one per cent, of the tax duplicate and thus evade the submission of the question to popu- lar vote, quere. Knauss v. Columbus, 13 Dec. 200. Sec. 3950. [When certain indebtedness deemed not to exist. ] §12. An indebtedness shall not be deemed to have been created or incurred, within the meaning of this act, until the bonds shall have been delivered under contract of sale. [102 v. 265; G. C. 3944; R. S. Sec. 2835.] Sec. 3951. [Validity of bonds previously issued.] § 13. Bonds issued in the manner hereinbefore prescribed, which at the time of issue were within the limitations herein pro- vided shall continue to be valid obligations of the municipal corporation which issued them. [102 v. 265; G. ©. 3954; R. 8. See. 2837. ] Sec. 3952. [Act takes effect, when.] Repealed, 109 v. 336. Sec. 3953, [Levy.]' §15. For the payment of all bonds herein authorized, unless the interest thereon and redemp- tion thereof is otherwise provided for, council shall levy each § 3953 THE OHIO MUNICIPAL CODE. 486 year during the periods the bonds have to run, a tax in addition to all levies authorized by law, sufficient to pay the interest thereon as it matures, and provide a sinking fund for their redemption at maturity. [102 v. 266.] (1) Section 3954.—Section 3954 was expressly repealed by the act of May 15th, 1911, (102 O. L. 262), and its provisions embodied in that act; but in the numbering of the sections of the act by the Attorney _General there were included only the numbers 3939 to 3953, inclusive. There is therefore no § 3954. DIVISION IV. INSTITUTIONS AND UTILITIES. CHAPTER 1. WATER WORKS. Sec. 3955. [General powers of council.] The council of a municipality may take possession of any land obtained for the construction or extension of water works, reservoirs, or the laying down of pipe, and also. any water rights or ease- ments connected with the use of water. Any land, water right, or easement so taken possession of for water works purposes shall not be used for any other purpose, except by authority of the director of public service and consent of the council.” (1) Application of sections.— Former §§ 2407 R. S., 2409-2423 R. S., 2425-24385 R. S. (of ° which the sections in this chapter are a revision), originally related to the powers and duties of trustees of waterworks to be provided by council. These sections were not re- pealed by the municipal code of 1902, but on the other hand they were not re-enacted in that part of the code relating to cities. They were, however, re-enacted in that part of the code (§ 205), relating to the duties of the trustees of public affairs in villages. It was held, nevertheless, in Hutchins v. Cleveland, 29 C. C. 697, 9 C. C. (N. S.) 226 (aff'd, 79 O. S. 478), that the sections, being left in force by the Code would apply to cities as well as to villages and would [R. S. See. 2407; 66 v. 205, § 334.] govern the department having charge of waterworks in cities as well as the trustees of public affairs in villages. Other provisions. — General power to provide for waterworks is given in § 3619, ante. Power to apply water rent to maintenance of works, ete., is found in § 3619, ante. Power to contract with private company for furnishing water to municipality is given in §§ 3809 and 9324. Works of private company.— Regulations of price charged, see § 3982, post. Powers of private companies, see § 9320, et seq., under title “Gas, Water and Electricity,” in Part II. (2) Municipality as a riparian proprietor, has the right to take water from a stream for the use of 487 § 3956 its waterworks, and other riparian owners cannot complain, if no more is taken than required for the works. Canton v. Shock, 66 O. S. 19. Contra, Warder v. Springfield, 17 B. 398. But the municipality cannot take more Sec. 3956. THE OHIO MUNICIPAL CODE. 488 than a reasonable amount in supply- ing manufacturers with water pow- er, and it cannot supply inhabitants outside the municipality. Canton v. Shock, 66 O. S. 19. [Duties of director of public service.] The director of public service shall manage, conduct and control the water works,’ furnish supplies of water, collect water rents, and appoint necessary officers and agents.” [R. S. See. 2409; 92.v. 192;°90 v: 118; 66 v. 2062] (1) Management. — See also § 4326 giving the director of public service the management of municipal waterworks, and § 4328 giving the director of public service the power to make contracts, purchase supplies, or provide labor for any work under his supervision. Payment of rent by water depart- ment for offices in municipal building. See Op. Atty. Gen. (1922), p. 1109. Powers.—For cases construing the powers of the waterworks trus- tees under former sections of the Revised Statutes, see Fremont v. June, 8 C. C. 124; State v. Griffin, 4 C. C. 156; Cincinnati Cincinnati, 11 C. C. 309. In Fremont v. June it was held that the trustees might contract with a mill owner for part of* his slack water for use in waterworks; in State v. Griffin it was held that the statutes gave the trustees full control of the waterworks, including contracting for enlargements and im- provements and disbursements of the waterworks fund; in Cincinnati ex rel. v. Cincinnati, it was held that the trustees would have power to ap- point experts to investigate as to the condition, sufficiency of the works, ete. ex rel. v. As to the respective powers of council and the director of public service over waterworks, see notes to § 4326. Appointment of bank as agent to collect water rents and electric light- ing charges; compensation. See Op. Atty. Gen. (1921), p. 540. Salary of Director of Public Service payable partly from serv- ice and partly from water works funds; proportion within discre- tion of council. Op. Atty. Gen. (1916), p. 1910. Under former sections of'the Ke- vised Statutes relating to trustees of waterworks it was held that the trustees had no power to purchase or lease real estate. such power be- ing in council and the municipality would not be estopped by the acts of the trustees in so leasing. Dayton v. Cooper Company, 7 N. P. 495. Municipal liability——As to the liability of the municipality for injury caused by breakage of water- pipes, see notes under § 3714, ante. A municipality is liable to a water consumer for negligently cutting off his supply of water, regardless of whether the con- sumer’s contract called for a con- tinuous supply. Cincinnati v. 489 George & Allan, 14 CO. C. (N. 8.) 447, (2) Removal of appointees.— As to the removal of appointees, see § 4247, post. See also § 486-1 WATER WORKS. § 3957 et seq., under ‘‘Civil Service’’, Part II. As to the powers of the trustees under former stat- utes, see Lawrence v. Cincinnati, 3 Rec. 598. Sec. 3957. [By-laws and regulations.] Such director may make such by-laws and regulations as he deems necessary for the safe, economical and efficient management and pro- tection of the water works.t Such by-laws and regulations shall have the same validity as ordinances when not repug- nant thereto or to the constitution or laws of the state. [R. 8. Sec. 2410; 66 v. 206.] (1) Director of Public Service may require patrons to install meters when he thinks it most economical, ete. Op. Atty. Gen. (1912), p. 1664. Sec. 3958. [Assessment and collection of water rents. ] For the purpose of paying the expenses of conducting and managing the water works, such director may assess and collect from time to time a water rent! of sufficient amount in such manner as he deems most equitable upon all tene- ments and premises supplied with water. When more than one tenant or water taker is supplied with one hydrant or off the same pipe, and when the assessments therefor are not paid when due, the director shall look directly to the owner of the property for so much of the water rent thereof as remains unpaid, which shall be collected in the same manner as other city taxes. [R. S. Sec. 2411; 94 v. 57; 90 v. 198; 86 v. 364; 84 v. 10; 71 v. 109.] Power limited.—Power to assess and collect water rents is limited by the statute conferring it. See Ram- (1) Nature of water rent.— Water rent is an assessment rather than a tax. If not paid, the prop- erty may be sold to pay it. Galli- polis v. Trustees, 2 N. P. 161; Alter v. City, 56 O. S. 47. Water rents not a _ preferred claim against property in hands of receiver. Cincinnati v. Schultz, 97 O. S. 317; affirming Schultz v. Cincinnati, 27 O. C. A. 362; 8 Oh, App. 140; 39 O. C. C. 228. say v, Columbus, 12 Dec. 725. The power to “assess and collect water rents’ means power to fix general rates to be assessed equally upon all water takers of a given class; the director is not authorized by this section to bind the munici- pality for a period of years by special contracts with individual § 3959 users. Lake Shore, ete., Ry. Co. v. Elyria, 32 C. C. 449. Service charges and deposits.— The director of public service of a city owning and operating a water works may require con- sumers of water who have in- stalled meters to pay a service charge based upon the size of the meter, as part of the water rent necessary for the mainten- ance of the plant, and may also require of meter users a cash de- posit in advance for a quarterly period. Rogers v. Cincinnati, 14 NwP.y GN. 8.)) 193. But regulations that require such cash deposit in advance of domestic consumers only, and not of commercial or mercantile con- sumers, are discriminatory, un- reasonable, and an abuse of the discretion vested in the director of public service and therefore invalid. Jb. As to discretion of director, see Rogers v. Cincinnati, 13 Oh. App. 472. Director of Publie Service may fix different rates according to amount consumed, ete. Op. Atty. Gen. (1912), p. 1664. Sec. 3959. THE OHIO MUNICIPAL CODE. 490 Bank may act as agent for col- lection. See Op. Atty. Gen. (1921), p. 540. No authority for publishing rules and rates. Op. Atty. Gen. (1918), p. 1138. No reduction can be made for leaks on premises of consumer. Op. Atty. Gen. (1918), p. 639. Expense of publishing notice to consumers of water relative to the payment of water bills is a proper charge against water works. Op. Atty. Gen. (1920), No. 938. Regulations as to water rents. —A regulation that if any party neglect to pay water rent when due the water will be turned off until back rent and damage is paid and a charge of $1.00 made for turning off and on the water, is a reasonable regulation and may be enforced. Mansfield v, Humphrey Mfg. Co., 82 O. S. 216. Where regulations of department provide that property to which wa- ter is supplied shall be held liable for water ‘rents, such rents become a lien on the property, notwith- standing application for water was made by tenant only. Young v. Hamilton, 10 N. P. (N. 8S.) 369. [Disposition of surplus; how taxes applied.]* After paying the expenses of conducting and managing the water works, any surplus? therefrom may be applied to the repairs, enlargement or extension of the works or of the reservoirs, the payment of the interest of any loan made for their construction or for the creation of a sinking fund for the liquidation of the debt. The amount authorized to be levied and assessed for water works purposes shall be ap- plied by the council to the creation of the sinking fund for the payment of the indebtedness incurred for the construction 491 WATER WORKS. § 3960 and extension. of water works and for no other purpose what- ever. [R.S. Sec. 2412; 87 v. 4; 86 v. 299; 66 v. 206.] (1) Validity—This section held constitutional. Cincinnati v. Roet- tinger, 105 O. S. 146. ' (2) Use of surplus exclusive.— The uses set forth in this section are exclusive. Cincinnati v. Roet- tinger, 105 O. 8. 145. Charter _cities.—This _ section applies also to cities under Home Rule charters. Ib. Sec. 3960. [Proceeds from water works shall be separate fund.] Money collected for water works purposes’ shall be deposited weekly with the treasurer of the corporation. Money so deposited shall be kept as a separate and distinct fund. When appropriated by council, it shall be subject to the order of the director of public service. Such director shall sign all orders drawn on the treasurer of the corporation against such fund.2 [R. S. Sees. 2413, 2414; 66 v. 206, §§ 340, 341. ] the treasurer would not be bound to honor them. ‘Trustees v. Corze- lius, 35 O. S. 69. Money raised by bond issue, (1) Charge for reading me- ters. — Consumers cannot be charged for monthly reading of me- ters, in addition to the charge for water used. Bancroft v, Wall. 29 B. 306. (2) Character of orders.— Under former § 2414 R. S. it was held that the orders must show on their face that they were for improvement of waterworks al- ready constructed, it was held, un- der former statutes, was to be paid by the treasurer upon order of the trustees. State v. Griffin, 4 C. C. 156, issued by order of the trustees or Sec. 3961. [Director may make certain contracts.] Sub- ject to the provisions of this title, the director of public ser- vice may make contracts for the building of machinery, water works buildings, reservoirs and the enlargement and repair thereof, the manufacture and laying down of pipe, the fur- nishing and supplying with connections all necessary fire hy- drants for fire department purposes, keeping them in repair, and for all other purposes necessary to the full and efficient management and construction of water works. [R. S. Sec. 2415; 70 v. 11.] (1) Contracts.—As to the powers and duties of the director of public service in making con- tracts generally, see § 4328 et seq, post. § 3962 THE OHIO MUNICIPAL CODE. 492 Sec. 3962. [Investigation by council.] The council of a municipality in which water works are situated or in progress of construction may appoint a committee for the investigation of all books and papers, and all matters pertaining to the management of the water works, at least once a year, and oftener, if necessary, by reason of neglect of duty or mal- feasance on the part of any officer of the works. Any such officer found by such committee so offending shall be liable to removal from office by the council. [R. S. See. 2416 : 66 v. 206. ] Sec. 3963. [Water supply free for certain purposes.]' No charge shall be made by a city or village, or by the water- - works department thereof, for supplying water for extin- guishing fire, cleaning fire apparatus, or for furnishing or supplying connections with fire hydrants, and keeping them in repair for fire department purposes, the cleaning of mar- ket houses, the use of any public building belonging to the corporation, or any hospital, asylum, or other charitable in- stitutions, devoted to the relief of the poor, aged, infirm, or destitute persons, or orphan or delinquent children, or for the use of the publie school buildings in such city or village. But in any ease where the school district, or districts, in- clude territory not within the boundaries of the eity or vil- lage, a proportionate charge for water service shall be made in the ratio which such tax valuation of the property outside the city or village bears to the tax valuation of all the prop- erty within such school district, subject to the rules and regu- lations of the waterworks department of the municipality governing, controlling, and regulating the use of water con- sumed. [108 vy. 1160; 102 v. 94: R. S. See. 2417; 76 v. 84; 70 v. 11.) (1) Validity.—This section as Water rates for schools, hospi- originally enacted was held consti- tals, and libraries — classification tutional in Gallipolis v. Trustees, of rates. Op. Atty. Gen. (1918), 2.N. P. 161. p. 800. County Orphans’ Home located Free water, gas and electricity, within corporation is entitled to when used for public purposes. See water from municipal plant free Op. Atty. Gen. (1923), No. 982. of charge. Op. Atty. Gen. (1916), Consumers outside municipality. Di O18; See Op. Atty. Gen. (1923), No. 977. 493 For further construction of this section, see Op. Atty. Gen. (1920), pp. 71, 75, 290 and 325. Payment of water rents by library trustees of school districts partly WATER WORKS. § 3964 This section, in so far as it re- quires free water to be furnished to charitable institutions, held uncon- stitutional. Euclid v. Camp Wise, 102, 0. S. 207. outside of municipal corporation. See Op. Atty. Gen. (1921), p. 96. Sec. 3964. [Protection to attachments.] Attachments of whatever nature made to the water pipes or other’ fixtures belonging to the water works and intended for public use shall be subject to the same supervision, rules and regulations as are made for the protection of water works against abuse, destruction and unnecessary use or waste of water or the director of public service may make general or special rules and regulations for such purpose. [R. 8. See. 2418; 66 v. 207. | Sec. 3965. [Bond of contractor, emergency.] Before en- tering into any contract for work to be done, the director of public service shall require bond to be given, with good and sufficient surety, for the faithful performance of the work.* In case of emergency, by a vote of two-thirds of all the mem- bers elected thereto, the council may authorize such director to enter into such contract without advertising. [R. S. Sees. 2419, 2420; 66 v. 207, §§ 346, 347 (S. & C. §§$ 1529, 1530).] (1) Awarding contract.—See, v. McKisson, 15 C. C. 517, (aff’d, generally, notes to § 4328, post. Discretion of officers, in de- termining bidder to whom contract should be awarded, under provisions of former § 2419 R. S., see Fergus 54 O. S. 673). Certificate of money in treasury held not necessary in case of such contracts under former laws. Fergus v. Columbus, 6 N. P, 82. v. Columbus, 6 N, P. 82; McClain Sec. 3966. [Extension of public utility service beyond cor- porate limits.]' On the written request of any number of citizens living outside of the limits of: a municipal corpora- tion, the corporation may extend, construct, lay down and maintain aqueduct and water pipes, and electric light and power lines outside the corporate limits, and for such pur- pose may make use of such of the public streets, roads, al- leys and public grounds as may be necessary therefor, provided however aqueduct and water pipes shall not ex- § 3967 THE OHIO MUNICIPAL CODE. 494 tend more than five miles beyond the corporate limits. [110 v. 38; 109 v. 37; R. S. Sec. 2421; 90 v. 35; 66 v. 207.] (1) Water works extensions out- Liability of municipality for con- side municipality. See Op. Atty. version of water pipes laid by private Gen. (1920), p. 40. owner. See Lakewood v. Newell, Issues of bonds for such pur- 28C. D. 682. pose. See Op. Atty. Gen. (1920), p. 40. Sec. 3967. [Expense of service beyond corporate limits.] When a person or persons at his or their expense have laid down and extended mains and water pipes or electric light and power lines beyond the limits of a municipal corporation, and the corporation by resolution of the council, has autho- rized the proper officer of the water works to superintend or supervise the laying and extension of such mains and water pipes or electric light and power lines the corporation shall furnish water or electricity to-the residents and property holders on the line of such mains and water pipes or electric light and power lines subject to the same rules and regula- tions that it furnishes water or electricity to its own citizens, except that the rates charged therefor shall not exceed those within the corporation by more than one-tenth thereof. [109 v. 387; R. 8. See. 2421; 90 v. 35; 66 v. 207.] Sec. 3968. [Supervision of territory having water service outside municipality.] All ordinances, except those relative to taxation or assessment, resolutions, rules and regulations relative to the construction, maintenance and operation of water works, mains, hydrants, service pipes and connections, and the protection thereof, shall operate in like manner in the territory outside the municipality when such extensions have been made, and for the enforcement thereof the juris- diction of the mayor and police shall extend into and over such territory. [R. S. Sec. 2421; 90 v. 35; 66 v. 207. |] Sec. 3969. [Disposition of mains and pipes in case of an- nexation.] The corporation shall take full charge and con- trol of such mains and water pipes, keep them in repair at its own expense, and, in case of annexation to thé corporation of such territory, the corporation shall pay to such person or persons a just compensation therefor and shall thereupon 495 WATER WORKS. § 3970 become the owner of them. [R. S. Sec. 2421; 90 v. 35; 66 v. 207. ] Sec. 3970. [Regulation and protection thereof.] Such aqueducts and pipes shall be so constructed and laid as not to interfere unnecessarily with the use of such streets, roads, alleys and public highways and public grounds, and the cor- poration so extending and establishing any part of its water works outside of its limits shall have the same power and jurisdiction to prevent or punish pollution of or injury to the water so conveyed or injury to the works or any portion thereof as it has within the limits of such corporation. [R. S. Sec. 2422; 66 v. 208. ] Sec. 3971. [Water works in contiguous municipality. ] A municipality owning water works whose territory is contig- uous to that of another municipality with the assent of such other municipality, may establish and maintain such portion of its water works as it deems advisable within the limits of such other municipality and may make such use of the public streets, alleys and public grounds thereof as is necessary to construct, lay down and maintain all such aqueducts and water pipes as are required in connection with such water works for the conveyance of water along and across such streets, alleys and public grounds. [R. S. Sec. 2423; 66 v. 208. | Sec. 3972. [Construction, regulation and protection there- of.] Such aqueducts and pipes shall be so constructed and laid as not to interfere unnecessarily with the use of such streets, alleys and public grounds as public highways and public grounds. A municipality so establishing a part of its ‘ water works within the limits of such other municipality shall have jurisdiction to prevent or punish the pollution of or injury to water so conveyed or of the stream or source frora which it is obtained or any injury to any portion of the water works go located within the limits of such other municipality. [R. S. See. 2424; 66 v. 208. ] Sec. 3973. [Authority to supply other municipalities.] A municipality which has water works or electrie works may § 3973-1 ‘THE OHIO MUNICIPAL CODE. 496 contract with any other municipality’ for the supply of the latter or its inhabitants with water or electricity upon such terms as are agreed upon by their respective councils. A municipality which has water works may dispose of surplus water, for manufacturing or other purposes, by lease or otherwise, upon such terms as are agreed upon by the direc- tor of public service or trustees and approved by the council thereof. Moneys received for such surplus water in either case shall be applied to the payment of the principal and interest of the bonds issued for the construction of such water works, or other expenses incident to the maintenance of the water works, but no lease shall be made for a longer term than twenty years. [110 v. 38, 39; R. S. See. 2425; 99 v. 249; 69. vy. 25.]' (1) Former statute limited the ages. Wright v. Kennedy Heights, right to contiguous cities or vil- 25 C. C. 409; 10. C. (N. S.) 195. Sec. 3973-1. [Construction by two or more municipalities for water supply.] Two or more municipalities may unite in the construction of a water works plant for the purpose of supplying water to such municipalities and the inhabi- tants thereof for domestic, manufacturing and other pur- poses. Such municipalities shall have power, through their duly authorized officers, to contract with each other for the construction and maintenance of such water works, and to agree as to a division of the cost and maintenance of such plant and a division of the water produced thereby. [107 v. 419.] Sec. 3974. [Cost thereof, how paid.] The amount to be paid for such supply shall be raised by such municipality in the manner provided for the payment of the expense of con- ducting and managing water works constructed wholly by a municipality. The amount so received by the municipality furnishing such supply shall be applied to the payment of the interest on the sum borrowed for the construction of such water works, or to defray the expense of their management, as the director of public service or trustees shall direct. [R. S. Sec. 2426; 66 v. 208.] 497 WATER WORKS. § 83975 Sec. 3975. [Ownership of works when municipalities are annexed.] Upon the annexation of one municipal corpora- tion to another, the water works theretofore constructed by either shall thereby become the property of the united cor- poration, and shall thereafter be managed by the director of public service or the board of trustees of public affairs of the corporation to which such annexation is made. [R. 8S. See. 2427; 66 v. 208.] Sec. 3976. [Termination of contract upon atnexation.] A contract entered into by one municipal corporation for the supply of water to the other, as hereinbefore provided, shall be terminated by such annexation, and so much of the debt incurred by either, in the construction of water works, as re- mains unpaid, shall thereafter be a charge upon the united corporation, to the same extent that the separate debt of either, incurred as aforesaid, was, before the union, a charge upon the corporation which constructed it. [R. S. Sec. 2428; 66 v. 209. ] Sec. 3977. [Tax for payment of certain interest.] For the purpose of paying the interest on the money borrowed for the erection and completion of water works, during the erection and completion thereof, and before they are put in operation, a tax of sufficient amount shall be assessed and collected each year in the usual manner of levying and col- lecting taxes in the corporations upon all the taxable prop- erty thereof. [R. 8S. Sec. 2429; 66 v. 209.] Sec. 3978. [Tax for the payment of interest on loans.] For the purpose of paying the interest on any loan which a municipality has made for the erection or extension of water works, and after they have been put in operation, and for the building of machinery, a tax of sufficient amount may be assessed and collected, in addition to the amount authorized by law, by the council each year upon all the taxable prop- erty, both real and personal, in such municipality. [R. S. Sec. 2430; 90 v. 326; 88 v. 153; 66 v. 209.] Sec. 3979. [Tax a lien upon property.]! The tax, when THE OHIO MUNICIPAL CODE. § 3980 498 levied and assessed, shall be a hen upon the property upon which it is levied, and a charge against the owners thereof, and shall be certified to the auditor of the county, placed upon the tax list in a separate column thereof, collected as other taxes and paid into and be under the same control as the water works funds. [R. S. Sec. 2431; 66 v. 209.] (1) Assessment for water pipes. See Op. Atty. Gen. (1922) p. 1116. Sec. 3980. [Laying pipes in highway.] The council may preseribe by ordinance for the laying down of water pipes in all highways about to be paved, macadamized or otherwise permanently improved, and for the assessment of the cost and expense thereof upon the lots or parcels of land adjoin- ing or abutting upon the highways in which they are laid. In no case, except as a sanitary measure, shall the council require any house connections to be built further from the main pipe than the outer line of the curbstone. [R. S. See. 2432; 90 v. 198; 66 v. 209.] Sec. 3981. [Municipalities may contract for a water sup- ply; contract to be submitted to a vote.] A municipal cor- poration may contract with any individual or individuals or an incorporated company for supplying water for fire pur- poses, or for cisterns, reservoirs, streets, squares and other public places within the corporate limits, or for the purpose of supplying the citizens of such municipal corporation with water for such time, and upon such terms as may be agreed upon. But such contract shall not be executed or binding upon the municipal corporation until it has been ratified by a vote of the electors thereof, at a special or general election, and the municipal corporation shall have the same power to protect such water supply and prevent the pollution thereof as though the water works were owned by such municipal corporation... [R. 8. Sec. 2484; 82 v. 11; 80 v. 71; 78 v. 42; 71 v. 93.) (1) Certificate of money in treasury, not necessary under for- mer statutes, see Defiance v. Private water plant.—When con- tract with does not require a vote of people; subject to ten-year Council, 23 C. C. 96 (reversed on other grounds, 68 O. S. 520). limitation of Section 3809 G. C. Op. Atty. Gen. (1915), p. 987. GAS, WATER AND ELECTRICITY. 499 § 3982 CHAPTER 2. GAS, WATER AND ELECTRICITY. Sec. 3982. [Council may regulate price of electric light, gas and water.] The council of a municipality in which elec- tric lighting companies, natural or artificial gas companies, gas light or coke companies, or companies for supplying water for public or private consumption, are established, or into which their wires, mains or pipes are conducted, may regu- late’ from time to time the price which such companies may charge for electric light, or for gas for lighting or fuel pur- poses, or for water for public or private consumption, fur- nished by such companies to the citizens, public grounds, and buildings, streets, lanes, alleys, avenues, wharves, and landing places, or for fire protection. Such companies shall in no event charge more for electric light, natural or artificial gas, or water, furnished to such corporation or individuals, than the price specified by ordinance of council.? The council may regulate and fix the price which such companies shall charge for the rent of their meters, and such ordinance may provide that such price shall include the use of meters to be furnished by such companies, and in such case meters shall be furnished and kept in repair by such companies and no separate charge shall be made, either directly or indirectly, for the use or repair of them. [R. 8. Sec. 2478; 98 v. 170; 97 v. 114; 86 v. 62; 84 v. 39; 66 v. 218.] (1) Power of municipality to establish and maintain lighting, power and heating plants, see § 3618. Power of municipality to contract for lighting the streets, ete., see § 3809. Power of municipality to appro- priate property for such purpose, see § 3677. Powers of private companies, see further §§ 9320, et seq., under title “Gas, Water and Electricity,” in Part II. (2) Conditions in grant.—The express power to regulate does not limit the power of the municipality to impose terms and conditions in granting a franchise to a natural gas company to lay pipes in the streets, ete., Columbus y. Federal § 3982 Gas & Fuel Co., 10 N. P. (N, S.) 305; 21 Dec. 179; aff’d Gas Co. v. Columbus, 96 O. S. 530. Requirement of franchise, that natural gas company pay to munici- pality 10 per cent. of its receipts from gas sold above a certain figure is valid. Ib. Provision in an ordinance em- bodying a grant to a natural gas company, to the effect that the gas furnished shall not be used for il- luminating purposes, but only for heat and power, is void. Spring- field v. Gas Co., 31 C. C. 446, 12 Cc. Cc. (N. 8.) 392, (aff'd, 81 O. S. 537). Provision requiring notice to gas company before consumer may turn natural gas into artificial gas pipes is reasonable, but consumer is enti- tled to immediate service. Ib. Artificial gas company acquiring by purchase the rights and fran- chises of a natural gas company, and continuing to use the streets, its obligation to city and inhabitants are same as that of company whose property is acquired. Ib. Character of contract.—Where a municipality by ordinance gives its consent that a natural gas com- pany may enter the municipality, lay down its pipes therein and fur- nish gas to consumers upon terms imposed by the ordinance and ac- cepted by the company, such action constitutes a contract. When the contract is silent as to the dura- tion of the franchise, such franchise is not perpetual but the duration is simply indeterminate, existing only so long as the parties mutually agree thereto; the company may voluntarily forfeit its right to ex- ercise its privileges within the mu- nicipality and wholly withdraw THE OHIO MUNICIPAL CODE. 500 therefrom, and the municipality may not prevent the removal of the company’s property; but so long as the company continues to exercise any of its franchises within the mu- nicipality it may be compelled to exercise them fairly and without dis- crimination. East Ohio Gas Co. v. Akron, 81 O. 8. 33. The right to use the streets for gas purposes is a franchise and must emanate directly or indirectly from the legislature. State v. Cin., G. L. & C. Co., 18 O. S. 262. Power to regulate.—Where the right has been reserved to alter or amend charter, a general law may be passed authorizing cities to reg- ulate the price of gas. State ew rel. v. Cincinnati, G. L. & C, Co., 18 O. S. 262. A company chartered under the old constitution, unless empowered by charter to fix prices, comes within the provisions of this sec- tion. Zanesville v. Gas Light Co., 47 O. 8. 1. A company whose pipes extend into another city or village, is sub- ject to the regulations of such city or village under the authority of this section. Cincinnati, G. L. & C. Co. v. Avondale, 43 O. S. 257. Municipality is not deprived of its power to regulate, because it had passed an ordinance allowing a gas company to lay pipes in the street, the company agreeing not to charge more than a certain price for gas. State ew rel. v. Cleveland, BtCs pCOrsno wore Comal. Where council has fixed a rate pursuant to this section, and the company has failed either to ac- cept the rate or to appeal to the Publie Utilities Commission, un- der Sections 614-44, the rates fixed 501 in such ordinance will be effec- tive. Washington v. Publie Util. Comm., 99 O. S. 70. Where an ordinance is passed by a municipal corporation grant- ing to a gas company the right for the term of twenty-five years to furnish natural gas for heat- ing, lighting and power purposes through its mains and appliances in the streets and public places, on terms and conditions contained in the ordinance, which include a provision that the grant is sub- ject to the right of the city to regulate the price of natural gas from time to time as provided by law, the fixing of a rate for the first ten years of such franchise does not change the franchise contract nor exhaust the power of the city thereunder to subse- quently fix the rate, and the as- sent of the company to the rate so fixed is not necessary. Cin- cinnati v. Public Utilities Com- mission, 98 O. S. 320. As to the power of the municipality to fix rates, see also Gas. Co. v. Pub. Util. Com., 103 O. S. 168. The provisions of See. 614-44, G. C. relative to the powers of the public utilities commission do not apply to a contract made prior to the passage of that sec- tion. Ib. The ordinance allowing pipes to be laid is not a contract. Jb. Where no contract has been made with a company, fixing the price of gas, the municipality may regulate the prices of gas and make changes at any time. State ew rel. v. Gas Co., 37 0. S., 45. But if a contract has already been made and the company has accepted the terms of an ordinance GAS, WATER AND ELECTRICITY. § 3982 fixing the price of gas, the contract cannot be changed. ‘Toledo v. N. Wo Olio Nat.” Gus? Og, 5. ©. .C. 557; but see Phelps v. Gas and Fuel Co., 101 O. S. 144; Briggs v. Dayton, 104 O. S, 616. Where municipality has fixed the price for lighting for ten years, un- der § 3983, its power to regulate after such period is not affected. State ex rel. v. Gas Co., 37 O. S. 45. See further, note (1) under § 3983, post. The franchise under which a gas company furnished gas to a village and its inhabitants for a specified number of years, be- comes, at the expiration of the term named, an indeterminate franchise under which the com- pany is not bound to continue to supply gas, but if it elects to supply gas, the rate charged must be the same as during the period in which the franchise was in force. Newcomerstown v. Gas Co., 30 O. C. A. 283; affd. 100_0. S. 494. Pending the term of a gas-rate ordinance passed by the council of a municipality and accepted by the gas company, it is compe- tent for the parties to modify or abrogate- by mutual agreement the coutract thus entered into. Phelps v. Gas & Fuel Co., 101 O. S. 144; Briggs v. Dayton, 104 O. S. 616. An ordinance regulating gas com- panies, and referring to “any gas companies” is broad enough to cover companies organized for fur- nishing natural gas. Cline v. Springfield, 7 N. P. 626. -As to effect of company chartered to furnish artificial gas, substitu- ting natural gas therefor, see Find- § 3982 lay Gas Light Co. v. Findlay, 2 C. C. 237. As to right of company substi- tuting natural gas for artificial gas in certain parts of municipality to charge higher rate for artificial gas, under authority of council, see Feckter v. Union Gas & E. Co., 19 Dec. 658; 6 O. L. R. 658. Mandatory injunction will lie to compel a gas company to furnish gas to a municipality with which it has contracted for such service. Akron v. East Ohio Gas Co., 19 Dee, 218; 7 N. P. (N. 8S.) 553. Any additional charge, such as a certain amount per month for “readiness to serve,” or any other device for increasing the total sum collected from the consumer above that fixed by council, cannot be maintained. Van Wert v. Van Wert Public Service Co. 11 N. P. (N. S.) 91. Public utilities commission «is without power to authorize such ‘readiness to serve’? charge in ad dition to agreed rate. Lima v. Commission, 100 O. 8. 416. Scope of regulation.—Council has no power to compel a gas com- pany, without its assent to the or- dinance, to furnish gas in a manner and at a rate at the option of the consumer. Gas & Fuel Co. v. Chil- licothe, 65 O. S, 186; Newark v. Gas & Fuel Co. 65 O. 8. 210; Granville v. The Crawford Co., 14 C. C. (N. S.) 421. Having fixed one standard for prices for ten years, which has been duly accepted by the company, council cannot within that period, fix another standard. Newark v. Gas & Fuel Co., 65 O. S. 210. The power to regulate includes the power to demand reports, data, THE OHIO MUNICIPAL CODE. 502 ete. Cline v. Springfield, 7 N. P. 626. The fact that price fixed has af- terwards become inadequate is not ground for relief. Manhattan Trust Co. v. Gas Co., 7 O. F. D. 578. The power of a municipality to fix a maximum rate for electricity includes the power to fix a maxi- mum rate for varying quantities used. Van Wert v. Van Wert Public Service Co., 11 N. P. (N. S.) 91. Reasonableness of regulation. —A regulation without taking into consideration the amount of gas consumed is void. Toledo v. N. W. Ohio Nat, Gas Co., 5 C. C. 557. The power to fix a maximum rate is not improperly exercised when it is so exercised as to permit of a reasonable profit to the lighting company. Van Wert v. Van Wert Public Service Co., 11 N. P. (N. 8.) 91. The power given to municipali- ties by the Ohio statute to regu- late the price of natural gas, con- templates an impartial and thor- ough investigation into all the facts for the purpose of doing justice to both the corporation and the public by establishing reasonable rates on the one hand and on the other compensation which will be just to the com- pany. The elements to be con- sidered in fixing the rate for natural gas are the amount of net profit which may be earned under a fixed rate, and whether the rate as so fixed will yield a fair return on the investment, de- preciation in the value of the plant and the risk attendant on the enterprise considered. New- ark v. Gas Co., 20 C, GC (Nu De C. 418. 503 254; 3 Oh. App. 383; aff’d 92 O. 8. 393. Reasonableness presumed.— Price fixed is presumed reasonable until the contrary is proved. Gas Co. v. Newark, 92 O. S. 393; Bel- laire Goblet Co. v. Findlay. 5 C. See also State ew rel. v. Gas Co., 37 O. S. 45; Central O. Gas & Fuel Co. v. Columbus, 16 Dec. 359. But no presumption arises when answer denies reasonableness of price fixed by ordinance and when a contract exists in which a rea- sonable price is to be fixed by agreement. Toledo v. N. W. Ohio Nat. Gas Co., 5 C. C. 557. Presumption of validity of ordinance.— Ordinance regulating price is presumed valid until con- trary is proved. State ew rel. v. Ironton Gas Co., 87 O. S. 45, 49. And inadequacy of price in ab- sence of fraud or bad faith will not be inquired into. Jb. When council does not regu- late.—Electric light company must furnish light to all inhabitants alike at reasonable price when council has not regulated the price. Railway v. Bowling Green, 57 O. S. 336. Mere discrimination in charges for electric current, without proof of substantial injury to consumers, is not sufficient to show unlawful or unreasonable charges. State ew rel. v. Union Gas & Electric Co., 13 C. C. (EGE 12. How regulation may be en- forced.—Gas company must furnish gas at the rates fixed; failing to do so, mandatory injunction will lie. Gas Light Co. v. Zanesville, 47 0. S, 85. See also Toledo v. N. W. Ohio Nat. Gas Co., 5 OC. C. GAS, WATER AND ELECTRICITY. § 3982 557; New Lexington v. Fuel Sup- ply Co., 24 ©.’ C. "CN. 8.) 587. A citizen and resident of a city may have a writ of manda- mus issued, upon his own rela- tion, to a public service corpora- tion, commanding it to furnish him with gas in accordance with the terms of a city ordinance when such corporation has ac- cepted the benefits of such ordi- nance and is bound by its pro- visions. State, ex rel., v. Gas Coo34 Na Py GN.”8:): 87, But where the franchise of a gas company is indefinite as to the time and the period during which the price has been fixed has expired coun- cil cannot prevent the gas company from discontinuing the furnishing of gas to the municipality and its inhabitants and taking away from the streets its mains, pipes, etc. See East Ohio Gas Co. v. Akron, 81 O. 8. 33. Approved and followed, Gas Co. v. Cleveland, 106 O. S. 489. Where a municipality seeks to enforce an unaccepted ordinance rate against a gas company occupying its streets, and such gas company by way of defense alleges facts as to valuation, operating expense and source of supply, which, if true, amount at the ordinance rate to a confiscation of the property of the utility, a case is stated of which a court of equity will have jurisdiction. State ex rel. v. Court of Appeals, 104 0. S. 96. Rate fixing not a judicial function. —Courts are without power to fix rates as such between municipalities and public utilities commission. Case Co. v. Cleveland, 106 O. S. 489. Lima v. Pub. Util.Com. 106 O.8. 381. Power of court pending injunction § 3982 proceedings as to rate.—A court of equity has jurisdiction pending the final determination of a case to make such interlocutory orders as may be necessary to preserve the rights of the parties in the subject- matter of the controversy, and to attach to its orders, as a condition precedent to their taking effect, terms and limitations designed to serve the ends of justice. State ex rel. v. Court of Appeals, 104 O. 8. 96. And court may fix a rate pending final judgment, Lima v. Pub. Util. Com. 106 O. S. 379. THE OHIO MUNICIPAL CODE. 504 For further provisions as to reg- ulation of rates and powers of the public utilities commission, see §§ 614-44 et seg., under ‘‘Gas, Water and Electricity’’, in Part II. (3) Referendum vote not neces- sary.—An ordinance passed under this statute may be referred to a referendum vote under the pro- visions of §4227-2 but where no such referendum is invoked and the contract is performed by the utility, the ordinance is bind- ing. State, ex rel., v. Burris, 91 0,>8.-70. FORM OF ORDINANCE REGULATING PRICE OF GAS. Ordinance No. To regulate the price which the for gas for and during the ensuing Bie jee, Oe (ene 0 wie » Shale oe re Company may charge years. Be it ordained by the council of the city [or village] of ...........--- ’ State of Ohio: See. 1. That during the period of the passage of this ordinance and its acceptance by the yen tre, 9 Cid ee sre years from and after © © 6) ee 6 é-a-elle 6 = (eo euste Company, said company may charge for gas of not less than ...........-- candle power furnished to the citizens or private consumers and to the public buildings, grounds, streets, lanes, alleys, avenues, market places Lete.] of. the. cthy ,Lorevillagel Obs, ime ee a eee oe , for illuminating Purposes, 5.2.0. ~ vale per thousand cubic feet. If paid within .......... days after the dates of monthly settlements, then a discount of ..........- per thousand cubic feet shall be allowed. For all gas supplied and used exclusively for heating and fuel purposes, through a separate service and Chena: said company may charge during said period ........ per thousand eubie feet. If paid within ........... days after the dates of monthly settlements, then a discount of ........... per thousand cubic feet shall be allowed. aha w! 8 le @) 6 6 \q eerie) @ #9) 2 06.6 The said The Company shall in no event, during said term of years, charge for gas furnished as above men- tioned, more than the prices herein specified. Sec. 2. This ordinance shall take effect and be in force from and after 505 GAS, WATER AND ELECTRICITY. § 3982-1 its acceptance by said The ............---. Company, and its publica- tion as required by law. Passe dueetanie te ele cortical. e/edes b's Ae President of Council. PAT HAS Lert aioe keds wcotdihera.d Shs z Clerk WAccepted 2 iyo. Foss) LOR es | Norre.—The charge for lighting streets, etc., and the method of com- puting bills therefor, as per lamp or otherwise, will be governed by any sontract made between company and municipality. Sec. 3982-1. [Council may provide free use.] The council of any municipality owning and operating municipal water, gas, or electric light plants, may provide by ordinance to furnish free of charge the products of such plants when used for municipal or public purposes. [110 v. 126.] Sec. 3983. [Minimum price not to be reduced during term agreed upon.] If council fixes the price at which it shall require a company to furnish electricity or either natural or artificial gas to the citizens, or public buildings or for the purpose of lighting the streets, alleys, avenues, wharves, land- ing places, public grounds or other places or for other pur- poses, for a period not exceeding ten years,’ and the company or person so to furnish such electricity or gas assents thereto, by written acceptance, filed in the office of the auditor or clerk of the corporation, the council shall not require such company to furnish electricity or either natural or artificial gas, as the case may be, at a less price during the period of time agreed on, not exceeding such ten years.” [R. S. See. 2479; 97 v. 263; 66 v. 218.] (1) Contract beyond legal contractual stipulations contained period.—Where the power is given to the municipality to contract for a period “not exceeding ten years,” the conclusive implication is that the municipality is forbidden to contract for a longer period, and contract exceeding such legal period is ultra vires and void, and the therein are equally void and neither party can enforce them. Wellston v. Morgan, 59 O. S. 147. See also Gas & Fuel Co. v. Chillicothe, 65 O. 8. 186, 207; Davy v. Hyde Park, 16 C. C. 507 (aff’d, 61 O. S. 638) ; Cincinnati Gas Light & Coke Co., v. Avondale, 438 O. S. 257, 267; § 3983 Lima Gas Co. v. Lima, 4 C. C. 22. But see contra, Toledo v. N. W. Ohio Natural Gas Co., 5 C. CO. 557. Such a contract beyond the legal period will in no way affect the authority of the municipality to regulate the price of gas, even though the contract has been per- formed by both parties for the legal period. State ew rel, v. Ironton Gas Co., 37 0. S. 465. But an ordinance fixing the price of gas to be charged for a period of ten years, the price fixed not to go into effect until six months after the passage and taking effect of the ordinance and continue ten years from and after such six months, is not a contract exceeding the legal period, but is valid and binding for ten years from the date when the price fixed goes into effect. Logan Natural Gas Co. v, Chillicothe, 65 0. S. 186. An ordinance regulating the price of gas, would not be within the restrictions of § 4241 G. C., providing that council shall not enter into any contract which is not to go into full operation during the term for which all the members of such council are elected. Jb. (2) Change in price.—When the council has fixed the price of gas according to one standard and the price has been duly accepted by the company, it cannot be altered without the consent of the com- pany, by fixing another standard, which may affect the price pre- viously fixed. Logan Natural Gas Co. v. Chillicothe, 65 O. 8S. 186; State ew rel. v. Gas Co., 37 O. S. 45. Where the council of a muni- cipality has determined by ordi- nance the rates to be charged consumers of gas for an ensuing THE OHIO MUNICIPAL CODE. 506 period of ten years, and the gas company has accepted the provi- sions of such ordinance, an ordi- nance passed four years later and also accepted by said company, providing for an immediate in- crease in the rates to be charged, is a.valid exercise of municipal power, and constitutes a binding contract between the municipality and the gas company, abrogating and superseding the prior gas- rate ordinance. Phelps v. Gas & Fuel Co., 101 0. S. 144. But if no contract has been made with a company, council has power to regulate the price from time to time. State ew rel, v. Gas Co., 37 0. S. 45. The fact that council has fixed the maximum price for one company, does not prevent council, within the ten years, from fixing a lower maxi- mum price for another company. Central Ohio Gas & Fuel Co. v. Co- lumbus, 16 Dec. 359. Such an ordinance, fixing a lower price for another company, does not affect the price fixed for the first company. Ib. When period expires.—Council having fixed price of the gas for ten years and this period having ex- pired, council may again fix the price for a period not exceeding ten years and so on as long as the gas company continues to exercise its franchise within the city; the mu- nicipality cannot prevent the gas company from voluntarily forfeit- ing its right at the expiration of the’* ten years and removing its property. See Ohio Gas Co. v. Akron, 81 0. S. 33. See also Akron v. East Ohio Gas Co., 9 N. P. (N. S.) 526. Acceptance by the gas company of the terms of an _ ordinance 507 granting the right to furnish natural gas through mains and _appliances in streets and public places, which ordinance includes a provision that the grant is sub- ject to the right of the city to regulate the price of natural gas from time to time as provided by law, constitutes a valid contract, and the rights of the parties are to be determined by the contract itself. Cincinnati v. Public Utili- ties Commission, 98 O. S. 320. Council of a municipality has GAS, WATER AND ELECTRICITY. § 3984 authority to fix the price that may be charged by utility for its product, and when accepted, such action constitutes a contract as to which the Public Utilities Commission is without power. Power Co. v. Steubenville, 99 O. S. 421. Lima v. Pub. Util. Com., 100 O. 8, 416. Natural gas companies.—This section was held to apply to natural gas companies. even before the amendment of 1904. Toledo v. N. W. Ohio Nat. Gas Co., 5 C. C. 557. Sec. 3984. [When council may occupy streets for gas pur- poses.] If at any time any such company required by the council to lay pipes and light a street, alley, avenue, wharf, landing place, public ground or building, refuses or neglects for six months after being notified by authority of the council to comply with such requirement, the council may lay pipes and erect gas works for lighting such streets, alleys, or public grounds, and all other streets, alleys, and public grounds not already lighted, and such company shall thereafter be pre- cluded from using or occuping any of the streets, alleys, pub- lic grounds or buildings not already furnished with gas pipes of such company, and council may open any street for the purpose of so conveying gas.t [R. 8S. Sec. 2480; 66 v. 218.] (1) Erection of plant by mu- in §3984 arise. State ew rel. nicipality, when.—It is not nec- essary in order that municipalities may erect and operate gas: works that the contingency provided for Sec. 3985. [Gas companies v. Hamilton, 47 O. 8S. 52. Vested rights.—No vested rights of a gas company are taken away by a municipality erecting its own plant. Jb. may be permitted to occupy streets.] At any time after the default mentioned in the preceding section, the council may permit such companies to use and occupy the streets, alleys, and publie grounds of such corporation for the purpose of lighting them and fur- nishing gas to the citizens and public buildings. [R. S. See. 2481; 66 v. 218.] THE OHIO MUNICIPAL CODE. § 3986 508 Sec. 3986. [Forfeiture of charter for neglect to furnish gas.] A neglect to furnish gas to the citizens and other con- sumers of gas' or to the corporation by any company in ae: cordance with the prices fixed and established by the council from time to time shall forfeit all rights of such company under the charter by which it has been established, and the council may proceed to erect, or, by ordinance, empower any person to erect gas works, for the supply of gas to such cor- poration and its citizens.2 [R. S. Sec. 2482; 66 v. 219.] (1) Consumer, who is.—As to tute natural for artificial gas, and person using gas only occasionally, see Adams Exp. Co. v. Gas Co., 21 Baas. ; (2) Power of municipality on default of company.—Gas com- panies organized and operating un- der laws of 1874 could not substi- under this section the municipality could, after abandonment by com-* pany of its artificial plant, provide for light and heat for its inhabi- tants by supplying natural gas. Findlay Gas Light Co. v. Findlay, 2 C. C. 237. Sec. 3987. [A temporary failure shall work no forfeiture. ] A temporary failure to furnish gas shall not operate as a forfeiture, unless such failure is through the neglect or mis- conduct of such gas-light or gas-light and coke company. [R. S. Sec. 2483; 66 v. 219.] Sec. 3988. [Council may provide for electric current and gas inspection.] In a municipality in which gas works are constructed, council may provide, by ordinance, for the ap- pointment of an officer, to be known as inspector of gas, whose duty it shall be to inspect all gas and gas meters, and certify the correctness of all bills against consumers of gas, make photometric tests, and perform such other duties as may be prescribed by ordinance, and the council shall fix his com- pensation. Council may also provide for the inspection and testing of meters used for measuring electric current for elec- tric light, power or other purposes, furnished by any indi- vidual or company within the corporation, and may prescribe a suitable charge for such inspection and testing, and the manner of collecting it! [R. S. Sec. 2484; 91 v. 299; 66 v. 219.] (1) Validity.—Legislature may provide for inspection of meters and assess the cost of inspection upon the companies in proportion to their valuation. Cin. Gas L. and C. Co., v. State, 18 O. S. 237. 509 GAS, WATER AND ELECTRICITY. § 3989 Sec. 3989. [Exclusive monopoly shall not be allowed io gas companies.] Council shall not agree by ordinance, contract, or otherwise, with any person or persons! for the construction or extension of gas works for manufacturing or supplying the corporation or its inhabitants with gas, which gives or con- tinues to such person or persons the exclusive privilege? of using the streets, lanes, commons, or alleys, for the purpose of conveying gas to the corporation, or the citizens thereof, or which deprives council of the right to designate, inspect or regulate the kind of meter to be used for the correct measure- ment of the gas furnished under such agreement, or which does not specify the exact quality of the gas to be furnished, and reserve to the council the right to enforce an exact com- pliance with such specification, under such rules as the council may prescribe, nor shall the council make any such agreement which does not secure to the council the right to purchase such works, and all the appurtenances belonging there- to, at any time within the existence of such contract or agree- ment.* [R.S. Sec. 2485; 66 v. (1) Meaning of “person or persons.”—The words “person or persons,” include a gas company or other private corporation. Cin. Gas L. and C. Co. v. Avondale, 43 O. S. 257. The former § 2485 R. S. was held not to apply to natural gas compa- nies. Gas and Fuel Co. v. Chillico- the, 65 O. S. 186; Newark v. Gas and Fuel Co., 65 O. S. 210. (2) Certain contracts prohib- ited.—Council could not, without clear legislative authority, grant to any person or corporation the ex- clusive use of the streets for cer- tain purposes. State ew rel. v. Cin. Gas L. and C. Co., 18 0. S. 262; see also Cin. Gas L. and C. Co. v. Avondale, 43 O. S. 257, 267. An ordinance granting to a gas company the exclusive right to lay pipes in the street for furnishing gas, is void. Hamilton v. Gas Co., 219. ] 8 N. P. 319; Morrow, ete., Co. v. Mt. Gilead, 8 N. P. 669. Council cannot agree to put be- yond the control of a village the price and quality of gas, as well as the quantity the village would require in the future. Cin. Gas L. and C. Co. v. Avondale, 43 O. S. 257, 269. Quality of gas.—A franchise ordi- nance granting to a gas company the right to furnish gas to the inhabitants of a municipality at a certain stipu- lated price, but which fails to specify or make any reference to the quality of gas to be furnished, is in contra- * vention of this section, and invalid and its performance may be en- joined. Stuver v. Gas Co., 31 O. C. As 5645’ 10°OR “App 276: This section is not affected or ren- dered invalid by the statutes relating to the public utilities commission. Ib. THE OHIO MUNICIPAL CODE. § 3990 510 power to contract for the purchase of gas works. Ib. Pipes laid by a company in a street must be changed to conform to a new grade. Gas L. & C. Co. v. Columbus, 50 O. S. 665. (3) Scope of franchise.—A contract with a city is not void for the reason it does not reserve the right to purchase the works. Lima Gas Co. v. Lima, 4 C. C. 22. The city cannot barter away its Sec. 3990. [Council may erect or purchase gas or electric works.]! The council of a municipality may, when it is deemed expedient and for the public good, erect gas works or electric works at the expense of the corporation, or pur- chase any gas? or electric works already erected therein,® but in villages where gas works or electrical works have al- ready been erected by any person, company or persons, or corporation, to whom a franchise* to erect and operate gas works or electric works has been granted, and such franchise has not yet expired, the council shall, with the consent of the owner or owners, purchase such gas works or electric works already erected therein.® If the council and owner or owners of such gas or electric works are unable to agree upon the compensation to be paid therefor, the council may file in the probate court of the county where such gas works or electric works are located, a petition to appropriate such gas works or electric works, and thereupon the same proceedings of ap- | propriation shall be had as is provided for the appropriation of private property by a municipal corporation.* A munici- pal contract existing between any village and such person, company of persons or corporation for the public or street lighting shall be considered as an element of value in fixing the compensation to be paid for such gas works or electric works. [R. 8S. See. 2486; 95 v. 599; 93 v. 59; 66 v. 219.] (1) Power to erect and main- tain lighting plants is also given ‘to municipalities in § 3618. (2) Natural gas included.— This section includes natural as well as artificial gas works. Bellaire Gob- let Co. v. Findlay et al, 5 ©. C. 418, 425. nicipality may purchase or erect its own plant. State ew rel. v. Ham- ilton, 47 O. S. 52. And company is not deprived of vested rights. Jb. See also Ham- ilton Gas L. and C. Co. v. Hamilton, 7 0. F. D. 358; 146 U. S. 258. Having the power to erect gas (3) Scope of power.—Although company was organized and in op- eration at passage of this act, mu- works, municipality has the right to levy taxes to meet the cost of such works, and the property of a 511 gas company within its limits will be subject to such taxation. Ham- ilton Gas L. & C. Co. v. Hamilton, 6 O. F. D. 256; 37 Fed. 832. The provisions of former § 2486 et seq. R. S., relating to the erection or purchase of gas works by municipalities and management by trustees, were held not to vest in such trustees authority to charge the municipality with general lia- bility on account of machinery or appliances purchased by them for such works, but the trustees were limited to contracts with reference to the particular fund which they had authority to control independ- ently of council. Kerr v. Bellefon- taine, 59 O. S, 446. See further as to construction of former sections, Dalzell v. Findlay, 5 C. C. 435, 440. GAS, WATER AND ELECTRICITY. § 3991 In cities, see § 4326. In villages, see § 4357. See Kerr y. Bellefontaine, 59 O. S. 446. ’ (4) Who can grant franchise. —tThe rights to use streets for gas purposes is a franchise and must emanate, directly or indirectly, from the legislature. State v. Cin. Gas L. and C. Co., 18 O. S. 262. (5) The proviso that plants, al- ready erected and in operation under franchises shall be _ pur- chased with the consent of the owners is unconstitutional and void as being a limitation on See. 4, Art. XVIII of the consti- tution. Dravo-Doyle Co. v. Orr- ville, 93 O. S. 236, and see contra, El, and Gas Co. v. Orville, 26 O. C. D. 43. (6) See §§3677 to 3697, ante. Management of gas works.— ‘Sec, 3991. [Municipality may sell to village.] When a mu- nicipal corporation is the owner of a natural gas plant by which the citizens thereof are supplied with natural gas, and such natural gas is so supplied through pipes from a point beyond the limits of such corporation which pipes pass through the limits of an incorporated village, the municipal- ity may sell natural gas to such village, or to a company, for the use of such village and the citizens thereof, such gas to be delivered at a reducing station to be located within one hun- dred feet of the main pipe line. [87 v. 249, §1.] Sec. 3992. [Delivery of gas outside of municipality, how allowed.] When a municipal corporation is the owner of a natural gas plant to supply the citizens thereof with natural gas for fuel, the council of such municipal corporation may provide for supplying natural gas at rates to be determined by it, to persons living outside of and in the vicinity of such municipal corporation, and to county infirmaries, children’s homes and other public institutions within or without such municipal corporation. To encourage the location or estab- THE OHIO MUNICIPAL CODE. 512 § 3993 “lishment of manufacturing industries within such mu- nicipal corporation, council may reduce the price of gas to be used to operate such manufacturing, or donate it for a term of years for such purpose,’ but this section shall be in- operative if the municipal corporation or the citizens thereof are thereby deprived of a full supply of such gas. [87 v. 249, vesilp rg (1) Electricity—A municipality may not furnish electricity to a corporation free of charge. Op. Atty. Gen. (1913), p. 1484. Sec. 3993. [Laying of gas pipes, and expense thereof. ] Council may prescribe, by ordinance, for the laying down of gas pipes in highways about to be paved, macadamized, or otherwise permanently improved, and for the assessment of the cost and expense thereof upon the lots or parcels of land adjoining or abutting upon the highways in which they are laid. In no ease, excepting as a sanitary measure, shall the council require house connections to be built further from the main pipe than the outer line of the curb-stone. [R. S. Sec. 2490; 66 v. 220.] Sec. 3994. [Contracts to supply municipality with electric light or gas.] A municipal corporation may contract with any company for supplying, with electric light, natural or ar- tificial gas, for the purpose of lighting or heating the streets, squares and other public places and buildings in the cor- poration limits: [R. S. See. 2491; 98 v. 150; 86 v. 62; 84 v. 39. | (1) Company organized for the manufacture of electrical supplies is not a company contemplated by this section. Brush Electrie Light Co. v. Jones Bros. Elec. Co., 23 B. 329. Power of municipality to make contract for lighting streets, ete., is also conferred in § 3809 and certificate of auditor of money in the treasury is not required. As to requirement under former law, see Ampt v. Cincinnati, 2 N. P. 332. Time of contract limited.— Municipality cannot contract with a company for lighting or heating for a period exceeding ten years by pro- visions of § 3983. Gas Co. v. Lima, 4. Cy-C),:22, Interest on payments overdue on a contract to supply public lights may be collected against municipal- ity. Electric Co. v. Toledo, 13 Dee. 137. Contract to “furnish light” construed to include agreement to furnish lamps. Newark v, Light & Power Co., 16 Dec. 669. Restrictions in former law.— 513 § 2491 R. S. was formerly made sub- ject to the provisions of § 3551 R. S., which required that before any company with which such contract was made should go into operation where a company had already been formed, there should be a vote of the electors. This restriction was omitted from the amendment of GAS, WATER AND ELECTRICITY. § 3995 1906, and § 3551 was also amended omitting the restriction. Section cited.—Section 2491 R. S. is cited in the following cases; Findlay Gaslight Co. v. Findlay, 2 C. C. 237; Toledo v. N. W. Ohio Nat. Gas. Co., 5 C. C. 557, 571; Bellaire Goblet Co. v. Findlay, 5 C. C. 418, 424; Circleville L. & P. Co. v. Buck- eye Gas Co., 69 O. S. 259, 269. Sec. 3995. [Right of eminent domain in municipalities for public service enterprises.] For the purpose of erecting or building dams across rivers or streams to raise and maintain a head of water, for constructing and maintaining canals, locks, and race ways to regulate and carry such head of water to a plant or power house where electricity is to be generated, or for erecting and maintaining poles whereon to attach or sink wires or cables to carry and transmit electricity, or for transporting natural gas, petroleum, water or electricity through tubing, pipes or conduits, or by means of wires, cables or conduits, or for storing, transporting or transmitting water, natural gas or petroleum or for generating and trans- mitting electricity, a municipal corporation may enter upon any private land to examine or survey a line or lines for such tubing, pipes, conduits, poles and wires, reservoirs, dams, canals, race ways, plant or power house and to ascertain the number of acres overflowed by reason of the construction of such dam or dams and may appropriate so much thereof as is deemed necessary for the laying down or building of such tubing, conduits, pipes, dams, poles, wires, reservoirs, plant and power house, as well as land overflowed and for the erection of tanks and reservoirs for the storage of water for transporting stations, along such line or lines and such buildings as are necessary for such purpose. [R. S. See. 8978; 69 y. 194,°$ 3; 72 v. 151, §$ 1, 2; 85 v. 115; 94 v. 382; 97 v. 300. ] Sec. 3996. [How appropriation shall be made, restrictions | thereon.] Such appropriation shall be made in accordance with the provisions of law for compensation to owners of § 3997 THE OHIO MUNICIPAL CODE. 514 private property appropriated to the use of corporations. As far as the rights of the public therein are concerned, the county commissioners as to county and state roads, township trustees as to township roads, and the council of municipal corporations as to streets and alleys in their respective juris- dictions may grant to such municipal corporation the right to lay such tubing, pipes, conduits, poles and wires therein, subject to such regulations and restrictions as they prescribe. The right to appropriate for any such purpose shall not ex- tend to the erection of any tank, station, reservoir, or build- ing or lands therefor, or to more than one continuous pipe, conduit or tubing or land therefor in or through a municipal corporation unless the council first consents thereto. [R. S. See. 3878; 69 v. 194, § 3; 72 v. 151, §§ 1, 2; 85 v. 115; 94 v. 382; 97 v. 300.] Sec. 3997. [May not appropriate property in a municipality without its consent.] The provisions of the preceding two sections shall not confer power to appropriate any portion of a street, alley, highway or public way, or land, or confer any right therein, situated within a municipality, without its con- sent. [R. 8. Sec. 3878; 69 v. 194, § 3; 72 v. 151, §§ 1, 2; 85 v. 115; 94 v. 382; 97 v. 300.] Sec. 3998. [Certain restrictions in the exercise of such power.] No such reservoir for the storage or transportation of water shall be constructed within the corporate limits of the municipality or any public park. All excavations, except such reservoirs, shall be well filled and so kept by such appropria- ting corporation. [R. S. Sec. 3878; 69 v. 194, §3; 72 v. 151, 8§ 1,2; 85 v.- 115; 94 ¥. 3825/97 v.300)| Sec. 3999. [Further powers to such municipal corporation. ] Such municipal corporation may transport, store, insure and ship natural gas, petroleum or water, and transport and store water for the purpose of furnishing it to engineers employed in developing for, or in the production and transportation of petroleum, and for that purpose lay down, construct and maintain the necessary pipes, tubing, tanks, machinery and 515 PUBLIC UTILITIES. § 4000 arrangements. [R. S. Sec. 3880; 94 v. 382; 85 v. 114, 115; 72 v. 151, §2.] Sec. 4000. [Power of municipalities outside corporate limits to provide natural gas.] A municipality authorized and empowered by law to purchase or lease lands, purchase, lease or sink natural gas wells, procure rights of way, pur- chase and lay down pipes for the purpose of supplying such municipality or the citizens thereof with natural gas may exercise outside of its corporate limits any or all such powers and in addition thereto shall have all the rights and powers conferred upon municipalities by the preceding five sections, subject to all the restrictions therein. [86 v. 208, §1; RB. S. ‘Sec. 2489-3. ] PUBLIC UTILITIES. Sec. 4000-1. [‘‘Public utility’’, ‘‘indeterminate permit’’ defined.] Wherever in this act and for the purpose of this act, the term ‘‘public utility’’ shall be taken to mean and include any street railroad operated in whole or in part under the act passed April 22, 1896, commonly known as “The Rogers Law’’ and entitled ‘‘An act to amend and sup- plement sections 2505a and 2505b of the Revised Statutes of Ohio enacted May 1, 1891, and amended April 18, 1892”’ or any street railroad operated in connection with or upon the tracks of any such street railroad and any corporation which owns, operates or leases any such street railroads. The term ‘‘indeterminate permit’’ as used in this act, shall mean and embrace any grant of a municipality to any person, association of persons, company or corporation, of power, right or privilege to own, operate, manage or control any plant or equipment or any part of a plant or equipment within this state of any public utility created under said acts as herein defined, which by the terms thereof is to con- tinue in force until such time as the municipality shall exer- cise its right to purchase the property of such public utility, in accordance with the terms of this act or until it shall be otherwise terminated according to law. [103 v. 726.] —§ 4000-2 THE OHIO MUNICIPAL CODE. 516 Sec. 4000-2. [Authority to surrender franchise and accept indeterminate permit; purchase by municipality of public utility; how amount of payment determined.] Any such pub- lie utility is hereby authorized to surrender any existing li- cense, permit, grant or franchise, and to accept in lieu thereof any indeterminate permit, and the municipality in which all or the major part of the property of such public utility is situated may accept such surrender and grant an indeter- minate permit, and at the time ‘or times provided in the grant of such permit, or, if no time be provided in such grant, then at any time after such grant, the municipal corporation may purchase all the property of such public utility actually used and useful for the convenience of the public, upon pay- ing therefor just compensation as determined or agreed upon in accordance with the terms of this act. Any such munici- pality is authorized to purchase and operate such property, and every such public utility is hereby required to sell such property for the compensation determined or agreed upon in accordance with the terms of this act. The amount to be paid for the property may be determined, first, by condemna- tion proceedings, or second, by proceedings as hereinafter deseribed before the public utilities commission of Ohio, or third, by agreement between the municipality and the public utility as hereinafter described. In the ascertainment of the compensation to be paid by any municipality for the prop- erty of any public utility, either by condemnation proceedings before the public utilities commission, the compensation shall be made and awarded only for such property of the public utility as is used and useful for the convenience of the pub- he, excluding therefrom the value of any franchise or right to own, operate or enjoy the same, in excess of the amount actually paid to such municipal corporation as the considera- tion for the grant of such indeterminate permit. [103 v. 726.] - — Sec. 4000-3. [Authority to grant indeterminate permit.] Any municipality may grant an indeterminate permit to any such public utility upon such terms and conditions as may be considered conducive to the public interests, and as pro- vided in this act. [103 v. 726.] 517 PUBLIC UTILITIES. § 4000-4 Sec. 4000-4. [How compensation determined.] When the municipality determines to acquire the property by condem- nation, the compensation therefor shall be determined in the manner provided by law for the appropriation of private property by a municipal corporation. [103 v. 726.] Sec. 4000-5. [Procedure when municipality desires to ac- quire public utility.] When the municipality so desires, as expressed in the ordinance determining to acquire the prop- erty of any such public utility, to have the compensation determined by the public utilities commission of Ohio, the municipality shall make a request in writing to such com- mission in accordance with the provisions of section 21 of an act passed April 28th, 1913, entitled ‘‘An act to create the public utilities commission of Ohio, to prescribe its or- ganization, its powers and its duties, and to repeal sections 487 to 499 inclusive, sections 548 to 551 inclusive, sections 614-24, 614-25, 614-26, 614-69, 614-70, 614-80, 614-81, and 614-83 of the General Code.’’ Thereupon the public utili- ties commission shall proceed to make an inventory and val- uation of the property of such public utility in accordance with the provisions of said act. The proceedings for a re- view of such valuation shall be as prescribed in section 29 of said act. Such valuation shall not become binding upon the municipality, however, unless the council thereafter passes an ordinance accepting the same, which ordinance shall be subject to a referendum in accordance with the provisions of law relating to referenda upon municipal ordinances. If not accepted, the municipality shall reimburse the public utility for its expenses reasonably incurred in the valuation proceedings, the amount to be ascertained and fixed by the commission. In the absence of agreement as to compensation as provided in section 6 hereof, the acceptance of an inde- terminate permit shall be construed as a consent on the part of the public utility to the procedure provided for in this section. [103 v. 726.] Sec. 4000-6. [Agreement by municipality with public util- ity as to compensation and time of purchase; proceedings.] Any municipal corporation may contemporaneously with or § 4000-7 THE OHIO MUNICIPAL CODE. 518 at any time after the grant of an indeterminate permit, as provided in sections 2 and 8 of this act, agree with the public utility upon the compensation to be paid for its property, and the time or times for the exercise of the privilege of pur- chase; provided, however, that no period between the times . fixed for such purchase shall exceed five years. Upon the de- termination of the municipality to acquire the property of such public utility, the amount to be paid by the municipality and the terms and conditions of the acquisition shall be as thus agreed upon. The agreement of the municipality shall be by ordinance. In the same or other ordinances, the mu- nicipality and public utility may agree upon the amount of or basis of calculating the amount of annual payment, if any, to be made to the city to be treated as operating expenses of the utility or otherwise; also upon the basis of a division of earnings between the utility and the city; also the purposes for which and the amounts or the basis for calculating the amounts in which new stock, bonds or other securities may be issued; also the minimum net earnings or basis of or de- vice for calculating the minimum net earnings which the util- ity may earn as a condition precedent to a reduction of fares or rates, and as a test of the reasonableness of extensions; also the initial rates, fares and charges, and the dates of revision of rates, fares or charges, but no period between dates fixed for revision shall exceed five years; also the ob- ligations of the utility with reference to minimum mainte- nance, renewal and depreciation reserve funds; also for ar- bitration of differences, also any other terms and conditions relative to the construction, maintenance, financing, operation and control of service of the utility consistent with the terms and conditions of this act and an indeterminate permit. [103 v. 726. } Sec. 4000-7. [Ordinance shall not take effect until submis- sion of question to electors; notice of election.] No ordi- nance passed pursuant to the provisions of section 6 hereof, shall take effect until submitted to the electors of the mu- nicipality, at a special or general election held in the mu- nicipality at such time as council may determine, and ap- proved by a majority of the electors voting thereon. The or- 519 PUBLIC UTILITIES. § 4000-8 dinanece shall be duly passed by an affirmative vote of not less than a majority of the members elected or appointed to the council, and shall be subject to the approval of the mayor as provided by law. The ordinance shall specify the form or phrasing of the question to be placed upon the ballot. Thirty days’ notice of the election shall be given by publication once a week for four consecutive weeks in two daily or weekly newspapers published or circulated in the municipality, which notice shall contain the full form or phrasing of the question to be submitted. The clerk of the council shall certify the passage of such ordinance to the officers having control of elections in such municipality, who shall cause such question to be voted on at the general or special election as specified in the ordinance. [103 v. 726.] Sec. 4000-8. [Time of continuance of indeterminate per- mit; effect of acceptance.] Any indeterminate permit granted under the terms of this act shall continue in force until such time as the municipality shall acquire the property of the public utility as provided in this act, or until otherwise ter- minated according to the terms and conditions of the per- mit. The acceptance of an indeterminate permit shall be deemed to deprive the public utility of all rights under any license, permit, grant or franchise or granted in any munici- pal ordinance or resolution existing at the time of the grant- ing of the permit. From the time of such grant, the rates, fares, charges, service, accounts, equipments, repairs, addi- tions, extensions, improvements, transfers, joint use, depre- ciation, capitalization, bonded or other indebtedness and all other terms and conditions relating to the financing, construec- tion, maintenance, and operation of such utility shall be sub- ject to municipal regulation; provided, however, that such power of municipal rezulation shall not be exercised in a manner inconsistent with the express terms of the ordinance granting the permit. Provided, also, that the capitalization and bonded or other indebtedness for improvement and other purposes beyond the limits of the municipality granting the permit shall remain subject to regulation by the state public utilities commission as provided by law; but no such capitalization or indebted- § 4000-9 THE OHIO MUNICIPAL CODE. 520 ness shall be given effect as a basis for purchase price to or rate regulation by the municipality contrary to the agree- ment of the municipality and public utility as expressed in the ordinance granting the permit. Nothing in this act shall be construed as conferring upon any municipality, officer, department, or commission thereof any power to grant an indeterminate permit to any such public utility in any other manner than by ordinance, or to prescribe that such ordinance shall take effect in any other manner than by acceptance by the public utility to which it is granted by filing a written acceptance thereof with the clerk of the city council or other officers named in such per- mit. [103 v. 726.] Sec. 4000-9. [Rates, tolls or charges.] In the absence of agreement as to rates, fares or charges, as provided in sec- tion 6 hereof, all rates, fares, tolls and charges for services rendered and commodities furnished by any public utility shall be sufficient to yield a reasonable compensation to the publie utility operating under an indeterminate permit, and in the ascertainment of what shall constitute such reasonable rates, fares, tolls, and charges, the municipal corporation shall have due regard, among other things, to the value of all the property of the public utility actually used and useful for the. convenience of the public, excluding therefrom the value of any franchise or right to own, operate or enjoy the same, in excess of the amount actually paid to such municipal . corporation as the consideration for the grant of such inde- terminate permit and exclusive of any value added thereto by reason of a monopoly or merger, and also with due re- gard to the necessity of making reservation out of the income for surplus, depreciation and contingencies. [103 v. 726.] Sec. 4000-10. [Department may be created to exercise the powers conferred; procedure before department.] In the event that any municipality shall establish any department for the purpose of exercising any of the powers herein con- ferred, such department is hereby granted such powers of supervision and regulation of any public utility operating under an indeterminate grant, as are provided by law and in 521 | PUBLIC UTILITIES, § 4000-11 the ordinance granting the permit, and as may be from time to time prescribed by the terms of any ordinance not incon- sistent with the express provisions of the ordinance granting the permit. It is hereby made the duty of every such public utility to comply with all orders and regulations of such de- partment issued by virtue of the powers herein granted. The procedure of, by and before such department shall be as or- dained by the council of the municipality in the permit and other ordinances. The council shall also have power to pre: seribe the penalties for non-comphance with and the methods of enforcement of the orders and regulations of such depart- ment, not inconsistent with the express provisions of the or- dinance granting the permit. The provisions of the permit or of any ordinance or order of the municipality passed or issued under this act shall be binding upon all public officers and commissions. [103 v. 726.] Sec. 4000-11. [Appeals, when ordinance contains no pro- visions.] When the ordinance granting the permit contains no provisions whatever relative to appeal from or arbitration concerning the orders of the municipality, the utility may appeal to the public utilities commission of Ohio from any order of the municipality which is in violation of law or of the permit, or from any unreasonable order. concerning mat- ters upon which the parties have not agreed in the permit itself. Such appeal shall be by petition filed within thirty days from the issuance of the order. The filing of any such appeal shall not suspend the operation of the order appealed from unless the public utility shall give an undertaking pay- able to the municipality in such amount and containing such conditions as may be fixed by said commission. [103 v. 726.| Sec. 4000-12. [Procedure on appeals to public utilities com- mission.] In the event that the ordinance granting the per- mit provides for an appeal to or arbitration by the state pub- lie utilities commission, then such commission shall determine such appeal or arbitration according to the procedure, meth- ods, terms and conditions provided for in such ordinance. The provisions of law specially providing for judicial review of the orders of the public utilities commission shall not ap- § 4000-13 THE OHIO MUNICIPAL CODE. 522 ply to actions of the commission upon such appeals or arbi- tration. Except as provided in this and the next preceding section, the provisions of law relating to appeals, complaints, or applications to the public utilities commission shall not apply to public utilities operating under indeterminate per- mits. [103 v. 726.] Sec. 4000-13. [How duties shall be enforced.] In addition to the methods of enforcement herein provided, the duties herein imposed upon public utilities shall be enforceable by mandamus and all other judicial proceedings provided by law for the enforcement of the duties of public utilities. [103 v. 726. | Sec. 4000-14. Nothing in this act shall be construed to deprive any municipality of its rights to prescribe, by char- ter, any other methods, terms or conditions according to and upon which indeterminate permits may be granted in such municipality. [103 v. 726.] Sec. 4000-15. The invalidity of any section or any part of this act shall not be deemed to affect the validity of any other section or part thereof. [108 v. 726.] Sec. 4000-16. [Appointment, qualification and term of members.]' That whenever in any city the city council thereof shall, by ordinance, declare it to be essential to the interests of such city that a rapid transit commission, with the powers and duties described in this act, be appointed, the mayor of such city shall appoint a board of commissioners to be known as the board of rapid transit commissioners. Said board shall consist of five members, and they shall be electors of the county within which such city is located, and a majority of such commissioners shall be electors of such municipal corporation. Said commissioners shall serve with- out compensation, until such time as any of the contracts necessary for the construction herein authorized shall have been awarded. After which time said commissioners shall receive such compensation as may be fixed by the council of the city and shall give bond in an amount to be fixed by council and approved as other bonds of municipal officers and . a? es ee a a er _— PUBLIC UTILITIES. 523 § 4000-17 the premium, if any, on said bonds shall be paid by the city. Such commissioners shall be appointed for the terms of one, two, three, four and five years respectively, and their suc- cessors shall be appointed for a term of five years, in cities having no charter, and in cities having charters in accordance with the provisions thereof, and in case of vacancy by death, resignation or removal of a member of such board the mayor shall immediately appoint a successor to fill the vacancy for the unexpired term. The mayor, with the approval of the city council, may remove for malfeasance or nonfeasance in office any member of the commission upon charges and speci- fications thereof preferred by the mayor; copy of such charges and specifications shall be furnished the commissioner accused and he shall be given a hearing by the mayor and have the opportunity to confront the witness against him and to pre- sent his defense in person or by counsel; if the mayor’s de- cision upon said charges is in favor of removal, he shall cer- tify the proceedings and his findings of the council for ap- proval or disapproval and the action of council thereon shall be final. [108 v. 1101; 107 v. 406; 106 v. 286.] (1) Validity—The act entitled ‘fan act authorizing the creation of a board of rapid transit com- missioners in cities, defining its powers,’?’ etc., approved May 17, 1915 (106 O. L. 286), is a valid repugnant to the Constitution or any limitation contained therein. State, ex rel., v. Cin. St. Ry. Co., 97 O. S. 283. (Act referred to embraces Secs. 4000-16 to 4000- 28, 1n¢.) exercise of legislative power not _ Sec. 4000-17. [Organization of board; rules and regula- tions.] Said board of rapid transit commissioners shall elect one of its members president and another vice-president, who in the absence or disability of the president shall perform his duties. The board shall make its own rules, but its meetings shall be open to the public and all questions acted upon shall be decided by a yea and nay vote, with the name of each member voting recorded on the journal, and no question shall be decided unless approved by a majority of the members of the board. [106 v. 286] Sec. 4000-18. [Employment of clerks, engineers, superin- tendents, etc.; duties.] The board of rapid transit commis- § 4000-19 THE OHIO MUNICIPAL CODE. 524 sioners may employ clerks, engineers, superintendents, real estate experts, attorneys, and such other employes as may be necessary. The chief engineer of the subdepartment of engineering of the department of public service may be em- ployed as the chief engineer of said board and receive com- pensation in addition to that paid him as chief engineer of the subdepartment of engineering of the department of pub- lic service. The duties performed by the chief engineer of the subdepartment of engineering of the department of pub- lie service as engineer of the board of rapid transit commis- sioners and the compensation paid to said engineer shall be separate and distinct from the duties and compensation of said engineer as the chief engineer of the subdepartment of engineering of the department of public service and the duties of said engineer as engineer of the board of rapid transit commissioners, as provided by law, shall not be con- strued as being in conflict with his duties as chief engineer of the subdepartment of engineering of the department of public service under the provisions of this act. The sub- department of engineering shall perform such engineering services as may be determined by said board. The board of rapid transit commissioners shall fix the compensation and term of service of all of its employes. The superintend- ents, clerks, engineers, real estate experts, and attorneys of the board shall be in the unclassified civil service and all other employes shall be in the classified civil service of the municipality. Sections 4000-16 and 4000-18 of the General Code authorizing the creation of a board of rapid transit commissioners in cities, defining its powers, passed May 17, 1915, as herein amended shall apply to and govern all pend- ing proceedings. [107 v. 407; 106 v. 286. | (1) Authority of commission to employ legal counsel—See (in- cinnati v. Rogers, 98 O. 8S. 246. Sec. 4000-19. [Control and management in construction, maintenance, etc.] The board of rapid transit commission- ers shall have control and management of the construction of a rapid transit railway system, in, through, under, on or upon any lands, including also canal lands or parts thereof, to- gether with the streets, alleys and public ways outside of 525 PUBLIC UTILITIES. § 4000-20 such canal lands, whether within or without the limits of such corporation, and of depots and terminals for interur- ban, suburban, street and other electric railways, and the construction of interurban, suburban, street or rapid transit electric railways, and of any combination of two or more of such purposes, and shall have power of the acquisition, repair, control, operation, management and maintenance of the utilities so constructed and acquired. In all cases where the construction of a rapid transit sys- tem is in, through or under any land, including also canal lands or parts thereof, such board may construct a boule- vard or parkway on, upon or adjacent to such lands or canal lands; plans therefor shall, however, be first approved by the board of park commissioners in cities having such a board. On completion of any such boulevard or parkway the same shall be committed to the control, charge and maintenance of the municipal board or officer in charge of the park system of such city. [106 v. 286.] Sec. 4000-20. [Control and expenditure of appropriations; how moneys shall be provided; rejection of bids.] The board of rapid transit commissioners shall have control of the ex- penditure of all moneys appropriated by the city council or received from sale of bonds provided for in this act or from any other source whatever, for the purchase, construction, improvement, maintenance, equipment or enjoyment of all such rapid transit property, but no liability shall be incurred or expenditure made unless the money required therefor is in the city treasury to the credit of the board of rapid transit commissioners’ fund and not appropriated for any other pur pose, and moneys to be derived from the sale of bonds, the issue of which has been lawfully authorized shall be deemed to be in the treasury to the credit of said fund. All moneys expended for the construction and acquisition of parkways or boulevards, as authorized by this act, shall be provided for by special appropriation or bond issue, or partly by such special appropriation or bond issue and also partly by assess- ments, as specified in section 6 of this act, shall be separately accounted for, and such expenditure shall not be considered? a part of the rapid transit expenditure as herein authorized. § 4000-21 THE OHIO MUNICIPAL CODE. 526 Said board may let contracts for any and all part of the work to the lowest and best bidder after three weeks’ adver- tisement in two newspapers of general circulation in the mu- nicipality. Said board shall have the right to reject any and all bids, and the proceedings for said contracts and payment therefor shall be the same as are provided for the director of public service except the requirement of the approval of the board of control. . [106 v. 286.] Sec. 4000-21. [Assessment against property owners for con- struction of boulevard or parkway; limitations.] Such board of rapid transit commissioners may assess upon the abutting, adjacent, contiguous or other specially benefited lots or lands in the corporation fifty percent of the entire cost or expense connected with the construction of any boulevard or parkway as authorized by this act, and the proceedings by said board for the levying and collecting of any special assessments, in- cluding the issuance and sale of bonds in anticipation of the collection of such special assessments shall be as provided by law for the levy and collection of special assessments and the issuance and sale of bonds in anticipation of the collection of such assessments for street improvements in municipali- ties; providing that resolutions of necessity, determinations to proceed with the improvements, the making of the as- sessments and letting of contracts, the appointment of es- timating and equalizing boards in cases of assessments in proportion to benefits, the authorizing, the issuance, and sale of bonds in anticipation of the levy or collection of such as- sessments, and all other steps and proceedings preceding or relating to the levy of such assessments shall be adopted, passed, made, taken or performed by such board of rapid transit commissioners, and such board is hereby granted full power to adopt, pass, make, take and perform all such resolutions, steps and proceedings; and in such municipal corporations the plans, specifications and estimates shall at the time of the passage of the resolution of necessity be on file in the office of such board, and notice of such resolution shall be served by said board or any person or persons desig- nated by it for the purpose, and objections to assessments 527 PUBLIC UTILITIES, § 4000-22 and property owners claims for damages shall be filed with. the clerk of said board, and said board shall determine whether claims for damages shall be judicially inquired into before commencement or after completion of the improve- ment, and in general all steps required by law to be taken by or with the clerk of council shall as regards said park- way construction authorized by this act be taken by or with the elerk of such board of rapid transit commissioners. As- sessments for the above purpose shall be subject to the limi- tations provided by law for assessments for street and other improvements, and all collections made pursuant thereto shall be credited by the city auditor to the respective park- ’ way improvement. [106 v. 286.] Sec. 4000-22. [Issue of bonds; procedure; election.] When the board of rapid transit commissioners deems it necessary to issue bonds secured by the general credit of the munici- pality or to levy a tax for the purpose of carrying into effect the powers herein conferred the board shall, by written reso- lution, so declare its judgment and state therein the amount of bonds to be issued or the tax to be levied for such pur- poses and transmit the resolution to the city council, which may authorize the issuance of such bonds or levy a tax for the aforesaid purposes. Provided, however, that the total aggregate amount of bonds issued without being first sub- mitted to a vote of the people shall not exceed one hundred and fifty thousand dollars. If the council fails to enact legis- lation for the issuance of bonds at its next regular or special meeting after the resolution has been received by the clerk of council, it shall then be the duty of council at its next regu- lar or special meeting by ordinance to submit the question of the issuance of the bonds to a vote of the qualified electors of the municipality and the clerk of council shall file the ordi- nance with the board of deputy state supervisors of elections of the county; said board of deputy state supervisors shall then submit the question of the issuance of such bonds to the qualified electors of the city at either a special or a genera! election, as the ordinance may specify. Thirty days’ notice of the election shall be given in one or more newspapers printed in the municipality once a week for four consecu- § 4000-23 THE OHIO MUNICIPAL CODE. 528 tive weeks prior thereto, stating the amount of bonds to be issued and the purpose for which they are to be issued, and the time of holding the election. If a majority of the voters voting at such election upon the question of issuing the bonds vote in favor thereof it shail then become the duty of the eouncil of the city to enact within ninety days thereafter all legislation necessary to carry into effect the will of the ma- jority of the voters voting at such election and bonds shall be issued from time to time as they may be needed. [106 v. 286. | . Sec. 4000-23. [Aggregate amount not limited by any law of Ohio.] The aggregate amount of such bonds authorized ° by vote of the people or total indebtedness created under the authority of this act shall not be limited by the provisions of any act or statute of Ohio or law, except by the limitation herein set forth, and such aggregate or total indebtedness shall not exceed two per cent of the total value of all prop- erty in such municipal corporation as listed and assessed for taxation. [106 v. 286.] Sec. 4000-24. [Application of proceeds from sale of bonds.] The proceeds from the sale of such bonds may be used by said board of rapid transit commissioners for the construc- tion in, through, on, over, upon or under any eanal lands or property leased by such municipal corporation from the state of Ohio, or any lands, rights of way, or property outside of such canal lands, whether within or without the municipal corporation, of depots and terminals for street, interurban or suburban or rapid transit or street electric railways, or for the construecton of interurban, suburban, street or rapid transit electric railways, or of any combination of two or more of such purposes, and the necessary tracks, way sta- tions, depots, work shops, conduits, elevated structures, sub- ways, tunnels, offices, sidetracks, turnouts, machine shops, bridges and other appurtenances, and for the purchase, ac- quisition or condemnation of the necessary lands, easements and rights of way, and for the purchase of the equipment necessary for the operation thereof; and the proceeds of bonds specially issued therefor shall be used to pay the cost 529 PUBLIO UTILITIES. § 4000-25 for the construction of boulevards or parkways on, upon or adjacent to such lands or canal lands, subject to the provi- sions relative to the construction of and assessments for boulevards or parkways, as specified in sections 4, 5 and 6 of this act. [106 v. 286.] Sec. 4000-25. [Power in acquisition and appropriation of property.] The board of rapid transit commissioners is here- by given power to acquire by purchase or to appropriate, enter upon and hold any real estate or easement, partial or otherwise, therein, thereon, thereunder, or thereover, or any interests therein, both within and without the limits of the municipality, which it deems necessary for the purposes above specified; such power to be exercised in the manner provided by law for the acquisition and appropriation of property by municipal corporations. The board of rapid transit commissioners shall have the same powers and rights to cross and occupy streets and highways as are provided by law for street, suburban or interurban electric railways, and to receive from city, township, or county officers grants of the right to use or occupy streets and other public high- ways which officers are empowered to donate said grants to said board. The board shall have the power to order the removal of pipes, sewers, conduits, poles and other struc-. tures that are in the way of construction authorized by this act, and to temporarily suspend street car traffic. The cost of changing sewers and water pipes shall be included as part of the cost of construction, and the said board shall have the right to enter upon lands or buildings for exam- ination and surveys prior to appropriation proceedings, if any, therefor. [106 v. 286.] Sec. 4000-26. [Disposition of incomes.]' All rentals, pay- ments and fees of every description and all other income, earnings or revenues, received from all persons, firms and corporations for the use of said depot terminals and rail- ways, shall be kept in a separate and distinct fund, and after paying the expenses of the municipal corporation for the maintenance, conducting and managing said depots, terminals and railways, including the setting aside of a reasonable sum § 4000-26 THE OHIO MUNICIPAL CODE. 530 annually for depreciation to be applied to the repair or re- placement of any portion of said work, from the remainder of said receipts there shall annually be paid into the sinking fund of the city such sum or sums as are necessary for the payment of accruing interest on the bonds, if any, issued and outstanding for the construction of such rapid transit system, and for providing a sinking fund for the redemption thereof at maturity; and to the extent that said remainder shall not be sufficient for the said payment of the interest on said bonds and for the bonds issued during construction and for the said accumulation of a sinking fund sufficient for pay- ment thereof at maturity, the municipal corporation shall annually levy a tax sufficient for such purposes, and said - taxes for bonds issued by vote of the people shall not be subject to. any of the limitations provided by law for maxi- mum tax rates on property in the municipal corporation, ex- cept the combined maximum rate fixed in section 5649-5b of the General Code and in addition thereto, one-half mill may be levied. The surplus in any year above said expenses, depreciation charges, interest and sinking fund charges, shall up to the amount necessary to equal said deficiencies of previous years, be paid into the sinking fund of said city until the amounts _ paid into the sinking fund from the said revenues shall equal the total accrued interest and sinking fund charges on said bonds, and any amounts thus paid in on account of such past deficiencies, may be applied to interest or sinking fund charges on any indebtedness of said city. Any surplus above said expenses, depreciation charges, current interest and sink- ing fund charges and reimbursement. of past deficiencies of interest and sinking fund charges, may be used for the re- construction of, improvement of, additions to, or extensions of such depots, terminal and railway equipment. [106 vy. 286. | (1) City cannot loan its credit. a system of street railways —An ordinance of a city provid- already owned and _ operated ing for the grant to a street rail- by the company, which provides way company of the right to that the gross proceeds from the operate jointly a subway or street operation of such properties shall railway owned by the city with be used for the payment of ex- 531 isting and hereafter issued securi- ties of the company, is a pledging of the city’s credit for the private debts of a street railway com- pany, in violation of Section 6, Article VIII of the Constitution, which prohibits a city by vote of its citizens or otherwise from raising money for or loaning its eredit to or in aid of any com- pany, corporation or association. PUBLIC UTILITIES. § 4000-27 State, ex rel. v. Ry. Co., 97 O. S. 283. Where a municipal franchise ordinance provides that a _ suffi- cient sum is to be produced by fares charged, so that the city shall in any event get a specified amount of money, the deferring of the payment thereof is not a lending of credit of the city. Rogers v. Cincinnati, 22 N. P. (N. S.), 401. Sec. 4000-27. [Power to lease depots, terminals, etc.; sub- mission of question.] Said board of rapid transit commission- ers may grant to any corporation organized for street rail- way or interurban railroad purposes the right! to operate by lease or otherwise such depots, terminals and railways upon such terms and conditions as said board shall be authorized by ordinance to agree upon with such corporation, subject to the approval of a majority of the electors of the munici- pal corporation voting thereon. Said board shall certify said lease or agreement to the board of deputy state super- visors of election of the county, and said board of deputy state supervisors shall then submit the question of the ap- proval of said lease or agreement to the qualified electors of the city at either a special or general election as the ordi- nance may specify. Thirty days’ notice of the election shall be given in one or more of the newspapers printed in the municipality once a week for four consecutive weeks prior to the time of holding said election as heretofore specified, setting forth the terms of said lease or agreement and the time of holding the election. On the approval by a major- ity of the voters voting at such election said corporation 1s invested with the power to operate such depots, terminals and railways as provided in said lease or agreement, and corporations organized under the laws of Ohio for street railway or interurban railroad purposes are hereby invested with power to lease and operate such depots, terminals and railways. [106 v. 286.] (1) Not a delegation of legis- lative power.—An ordinance of a municipality passed pursuant to law, which confers upon an ad- § 4000-28 ministrative board authority to grant to a corporation the right to operate a public utility owned by the municipality, upon the terms and conditions specified in the ordinance, and empowers such board to perform certain specified THE OHIO MUNICIPAL CODE. 532 administrative duties which are necessary to the carrying out of the plan provided for in the or- dinance, does not thereby delegate legislative power in violation of the Constitution. State, ex rel. v. Cin. St. Ry. Co., 97 0. S. 283. Sec. 4000-28. [Section or provision held invalid shall not affect any other part.] Should any section or provision of this act be decided by the courts to be invalid, the same shall not affect the validity of the act as a whole or any part thereof, other than the part so decided to be invalid, and all acts of said board of rapid transit commissioners shall be authorized or approved by ordinance as may be required by the constitution of Ohio. [106 v. 286.] 533 UNIVERSITIES. § 4001 CHAPTER 3. UNIVERSITIES AND LIBRARIES. UNIVERSITIES.* Sec. 4001. [Administration, management.]? In any mu- nicipal corporation having a university supported in whole or in part by municipal taxation all the authority, powers and control vested in or belonging to such corporation with respect to the management of the estate, property and funds given, transferred, covenanted or pledged to such corporation in trust or otherwise for such university, as well as the gov- ernment, conduct and control of such university shall be vested in and exercised by a board of directors consisting of nine electors of the municipal corporation.® (1) Other provisions relating to municipal universities will be found under title “Municipal Uni- versities,” in Part II, §§ 7902-7922. (2) Old sections.—See general- ly old §§ 4095 to 4104 R. S., re- pealed. \38) Validity.—The §§ 4095 to 4104 inclusive (as written before amendments of 1904), providing for the acceptance by certain cities of trust funds for educational purposes, were held not unconstitutional for want of corporate capacity on the part of the municipalities to receive and execute the trust nor because the acts were special. State ew rel. v. Toledo, 3 C. C. (N. S.) 468, 23 C. C. 327; and see also Perin v. Carey, 65 U. S. 465. Nor is a tax levy to aid such in- stitutions as here provided for, un- [96 v. 91, § 217.] constitutional. State ew# rel v. To- ledo, 23 C. C. 327. Character of board.—A board of trustees such as provided for in these sections, is a legal board vested with certain powers, but is not a corporation. Jb.; see also State v. Powers, 38 O. S. 54. Actions against board.—Quo warranto will not lie to oust the members of such board because they exceed their powers in extending the course of instruction. Injunction would be the proper remedy, and eourts of equity would have juris- diction in such cases. State ew rel. v. Toledo, 3 GC. C. (N. S.) 468, 23 C. C. 327. University.—The word “univer- sity” must be construed according to the legislative intent and not in >: § 4002 THE OHIO MUNICIPAL CODE. 534 its strict, technical sense, in con- of university, held a proper appli- struing gifts to a “university.” Wad- cation of university funds derived dick v. Merrell, 26 C. C. 437. from taxation. Cincinnati v. Jones, Erection of dwelling for president 28 C. C. 210. Sec. 4002. [Directors, how appointed.] Such directors shall be appointed by the mayor of the municipal corporation, three for a term of two years, three for a term of four years and three for a term of six years, and thereafter as the terms expire the mayor shall appoint three directors for a term of six years each and shall fill all vacancies in the board. Such board of directors shall be known as ‘‘The Board of Directors Co ARR SINS abate University’’ (filling out blank with the name of the university). [96 v. 91, § 217.] Sec. 4003. [Powers and duties.] Such directors shall serve without compensation and shall have all the powers and per- form all the duties conferred or required by law in the gov- ernment of such university, and the execution of any trust with respect thereto imposed upon the municipal corporation. L9G *y. Gl S214 LIBRARIES.? Sec. 4004. [Erection, equipment and control; appointment of trustees.] Except as provided in General Code, sec- tion 4005-1, the erection and equipment, and the custody, control and administration of free public libraries estab- lished by municipal corporations, shall be vested in six trus- tees, not more than three of whom shall belong to the same political party, and not more than three of whom shall be women. Such trustees shall be appointed by the mayor, to serve’ without compensation, for the term of four years and until their successors are appointed and qualified. In the first instance three of such trustees shall be appointed for a term of two years, and three for a term of four years. Va- * ecancies shall be filled by like appointment for the unexpired term. [107 v. 612; 97 v. 35, § 218; 96 v. 91, § 218.] (1) Power to establish and given to municipalities in § 3620, maintain free public libraries is ante. 585 Power to appropriate sites for library buildings is given in § 3677. Power to issue bonds, for the erection and equipment of public library, §§ 3939, 4007-4012. Special acts relating to pub- lic libraries. Cincinnati, §§ 14993-15005 G. C., appendix, Cleveland, §§ 15006-15026 G. C., appendix. Toledo, §§ 15089-15051 G. C., ap- pendix. Dayton, §§ 15027-15033 G. C., ap- pendix. Portsmouth, 97 O. L. 625. Canton, 94 O, L. 739. Massillon, §§ 15034-15038 G, C., appendix. Findlay, 85 O. L. 546. Youngstown, 87 O. L. 105. Ironton, 90 O. L. 311. Sec. 4005. LIBRARIES. § 4005 Cambridge, 95 O. L, 736. Cities of fourth grade, second- class and certain other cities and villages, §§ 15052-15067 G. C., ap- pendix. Validity of special acts relat- ing to libraries. As to validity act of May 9, 1902 authorizing the trustees of the public library of the school dis- trict of the city of Cincinnati to receive a donation from Mr. Andrew Carnegie and to establish branch libraries, see Sadler v. Porter, 67 O. S. 531 decided on the authority of Cincinnati v. Trustees of Hospital, 66 O. S. 440, and State ew rel, v. Spellmire, 67 O. S. 77. School libraries.—For acts re- lating thereto, see §§ 7631-7642 G. C. No power to pay premium on surety bonds. See Op. Atty. Gen. (1923), No. 431. [Powers and duties.] Except as provided in General Code section 4005-1, such trustees shall employ the librarians and necessary assistants, fix their compensa- tion, adopt the necessary by-laws and regulations for the protection and government of the libraries and all prop- erty belonging thereto, and exercise all the powers and duties connected with and incident to the government, operation and maintenance thereof. Four trustees shall constitute a quorum, and four votes shall be necessary to pass any meas- ure to authorize any act, which votes shall be taken by the yeas and nays and entered on the record of their proceedings. In the making of contracts, the trustees shall be governed by the provisions of law applicable thereto. [107 v. 612; 97 v. 35, § 218; 96 v. 91, § 218.] Sec. 4005-1. [Bonds for buildings and furnishings; erec- tion, equipment and control vested in trustees; library organi- zation may operate under agreement.] In any municipality where there is or may hereafter be a library organization created by will or otherwise for the purpose of maintaining § 4006 THE OHIO MUNICIPAL CODE. 536 in perpetuity a publie library, and which organization is en- dowed and owns and maintains a library, the trustees men- tioned in General Code, section 4004, may issue bonds as provided for in General Code, sections 4007 to 4013, both in- clusive, for the purpose of providing a building or buildings for such library and furnishing the same and to pay the cost and expense thereof. The erection, equipment, maintenance and control of such building or buildings shall be vested in the trustees mentioned in General Code, section 4004, and said trustees may enter into an agreement in writing with such library organization whereby said library organization may occupy all or a part of such building or buildings, and conduct, operate and maintain therein a free public library, the period of each such agreement to be not less than ten nor more than twenty-five years. Such library organization shall administer, operate and control such library in accord- ance with said agreement and the terms of the trust creating such organization, providing the same is free to all the in- habitants of the municipality, and if deemed necessary by the council of any such municipality, it may levy a tax and contribute to the expense of maintaining such library under the provisions of General Code, section 4019. And said trus- tees mentioned in General Code, section 4004, may enter into a similar agreement with any historical or other educational association whereby a part of said building or buildings may be used by such organization for the housing and displaying of its property and effects, providing the same is free to all the inhabitants of the municipality. [107 v. 612.] Sec, 4006. [Women may be members of board.] Any woman born or naturalized in the United States, of the age of twenty-one years and upward, who has been a resident of the state at least one year, and of the municipality in which such library is established, for the period of thirty days, shall be qualified to be appointed and serve as such trustee. [97 v. 35, § 218; 96 v. 91, § 218.] Sec. 4007. [Bonds to provide for and furnish library build. ings.] Any public library board charged by law with the title, custody, control and maintenance of a public library in 537 LIBRARIES. § 4008 the state, may issue bonds, with interest coupons attached, to provide buildings for the public library in their charge, and to furnish them, and to pay the cost. and expense thereof. In anticipation of the income from such taxes levied from time to time as occasion requires, the board may issue and sell bonds, bearing interest payable semi-annually at a rate specified therein not to exceed five per cent per annum, and in such sums and at such times as the board determines, which bonds shall be numbered consecutively, made payable to the bearer, and be signed by the president and secretary of the board and denominated ‘‘public library bonds of the ........ library’? (naming the one to provide and furnish buildings for which they are issued). [98 v. 260, § 1.] Sec. 4008. [Record of bonds; how sold.] The secretary of the board shall keep a record of the number, date, amount, and rate of interest on each bond sold, the sum for which and the name of the person to whom sold, and the time when payable, which record shall be open to the inspection of the public at all reasonable times. The bonds so issued shall in no case be sold for a less sum than the par value, nor bear interest until the purchase money for them has been paid ‘by the purchaser. The library board shall pay such bonds and the interest thereon when due, but the total issue of bonds shall not exceed three and one-half mills on the dollar of the tax duplicate of the district upon which taxes are levied for the support of such library. [98 v. 260, § 1.] Sec. 4009. [Order for issue of bonds.] The order to issue such bonds shall be made only at a regular meeting of the board and by a vote of two-thirds of all the members thereof, taken by yeas and nays and entered on the journal of the board. [98 v. 260, § 2.] Sec. 4010. [Advertisement of sale.] Such bonds shall be sold to the highest bidder after being advertised once a week for four consecutive weeks in a newspaper having a general circulation in the county where the bonds are issued. If there is more than one newspaper in the county, the sale of § 4011 THE OHIO MUNICIPAL CODE. 538 such bonds shall be advertised in at least one such additional newspaper. [98 v. 260, § 2.] Sec. 4011. [What advertisement shall state.] The adver- tisement shall state the total number of bonds to be sold, the amount of each, how long they are to run, the rate of interest to be paid thereon, whether annually or semi-annually, the law or section of law authorizing their issue, the day, hour, and place in the county where they are to be sold, and the privilege shall ‘be reserved by such board to reject all or any bids, and if such bids are rejected, the bonds shall be readver- tised. The moneys arising on premiums of their sale as well as the principal shall be credited to the fund on account of which they are issued and sold, and shall be used for the pur- pose only for which issued. [98 v. 260, § 2.] Sec. 4012. [Question of bond issue must be submitted to vote.]_ No order for the issue of such bonds shall become operative until the question of such issue has been submitted to the qualified electors of the district maintaining the library, at a general or special election, and has been approved by a majority of the voters voting thereon at such election. [98 v. 260, § 2.] Sec. 4013. [Tax levy for payment of bonds.] For the pur- pose of creating a sinking fund for the extinguishment of the bonds provided for in the preceding sections, ‘the library board each year, until the payment of the bonds are fully provided for, may levy and collect a tax in addition to other taxes authorized to be levied by it, which ghall not exceed two and one-half tenths of a mill upon the taxable property of the district taxed for the support of the library. Such tax shall be paid into the treasury of the board, and on order of the public officer charged by law with the duty of drawing warrants upon such treasury paid into the sinking fund here- inafter provided for, and by the trustees thereof applied, by order of the library board, to the extinguishment of such bonds, and to no other purpose whatever, The taxes so levied shall be certified and placed on the tax list and collected in the same manner as other taxes of the taxing district, and 539 LIBRARIES. § 4014 such tax shall be a lien upon the property on which it is assessed, the same as state and county taxes, and subject to the same penalties if delinquent. [98 v. 261, § 3.] LIBRARY SINKING FUND. Sec. 4014. [Board of trustees of library sinking fund.] There shall be created in each such taxing district, a board of trustees of the library sinking fund who shall have the con- trol of all moneys and securities for the payment of interest upon and for the redemption of bonds heretofore issued or issued under the authority of this chapter in such taxing district. Such board shall be composed of three citizens of the taxing district, to be appointed by the court of common pleas in the county in which the public library is situated. The first appointment shall be one for the term of one year, one for the term of two years, and one for the term of three years, and all trustees appointed thereafter shall serve for three years, except in case of vacancy, which shall be filled by such court for the unexpired term. [99 v. 2638, §4: 98 v. 261. ] Sec. 4015. [Bond of members.] Before any. such money shall be paid to such board, or before any person appointed as a member of a board coming into existence assumes the duties of his office, each member thereof shall give bond to the state in amount equal to two per cent of the amount of the bonds issued by the library board, with not less than two sureties, to faithfully discharge his duties. [99 v. 263, § 4; 98 v. 261.] Sec. 4016. [Organization of board; meetings and records. ] Immediately after appointment and qualification, such trus- tees shall organize by appointing one of their number presi- dent, and the officer charged by law with the drawing of warrants on such treasury shall act as secretary. The library board shall provide such trustees with a place of meeting, and they shall hold regular meetings on the second Monday of January and July of each year, but other meetings may be called by the president or any member of the board. Their § 4017 THE OHIO MUNICIPAL CODE. 540 proceedings shall be recorded in a journal kept for that pur- pose, which shall at all times be open to the inspection of the library board or any member thereof, and questions relating to the purchase or sale of securities, payment of bonds or interest, shall be decided by a viva voce vote with the name of each member voting recorded on the journal. No question shall be decided unless approved by a majority of the whole board. [98 v. 262, §5.] Sec. 4017. [Rate of tax to be certified to library board.] In the month of May in each year, and oftener if required, the trustees of such sinking fund shall certify to the library board the rate of tax, not to exceed the limit herein provided, necessary to provide a sinking fund for the payment of all bonds issued by authority of law for library purposes in such taxing district together with the amount necessary to be levied to provide for the payment of interest thereon, and the library board shall levy the amount so certified. Such board may increase the amount so certified, but the total amount so levied shall not exceed the limitation herein provided. [99 v. 264, $63. 98°v 1262) Sec. 4018. - [Investment of sinking fund.] The trustees of such sinking fund shall invest the sinking fund in bonds of the United States, of this state, of any municipal corporation, county, township or school district of any state or in bonds of such library board. All interest received from such invest- ments shall be deposited as other funds of such sinking fund, and reinvested in a like manner. For the extinguishment of | any bonded indebtedness included in such sinking fund, the board of trustees of the sinking fund may sell or use any of the securities or money of the fund. [98 v. 262, § 7.] LIBRARY ASSOCIATIONS. Sec. 4019. [Compensation to private company for main- taining library. ] Repealed, 110 v. 410. 541 ART GALLERIES. § 4020 ART GALLERIES. Sec. 4020. [Compensation to private company for main- taining free art gallery.] The council of each city may levy and collect a tax not to exceed one-quarter of one mill on each dollar of the taxable property of the municipality each year, and pay it to a private corporation or association maintaining and furnishing a free museum or gallery for the exhibition of paintings, sculpture and other works of art, and, in con- nection therewith, an academy for advancing, improving and promoting painting, sculpture, drawing, architecture and other fine arts, and furnishing instruction therein by lectures and otherwise, for the benefit of the inhabitants of the munici- pality, as and for compensation for the use and maintenance thereof. Without change or interference in the organization of such corporation or association, the council shall require the treasurer of such corporation or association to make an annual financial report, setting forth all the money and prop- erty which has come into its hands during the preceding year, and its disposition thereof, together with recommendation as to future necessities. [98 v. 146, § 218a.] § 4021 THE OHIO MUNICIPAL CODE. 542 CHAPTER 4. HOSPITALS. MUNICIPAL HOSPITALS.' Sec. 4021. [Council may levy tax to compensate free pub- lic hospital.] The council of each municipality, annually, may levy and collect a tax not to exceed one mill on each dollar of the taxable property of the municipality and pay the amount to a private corporation or association which maintains and furnishes a free public hospital for the benefit of the inhabitants of the municipality, or not free except. to such inhabitants of the municipality as in the opinion of a majority of the trustees of such hospital are unable to pay.” Such payment shall be as and for compensation for the use and maintenance of such hospital. Without change or inter- ference in the organization of such corporation or association, the council shall require the treasurer thereof, annually, to make a financial report setting forth all of the money and property which has come into its hands during the preceding year and the disposition thereof, together with any recom- mendations as to its future necessities. [98 v. 123, § 219; 96 v. 92, § 219.] (1) Establishment and man- pital organized for profit. Op. agement.—Power to establish and maintain municipal hospitals is con- ferred upon municipalities by § 3646, and the power to levy taxes for their support is conferred by §§ 3784 and 3785. Municipal hos- pitals in cities are managed by the director of public safety, §§ 4370 and 4035. Municipal hospitals in villages are under the control of council, § 4356. City may apportion proceeds of levy for hospitals between two institutions, but not with a hos- Atty. Gen. (1915), p. 332. City may levy for funds here- under to care for indigent sick, but not to refund losses sustained by a hospital under contract. Op. Atty. Gen. (1916), p. 1377. Other provisions.—See generally title “Charitable and Reformatory Institutions,’ in Part IT. (2) Liability for negligence of private corporation maintaining charity hospital, see Connor v. Sis- ters of the Poor, 7 N. P. 514, HOSPITALS. 543 § 4022 Sec. 4022. [Council may agree with a corporation for hos- pital service.]’ Such council may agree with a corporation organized for charitable purposes and not for profit, for the erection and management of a hospital suitably located for the treatment of the sick and disabled of such municipality, or for an addition to such hospital, and for a permanent in- terest therein to such extent and upon such terms and con- ditions as may be agreed upon between them, and the coun- cil shall provide for the payment of the amount agreed upon for such interest either in one payment or in annual install- ments as may be agreed upon. Provided, that such agree- ment shall not become operative until approved by a vote of the electors of such municipality as provided for in the next section. [110 v. 859; R. S. See. 2166; 66 v. 199.] (1) Validity of such contract. See Zanesville v. Crossland, 8 C. C. 652, reversed, 56 O. S. 735. If permanent interest is secured in hospital hereunder it must be When a city has subsidized a private hospital under contract to care for its sick or disabled, who may be rejected by such hospital, Op. Atty. Gen. (1915), p. 649. governed, how. Op. Atty. Gen. (1918), p. 1474. Sec. 4022-1. [Submission of question to electors.] Upon the execution of the agreement provided for in section 4022 the council of the municipality shall submit to the electors of the municipality, at the next general election occurring more than sixty days*after the passage of the resolution pro- viding for such submission, the question of the ratification of such agreement, and if the sum or sums to be paid by the municipality under the terms of such agreement are not available from current general revenues of the municipality, the council shall also submit to the electors, at the same election, the question of the issue of bonds of the municipal- ity in the amount specified in such agreement for the pur- pose of providing funds for the payment thereof. The pro- ceedings in the matter of such election and in the issuance and sale of such bonds, if authorized, shall be as otherwise provided by law for municipal bonds. Provided, that such agreement shall not be effective, and no bonds shall be issued, unless the electors approve of both the agreement and the § 4023 THE OHIO MUNICIPAL CODE. 544 bond issue, if the question of the issue of bonds is so sub- mitted. [110 v. 359, 360.] Sec. 4023. [Board of hospital commissioners.] When the council of a municipality enters upon and takes possession of grounds purchased, appropriated, or otherwise obtained for © hospital purposes, and, by resolution or ordinance, determines to erect thereon or rebuild a hospital, the erection and repair thereof, or any addition thereto, shall be vested in a board of five commissioners, called the ‘‘Board of Hospital Commis- sioners.’’? [R. S. Sec. 2153; 66 v. 197.] (1) Section 2153 R. S., of which the above section is a revision, the board of hospital commissioners. This was inconsistent with the pro- provided that not only supervision of erection and repair, but the “man- agement, direction and control” of such hospital should be vested in visions of the municipal code giv- ing the management of all municipal hospitals to the director of public safety. See note to § 4035. Sec. 4024. [Who shall compose the board.] The board shall consist of the mayor, who, by virtue of his office, shall be its president, and four trustees, to be appointed by the “mayor, with the consent of the council. Such commissioners shall be resident freehold electors of the corporation, and they shall not receive any compensation for their services. [R. S. See. 2154; 66 v. 197.] Sec. 4025. [Terms of office.] The term of office of the ap- pointed members of the board shall be four years, but the members first appointed shall hold their offices, respectively, as shall be determined by lot, at the first meeting of the board, for the periods of one, two, three, and four years, and there- after one member shall be appointed each year for the full term of four years. A majority of the board shall constitute a quorum. [R. S. See. 2155; 66 v. 197.] Sec. 4026. [Powers of board; compensation of appointees.] The board may appoint a clerk, an architect, a superintendent, and other necessary employes, fix their compensation, and adopt a suitable plan for such hospital, and make all con- tracts for the erection and furnishing thereof, The salary of 545 HOSPITALS. § 4027 the appointees, and the plan of the hospital, before any con- tract for its erection is entered into, shall be submitted to and approved by the council. [R. 8. Sec. 2156; 66 v. 197.] Sec. 4027. [Regular meetings, and record thereof.] The board shall hold regular meetings at such time and place as is agreed upon, and cause to be kept a full record of its pro- ceedings. No contract which it enters into shall be valid until concurred in at a regular meeting by a majority of all the members, and such concurrence entered on the minutes of its proceedings. [R. 8. Sec. 2157; 66 v. 197.] Sec. 4028. [No expenditure without authority of board; no member to be interested.] No money shall be paid for the erection, re-building, or repair of a hospital, or for any addi- tion thereto, or for supplies therefor, unless first authorized by the board, and upon the warrant of the proper officer of the corporation. No member of the board shall be interested, directly or indirectly, in any contract concerning the insti- tution. [R. 8. See. 2158; 66 v. 197.] Sec. 4029. [Plans and specifications.] Before entering into any contract for the erection of a hospital building, the board shall cause plans, specifications, detailed drawings, and forms of bids to be prepared, and when adopted by the board, it may, at its discretion, cause the plans and drawings to be lithographed, and the specifications, forms of bids, and a form of contract and bond, to be prepared by the solicitor of the corporation, and have them printed for distribution among the bidders. [R.S. See. 2159; 66 v. 198.] Sec. 4030. [Terms of contracts.] All contracts shall be made in the name of the corporation, and it shall be stipulated therein that the contractor will not execute any extra work, or make any modifications or alterations mentioned in the specifications and planus, unless ordered in writing by the board, that he will not claim any pay therefor unless such written order is given, and the extra price of compensation fixed and agreed upon. Copies of the plans and drawings, attested by the contractor, and the original bids, specifications, § 4031 THE OHIO MUNICIPAL CODE. 546 and contracts shall be deposited in the office of the clerk of the corporation. [R. 8. Sec. 2160; 66 v. 198. | Sec. 4031. [Proposals to be advertised for.] The board shall not enter into any contract for work or materials, except as relates to procuring plans, drawings, specifications, and forms of bids, without first causing thirty days’ notice to be given in one or more newspapers of general circulation in the corporation, that sealed proposals will be received for doing the work or furnishing the materials. [R. S. See. 2161; 66 v. 198. ] Sec. 4032. [Bids to be accompanied by bond.] Each bid shall be accompanied with a bond, signed by sufficient sureties, for the acceptance of the contract, if awarded by the board, to fully secure any difference between the amount of such bid and the next higher bid, and such amount shall be collected by the board, and paid into the hospital fund, in ease of re- fusal by the bidder to enter into contract according to his bid, within such reasonable time as the board may determine. [R. S. See. 2162; 66 v. 198.] Sec. 4033. [Bids to be sealed and indorsed.] Each bid shall be inclosed in a sealed envelope and deposited with the clerk of the board, and such envelopes shall have indorsed thereon the nature thereof, and all bids shall be opened at a regular meeting of the board. [R. S. See. 2163; 66 v. 198.] Sec. 4034. [Contract with lowest bidder.] The board shall enter into contract with the lowest responsible bidder, upon his giving bond to the corporation, with such surety as the board approves, that he will perform the work and furnish materials in accordance with his contract. On failure of such bidder within a reasonable time, to be fixed by the board, to enter into bond with such surety, a contract may be made with the next lowest responsible bidder, and so on, until a contract is effected by a contractor giving such bond, but the board may reject any and all bids. [R. S. Sec. 2164; 66 v. 198. ] 4 : q 4 547 HOSPITALS. § 4035 Sec. 4035. [Director of public service to control hospital.] The director of public safety shall have the entire manage- ment and control of such hospital, when completed and ready for use, and subject to the ordinances of council, shall estab- lish such rules for its government, and the admission of per- sons to its privileges, as he deems expedient. Such director may also employ a superintendent, steward, physicians, nurses, and such other employes as he deems necessary, and fix the compensation of all persons so employed, which compensation shall be subject to the approval of the council. [R. S. See. 2165; 67 v. 71.] (1) Section 2156 R. S., of which the above section is a revision, pro- vided that the board of hospital giving the management of all munic- ipal hospitals to the director of pub- lic safety, commissioners should have the man- agement and control of such hos- pital. This was inconsistent with the provisions of the municipal code Compensation of employees of municipal hospital. See Op. Atty. Gen. (1921), p. 1095. TRUSTEES OF HOSPITAL FUNDS. Sec. 4036. [Care of property donated for hospital purposes. ] In any municipal corporation which has become or may here- after become the owner or trustee of property for hospital purposes, or of funds to be used in connection therewith, by deed of gift, devise or bequest, such property or funds shall be managed and administered in accordance with the provi- sions or conditions of such deed of gift, devise or bequest. [96 v. 92, § 220.] Sec. 4037. [Bond of hospital trustees for such donated property.] When such deed of gift, devise or bequest re- quires the investment, or change of investment of the principal of such property funds, or any part thereof, to be made upon the approval of an advisory committee appointed by the court or judge, such property or funds, and any hospital property for the care or management of which in whole or in part, such fund is used, shall be managed, controlled and ad- ministered by a board of hospital trustees. [96 v. 92, § 220.] § 4038 THE OHIO MUNICIPAL CODE. 548 Sec. 4038. [Appointment and term; vacancies.] Such board shall consist of four resident electors of the municipal corporation, who shall be appointed by the trustees of the sinking fund, and shall serve without compensation for the term of four years and until their successors are appointed and qualified. Such trustees shall be appointed in the first instance to serve for one, two, three and four years, respec- tively, and thereafter their successors shall be appointed one each year to serve for the term of four years, but not more than two shall be of the same political party. Vacancy in the board by death, resignation or otherwise shall be filled in like manner for the remainder of the term. [96 v. 92, § 220.1 Sec. 4039. [Powers and duties.] Such board of trustees shall have the right to apply, control and invest and reinvest the funds coming or arising from such gift, devise or bequest according to the terms and conditions on which acquired. [96 v. 92, § 220. ] : Sec. 4040. [Compensation; oath; bond.] The members of such board of hospital trustees shall serve without compensa- tion, and before entering upon the discharge of their duties shall take the oath of office prescribed by law, and shall give bond in the sum of twenty-five hundred dollars, conditioned according to law and to the approval of the mayor and coun- eil. [93 v. 709, §3; Bates 2167-9 (1536-425).] Sec. 4041. [Meetings; rules and regulations; clerk.] Such board shall hold meetings at least once a month, and shall adopt all necessary rules for the regulation of its business. It shall keep a complete record of all its proceedings, which record, or a copy thereof, duly certified by the clerk of the board, shall be competent evidence of the transactions of the board in all the courts of this state, and the ayes and nays shall be called upon the passage of every resolution or order. Three members of the board shall constitute a quorum for the transaction of all business, and no resolution or order shall be adopted or contract or other obligation entered into unless three members vote in favor thereof. No member of the board shall be interested, directly or indirectly, in any contract 549 HOSPITALS. § 4042 concerning any hospital under the control of such board. The municipal auditor or clerk shall act as the clerk of such board, and shall receive no additional salary or compensation for such services. [93 v. 709, §4; Bates 2167-10 (1536-426). ] Sec. 4042. [Powers of such board.] Subject to the ordi- nance of council, such board shall‘have the entire management and control of such property or funds, and shall establish such rules for the government thereof as it deems expedient. Such board shall also have the entire control of the expendi- ture of all moneys therefrom and they shall be disbursed by the treasurer of the municipality only upon the warrant of the municipal auditor or clerk, drawn in accordance with the order of such trustees. [93 v. 709, §5; Bates 2167-11 (1536- 427).] Sec. 4043. [Regulations to protect such property.] Such board shall have the entire management and control of the erection, rebuilding and repair of all buildings, and the entire management and control of all grounds so acquired, and shall adopt rules and regulations for the protection, care and government thereof, and such rules, when approved by the council of the municipality, shall have the same effect and may be enforced by the same penalties as ordinances thereof. [93 v. 709, § 6; Bates 2167-12 (1536-428). ] Sec. 4044. [Procedure before entering into contracts.] Be- fore entering into any contract for the erection of a hospital building, or for the rebuilding or repair of a hospital build- ing, the cost of which exceeds one thousand dollars, such board Shall cause plans, specifications, detailed drawings and forms of bids to be prepared, and when adopted by the board, it Shall have them printed for distribution among the bidders. [93 v. 709, § 7; Bates 2167-13 (1536-429).] Sec. 4045. [How contracts to be made.] All contracts Shall be made in the name of such trustees, and it shall be stipulated therein that the contractors will not execute any extra work or make any modifications or alterations in the Specifications and plans, unless ordered in writing by the § 4046 THE OHIO MUNICIPAL CODE. 550 board, that they will not claim pay therefor unless such written order is given, and the extra price or compensation fixed and agreed upon. Copies of the plans and drawings attested by the contractor, and the original bids, specifications and con- tracts shall be deposited in the office of the clerk of the cor- poration. [93 v. 710, §8; Bates 2167-14 (1536-430). ] Sec. 4046. [Notice for bids.] Such boards shall not enter into a contract for work, or supplies, where the estimated cost thereof exceeds one thousand dollars, without first causing thirty days’ notice to be given in one newspaper of general circulation in the corporation, that sealed proposals will be received for doing the work or furnishing the materials and supplies. [93 v. 710, §9; Bates 2167-15 (1536-481).] Sec. 4047. [Bond shall accompany each bid.] Each bid shall be accompanied with a bond, signed by sufficient security, for the acceptance of the contract, if awarded by the board, to fully secure any difference between the amount of such bid and the next higher bid, and such amount shall be collected by the board and paid into the hospital fund, in case of the refusal by the bidder to enter into contract according to his bid, within such reasonable time, as the board determines. [93 v. 710, § 10; Bates 2167-16 (1536-432).] Sec. 4048. [Bids shall be sealed.] Each bid shall be en- closed in a sealed envelope, and deposited with the clerk of the board, and such envelope shall have endorsed thereon the nature thereof. All bids shall be opened at a regular meet- ing of the board. [93 v. 710, §11; Bates 2167-17 (1536-433).] Sec. 4049. [With whom board to contract.] The board shall enter into contract with the lowest responsible bidder, upon his giving bond to such board, with such security as the board approves, that he will perform the work and furnish materials or supplies in accordance with the contract. On the failure of such bidder within a reasonable time, to be fixed by the board, to enter into bond with such security, a contract may be made with the next lowest responsible bidder, and so on, until a contract is effected by a contractor giving such 551 HOSPITALS. § 4050 bond. The board may reject any and all bids. [93 v. 710, §12; Bates 2167-18 (1536-434). ] Sec. 4050. [Power of board to incur liabilities.] Such trus- tees shall incur no lability for hospital purposes beyond the amount of the funds levied or received for such purposes. [93 v. 710, § 13; Bates 2167-19 (1536-435). ] Sec. 4051. [Employment of superintendents, physicians and employes.] The board of hospital trustees may employ such superintendents, physicians, nurses and other employes as it deems necessary for the execution of its duties and fix their salaries or compensation. Any of such persons may be re- moved by the board at any time. [ 93 v. 710, §14; Bates 2167-20 (1536-486). ] Sec. 4052. [Report to council.] On the first Monday in January each year, the trustees shall make a report to the council of their proceedings, with a detailed statement of their receipts and expenditures during the year. They shall also at the proper time submit to the council a detailed estimate of the amount necessary to maintain and improve such hos- pital for the ensuing year. [93 v. 710, §15; Bates 2167-21 (1536-437). ] § 4053 THE OHIO MUNICIPAL CODE. 552 CHAPTER 5. PARKS.* PARK COMMISSIONERS. Sec. 4053. [Board of park commissioners; election.]? When five per cent of the qualified electors of a city petition the © board of deputy state supervisors of elections of the county for the privilege of determining by ballot whether there shall be a board of park commissioners with the powers hereinafter provided for, such board shall submit at the next general election held within such city, or at a special. election, if the petition requests a special election, the questions presented in the petition, to the electors of the municipality. Such special election shall be held at the usual place or places for holding municipal elections and shall be governed by the same rules, regulations and laws as govern the holding of municipal elec- tions. [99 v. 440, §1.] (1) Municipal power and_ of parks in cities, see § 4326, post. control.—Power generally to hold Management of, in villages, see and improve parks, see § 8631, § 4356, post. ante. Appropriation of property (2) Validity of park commis- for, see § 3677, ante. Issue of bonds sion act.—See Henderson v. Cin- for, see § 3939, ante. Management cinnati, 81 O. S. 27. Sec. 4054. [Appointment, term, compensation, vacancy. ] If a majority of the electors voting at such election on the questions vote in favor of the appointment of a board of park commissioners, the mayor shall immediately appoint three electors of the city as members of such board, to be known as the board of park commissioners. Such members shall be appointed for terms of one, two and three years, respectively, and their successors shall be appointed for terms of three years. In case of the death or resignation of a member of such board, the mayor shall immediately appoint a successor to fill the vacancy for the unexpired term. The members of 553 PARKS. § 4055 the board shall serve without compensation. The mayor may remove, with the consent of the city council, a majority of the members elected thereto concurring, any member of such board for incompetency or official misconduct. [99 v. 441, § 2. Sec. 4055. [Organization of board.] After appointment and qualification, the board of park commissioners shall elect one of its members president and another vice president, who, in the absence or disability of the president, shall perform his duties and exercise his powers. The board shall make its own rules, but its meetings shall be open to the public and al) questions acted upon shall be decided by a yea and nay vote’ with the name of each member voting recorded on the jour- nal. No question shall be decided unless approved by a ma- jority of the board. [99 v. 441, §3.] (1) Provision mandatory.— journal is mandatory. Henderson v. The provision of this section requir- Cincinnati, 81 O, S. 27. ing yea and nay vote entered on the Sec. 4056. [Disbursements, how made.] All disbursements of money shall be made by the treasurer of the city upon war- rants drawn by the auditor and no warrant shall be drawn by the city auditor or paid by the treasurer unless approved and attested by the signatures, in their own handwriting, of the president and secretary of the board of park commissioners. [99 v. 441, §3.] Sec. 4057. [Control and management of parks.] The board of park commissioners shall have the control and management of parks, park entrances, parkways, boulevards and connect- ing viaducts and subways, children’s playgrounds,' publie baths and stations of public comfort located in such parks, of all improvements thereon and the acquisition, construction, repair and maintenance thereof. The board shall exercise exclusively all the powers and perform all the duties, in regard to such property, vested in and imposed upon the director of public service. [99 v. 441, §4.] (1) Park commission may in- purchase gifts. Op. Atty. Gen. stall Christmas tree in play- (1917), p. 56. grounds, when; no authority to Powers and duties. See Op. Atty. Gen., March 9, 1921. § 4058 THE OHIO MUNICIPAL CODE. 554 Sec. 4058. [Expenditure of moneys.] The board shall have thé expenditure of all moneys appropriated by the city council or received from any other source whatever, for the purchase, acquisition, improvement, maintenance, equipment or enjoy- ment of all such property, but no liability shall be incurred or expenditure made unless the money required therefor is in the treasury to the credit of the park fund and not appro- priated for any other purpose. [99 v. 441, § 4.] Sec. 4059. [Rules and regulations.] The board may adopt and enforce regulations! as to the proper use and protection of all such property and the improvements thereon and impose penalties for the violation of such regulations. [99 v. 441, § 4. (1) Park commissioners cannot closures upon public park grounds. grant permission to baseball play- Op. Atty. Gen. (1915), p. 306. ers to charge admission fee to en- Sec. 4060. [Establishment and extension.] The board may establish or extend parks, parkways, boulevards and con- necting viaducts and subways, public comfort stations and children’s playgrounds and public baths located in such parks, within such city or the territory contiguous to such city, and acquire or appropriate,! in the manner provided by law, the necessary real estate for such purposes, and in the same man- ner, to appropriate for parkway or boulevard purposes, any street, avenue or public way of such city. [99 v. 441, §4.] (1) Right to appropriate prop- erty in adjoining municipality. — See note to Sec. 3678, ante. Sec. 4061. [Employes.]' The board may employ a secre- tary, general superintendent, engineer, clerks and such other necessary employes for carrying into effect the purposes of its creation, and shall fix the rate of compensation and term of service of its employes. [99 v. 441, § 4.] () Board of Park Commissioners _ officers. See Op. Atty. Gen. (1922), without authority to appoint police p. 438. Sec. 4062. [‘‘The park fund.’’] All moneys received by the city from taxation or otherwise for the purpose of acquir- 555 PARKS. § 4063 ing, constructing, equipping and maintaining parks, park en- trances, parkways, boulevards and connecting viaducts and subways, children’s playgrounds, public baths and stations of public comfort located in such parks, shall be deposited in the city treasury and transferred by warrants on the city auditor to the credit of the board of park commissioners in a fund designated as ‘‘the park fund.’’ All expenditures in- curred by such board shall be by warrant of the city auditor drawn in pursuance of the regularly authorized attested voucher of such board of park commissioners. [99 v. 441, § 5. ] Sec. 4063. [Contracts, how let.] In the letting of con- tracts, the board of park commissioners shall be governed by the same laws as govern the letting of contracts by the di- rector of public service.t [99 v. 441, §5.] (1) See § 4328, post, and see Op. Atty. Gen. (1915), p. 425. Sec. 4064. [Bond issue; vote for.] When the board of park commissioners deems it necessary to issue bonds or to levy a tax for the purposc of carrying into effect the powers herein conferred, the board shall by written resolution so declare its judgment and state therein the amount of bonds to be issued or the tax to be levied for such purposes and trans- mit the resolution to the city council. If the council fails to enact legislation for the issuance of such bonds or the levying of such tax, within ninety days after the time the resolution was received by the council, the question of the issuance of the bonds or the levy of the tax shall be submitted to a vote of the qualified electors of the city, and the board of park com- missioners shall file the resolution and request with the board of deputy state supervisors of elections of the county. Such board of deputy state supervisors shall then submit the ques- tion of the issuance of such bonds or the levying of such tax, or both, to the qualified voters of the city, at either a special or general election as the resolution and request may specify, to be held in the manner provided by law for voting on the question of the issue of bonds in excess of the limit fixed by law, except as otherwise provided herein. [99 v. 442, § 6.] § 4065 (1) Object of section.—The ob- ject of this section was to provide for the contingency of a difference of views between the park commis- sion and the council respecting the proposed issue of bonds for park purposes within the limit of four per cent. of the taxable value of the property of the city. The ma- jority vote was not intended as a substitute for the two-thirds vote required by § 3939 et seq., but was only to be substituted for a favorable action of the city council when it refuses to act favorably THE OHIO MUNICIPAL CODE. 556 upon the recommendation of the park commission. .. Henderson vy. Cincinnati, 81 O. S. 27; Cincin- nati v. Puchta, Mayor, 94 O. S. 433. Effect on other bond acts.— This section does not either ex- pressly or by implication, amend former legislation restricting the bond issues of municipalities. It does not amend or modify the pro- visions of § 3939 et seq. of the Gen- eral Code. Henderson v. Cincinnati, 81.0. 8. 27. Sec. 4065. [Duty of council after vote is taken.] If a ma- jority of the electors voting on such question vote in favor thereof, it shall become the duty of the council of the city to enact, within ninety days thereafter, all legislation necessary to carry into effect the wiil of the majority of the voters at such election. [99 v. 442, § 6.] Sec. 4065-1. [Cities, villages and counties may maintain and operate playgrounds, gymnasiums, public baths, recrea- tion centers.] That the council or other legislative authority of any city, village, or the county commissioners of any county, may designate and set apart for use as playgrounds, playfields, gymnasiums, public baths, swimming pools, or in- door recreation centers, any lands or buildings owned by any such city, village or county, and not dedicated or devoted to other public use. Such city, village or county may, in such manner as may be authorized or provided by law for the ac- quisition of land or buildings* for public purposes in such city, village or county, acquire lands or buildings therein for use as playgrounds, playfields, gymnasiums, public baths, swim- ming pools or indoor recreation centers. [109 v. 609.] (1) Acquisition of property for See Op. Atty. recreation purposes. Gen. (1922), p. 1082. Sec. 4065-2. [Supervision and maintenance vested in whom; employment of leaders, etc.] The authority to supervise and maintain playgrounds, playfields, gymnasiums, publie baths, 557 PARKS. § 4065-3 swimming pools, or indoor recreation centers, may be vested in any existing body or board, or in a recreation board, as the city or village council or the county commissioners shall determine. The local authorities of any such city, village or county, may equip, operate and maintain, the playgrounds, playfields, gymnasiums, swimming pools, public baths or in- door recreation centers, as authorized by this act. Such local authorities may, for the purpose of carrying out the pro- visions of this act, employ play leaders, recreation directors, supervisors, superintendents or any other officers or employes as they may deem proper. [109 v. 609.] Sec. 4065-3.. [Recreation board, powers and duties; va- cancy.] If the city or village council shall determine that the power to equip, operate, and maintain playgrounds, play- fields, gymnasiums, public baths, swimming pools, or recrea- tion centers, shall be exercised by a recreation board, they may establish in said city or village, such recreation board which shall possess all the powers and be subject to all the responsibilities of the respective local authorities under this act. Such board when established shall consist of five persons, and two of the members shall be members of the board of education of the city or village school district. The board shall be appointed by the mayor of such city or village, and shall serve for terms of five years, or until their successors are appointed, except that the members of such board first appointed shall be appointed for such terms that the term of one member shall expire annually thereafter. Members of such board shall serve without pay. Vacancies in such board, occurring otherwise than by expiration of term, shall be for the unexpired term and shall be filled in the same manner as original appointments. [109 v. 609.] Sec. 4065-4. [Organization of board.] The members of a recreation board established pursuant to this act shall elect their own chairman and secretary, and select all other neces- Sary officers to serve for a period of one year, and may em- ploy such persons as may be needed. As authorized by this act, such board shall have power to adopt rules and regula- tions for the conduct of all business within its jurisdiction. [109 v. 609.] § 4065-5 THE OHIO MUNICIPAL CODE. 558 Sec. 4065-5. [Joint acquisition and maintenance.] Any two or more cities or villages, or any city or village, or any city or village and county, may jointly acquire property for and operate and maintain any playgrounds, playfields, gymna- siums, public baths, swimming pools, or indoor recreation cen- ters. Any school district shall have power to join with any city, village or county, in equipping, operating and maintain- ing playgrounds, playfields, gymnasiums, public baths, swim- ming pools, and indoor recreation centers, and may appro- priate money therefor. [109 v. 609.] Sec. 4065-6. [Bond issue authorized.] The city or village council, or the county commissioners, may issue bonds for the purpose of acquiring lands or buildings for playgrounds, play- fields, gymnasiums, swimming pools, public baths, or indoor recreation centers, and for the equipment thereof. [109 v. 609. | Sec. 4065-7. [How expense paid.] All expenses incurred in the operation of such playgrounds, playfields, gymnasiums, swimming pools, public baths, and indoor recreation centers, established as herein provided, shall be payable from the treasury of such city, village, county or school district. The local authorities of such city, village, county or school dis- trict, having power to appropriate money therein, may annu- ally appropriate and cause to be raised by taxation an amount for the purpose of maintaining and operating playgrounds, playfields, gymnasiums, public baths, swimming pools and recreation centers. [109 v. 609.] TRUSTEES OF PARK FUNDS. Sec. 4066. [Care of property donated for park purposes.] In any municipal corporation which has become or may here- after become the owner or trustee of property for park pur- poses, or of funds to be used in connection therewith, by deed of gift, devise or bequest, such property or funds shall be managed and administered in accordance with the provisions or conditions of such deed of gift, devise or bequest. [96 v. 92, § 220.] 559 PARKS. § 4067 Sec. 4067. [Board of park trustees for donated property. ] When such deed of gift, devise or bequest requires the in- vestment, or change of investment of the principal of such property or funds, or any part thereof, to be made upon the approval of an advisory committee appointed by a court or judge, or by an advisory committee appointed by a civic or- ganization of the municipality, or by the council of such municipality, then such property or funds, and any park for the improvement of which in whole or in part such fund is to be used, or any property for the care or management of which in whole or in part such fund is used, shall be man- aged, controlled and administered by a board of park trus- wees? (LO we 161 3:96 -vs92,- $220.) Sec. 4068. [Appointment and term; vacancies.] The board of park trustees shall consist of four resident electors of the municipal corporation, who shall be appointed by the trustees of the sinking fund, and shall serve without compensation for the term of four years and until their successors are appointed and qualified. The park trustees shall be appointed in the first instance to serve for one, two, three and four years respectively, and thereafter their successors shall be ap- pointed one each year to serve for the term of four years, but not more than two shall be of the same political party. Va- cancy in the board by death, resignation or otherwise shall be filled in like manner for the remainder of the term. [96 v. 92, § 220. ] Sec. 4069. [Powers and duties.] The board of trustees Shall have the right to apply, control or invest and re-invest the funds coming or arising from such gift, devise or bequest according to the terms and conditions on which acquired. [96 v. 92, § 220.] Sec. 4070. [Compensation, oath, bond.] The members of the board of park trustees shall serve without compensation. Before entering upon the discharge of their duties, they shall each take the oath of office prescribed by law, and give bond in the sum of twenty-five hundred dollars, conditioned accord- § 4071 THE OHIO MUNICIPAL CODE. 560 ing to law, and to the approval of the mayor and council of the municipality. [93 v. 463, §3; Bates 2515-389 (1536-944). ] Sec. 4071. [Meetings, rules and regulations.] The board of park trustees shall hold meetings at least once a month, and shall adopt necessary rules for the regulation of its business. It shall keep a complete record of its proceedings, which record, or a copy thereof, duly certified by the clerk of the board, shall be competent evidence of its transactions in the courts of this state. The yeas and nays shall be called upon the passage of every resolution or order. Three members of the board shall constitute a quorum for the transaction of business, but no resolution or order shall be adopted unless three members vote in its favor. The auditor or clerk, as the case may be, shall act as the clerk of the board of park trus- tees, but shall receive no additional salary or compensation for such services. [938 v. 463, § 4; Bates 2515-40 (1536-945).] Sec. 4072. [Powers of board.] Such trustees shall have the entire management and control of such property or funds, all improvements of every nature within such park or parks, moneys derived from levies made for park purposes, moneys from the general fund appropriated by the council for such purposes, proceeds of bonds issued or sold for park purposes, and of moneys or other property donated to any such munici- pality for park purposes, and of all other park property le- gally acquired; all of which moneys shall be placed in a special fund ealled the ‘‘park fund,’’ and shall be dis- bursed by the treasurer of any such city or village, only upon a warrant of the auditor or clerk, drawn in accordance with the order of the board of park trustees. . Such trustees shall have the control and management of parks, park entrances, parkways, boulevards and connecting viaducts and subways, children’s playgrounds, public baths and stations of public comfort located in such parks, of all improvements thereon and the acquisition, construction, re- pair and maintenance thereof. The board shall exercise ex- clusively all the powers and perform all the duties in regard to such property, vested in and imposed upon the director of 561 PARKS. _ § 4073 public service. [103 v. 511; 93 v. 463, §5; Bates, 2515-41 (1536-946). | Sec. 4073. [Contracts, rules and regulations.] The trus- tees may make contracts for the improvements of the grounds, the erection of the necessary bridges and structures therein, and adopt rules for the protection, care and government of the parks under its charge, and such rules, when approved by the council shall have the same’ effect and may be enforced by the same penalties as ordinances. [93 v. 464, §6; Bates 2515-42 (1536-947). ] Sec. 4074. [Power to incur liability.] The trustees shall not, incur any liability for park purposes beyond the amount of the funds levied therefor or appropriated to their order by . the council for such purposes. [93 v. 464, §7; Bates 2515-43 (1536-948). ] Sec. 4075. [Employes.] The board may employ such su- perintendents, landscape gardeners and other employes as it deems necessary for the execution of its duties, and fix their salaries or compensation. Any such persons may be removed by the board at any time. [98 v. 464, §8; Bates 2515-44 (1536-949). ] Sec. 4076. [Control of improvement of natural water- courses.] The board shall have entire management and con- trol of all work of straightening, cleaning, deepening, or otherwise improving any natural watercourse, whether partly or wholly used for sewer purposes or not, within such city, and may purchase, acquire or condemn any water rights, ease- ments or privileges in connection with any natural water- course through such city, and may acquire or condemn such real estate necessary for such purposes. [94.v. 717, §5; Bates 2515-45e (1536-951). | Sec. 4077. [When bids shall be required.] Before entering into any contract for the performance of any work, the cost of which exceeds one thousand dollars, the board shall cause plans and specifications and forms of bids to be prepared and when adopted by the board, it shall have them printed for § 4078 THE OHIO MUNICIPAL CODE. 562 distribution among bidders. [94 v. 718, §6; Bates 2515-47! (1586-952).] Sec. 4078. [Notice for proposals.] The board shall not enter into any contract for work or supplies where the esti- mated cost thereof exceeds one thousand dollars, without first causing thirty days’ notice in one newspaper of general cir- culation in the corporation that sealed proposals may be re- ceived for doing the work or furnishing such materials and supplies. [94 v. 718, §7; Bates 2515-45¢ (1536-953). ] Sec. 4079. [Bond to accompany bids.] Each bid shall be accompanied by a bond, signed by sufficient security, for the acceptance of the contract, if awarded by the board. [94 v. 718, §8; Bates 2515-45h (1536-954).] Sec. 4080. [Bids shall be under seal.] Bids for work and supplies shall be enclosed in a sealed envelope and deposited with the clerk of the board, and such envelope shall have en- dorsed thereon the nature of the bid, and all bids shall be opened at a regular meeting of the board. [94 v. 718, §9; Bates 2515-451 (1536-955).] Sec. 4081. [Awarding contracts.] The board shall enter into contract with the lowest responsible bidder, upon his giving bond to the corporation with sureties as the board ap- proves, that he will perform the work or furnish the material and supplies in accordance with his contract, and the board shall be the final judges as to who are the responsible bidders. On the failure of such bidder, within a reasonable time, to be fixed by the board, to so enter into bond with surety, the con- tract may be made with the next highest responsible bidder, and so on until the contract is effected by the contractor giving bond. The board may reject any and all bids, and no member thereof shall be in any manner either directly or indirectly interested in any contract. [94 v. 718, §10; Bates 2515-45) (1536-956). ] Sec. 4082. [Reports and estimates.] On the first Monday of January each year, the board of park trustees shall make le a ~~ a be a ae Se 563 PARKS. § 4082-1 a written report to the council of its proceedings, with a detailed statement of its receipts and expenditures during the year. And they shall also at the proper time submit to the council a detailed estimate of the amount of money necessary to maintain and improve such park or parks for the ensuing year, and to dredge, straighten, clean, deepen, and otherwise improve such watercourses and purchase and acquire suc water rights, easements and privileges. [93 v. 464, §9; 94 v. 718, §11; Bates 2515-45k (1536-757). | Sec. 4082-1. [Joint use of fair grounds.] Any real estate controlled and managed by any agricultural society organized under the laws of Ohio, pertaining to agricultural societies, whether owned by it or by any county, or jointly by it and any county and which is situated within, adjacent or near any municipal corporation and used as a site for fairs, may be jointly used as such site for fairs and also as a public park of such municipal corporation, although the title thereto shall remain in such agricultural society or county, or both such agricultural society and such county as the case may be. [102 v. 458. | Sec. 4082-2. [Agreement.] The duration of such joint use and all the terms and conditions thereof shall be such as may be agreed upon between such municipal corporation and such agricultural society or if such county has any interest in such real estate then such agreement shall be made between such municipal corporation on the one hand and such agricultural society and such county -acting through its board of county commissioners. [102 v. 459. | Sec. 4082-3. [Powers of municipality.] Such municipal corporation shall have the same authority and power to im- prove, equip and maintain such real estate as a public park and to do all things necessary for its use and enjoyment as such public park which it has under the laws of Ohio as to parks owned by it in fee. [102 v. 459.] § 4083 THE OHIO MUNICIPAL CODE. 564 CHAPTER 6. CHILDREN’S HOMES. Sec. 4083. [Powers of trustees and managers.] In cities where children’s homes or industrial schools are established under the incorporation law of the state, the trustees and managers of such institutions may take under their guardian- ship all children placed under their care and management in either of the following modes: First—Children under sixteen years of age, who are volun- tarily surrendered by the father and mother, or in case of the death or long continued or wilful absence of the father, by the mother, or by their guardians, to the care of such trustees and managers, they being by virtue of such surrender invested with the same power over the persons of the children as the parents or guardians. Second—Children under sixteen years of age who are com- mitted to their care by the juvenile court. [103 v. 895; R. S. Sec. 2181; 99 v. 190; 63 v. 51, §1; 8. & S. 726.] (1)Power of state to exercise ble to take care of them, see State vy. reasonable restraint over incorrigi- Stiles, 12 Dec. 338. ble children when parents are una- Sec. 4084. [May act as guardian of children, and procure them homes.] The trustees and managers shall have the guardianship of such children during their minority. and, when it seems proper, may place them in suitable homes, hav- ing scrupulous regard to the religious and moral character of the persons with whom such children are placed, in order to secure to them the benefits of good example and wholesome instruction, and the opportunity of becoming intelligent and useful men and women. [R. S. Sec. 2182; 63 v. 51, § 2.] Sec. 4085. [May indenture children.] The trustees and managers shall require an agreement to be entered into, that ee ee ee ee ee? ee St ee —— A! | ; a 565 CHILDREN’S HOMES. § 4086 each and every child so placed shall be furnished with good and sufficient food and clothing and a suitable common school education. Such agreement shall be in a form to be pre- scribed by the board of state charities. [103 v. 895; R. S. See. 2183; 99 v. 190; 63 v. 51, §3.] Sec. 4086. [What records shall be kept.] Such trustees and managers shall provide themselves with records, in which shall be entered the age, parentage, place of residence, and present condition of every child receivec in any such chil- dren’s home, or industrial school. They shall also cause to be entered in such records the time when, the place where, and the person to whom any of the inmates of such children’s home or industrial school have been placed for suitable homes, together with a substantial statement of any contract made between such trustees and managers, and the persons receiv- ing such child. [103 v. 895; R. S. Sec. 2183; 99 v. 190; 63 v. 51, § 3.] Sec. 4087. [Cancellation of contract.] If a person so tak- 'ing charge of a child, desires to be released from the con- tract, the trustees and managers, upon application, may can- cel it, and resume the charge and management of the child, and shall have the same power and authority over him as before the agreement was made. [103 v. 895; R. S. See. 2184; 63 v. 51, § 4.] Sec. 4088. [Trustees may remove children from unsuitable homes.] The trustees and managers may remove a child from a home, when, in their judgment, it has become an un- suitable one. In such cases, they shall resume the same power and authority as they originally possessed, but they may return a child to parents or a surviving parent or guardian, or when they believe the child to be capable of caring and providing for himself, may discharge him to his own care. They shall have the same power respecting such children and be subject to the same obligations as provided in the ease of county children’s homes by sections 3098, 3099, 3100, 3101, 3102 and 3103 of the General Code. [108 v. 895; R. S. Sec. 2185; 63 v. 51, §5.] § 4089 THE OHIO MUNICIPAL CODE. 566 GHAPTER 7. INFIRMARIES. Sec. 4089. [Management and control.] The management of the affairs of corporation infirmaries and the care of the inmates thereof, the erection and enlargement of infirmary buildings and additions thereto, the repair and furnishing thereof, the improvement of the grounds therewith connected, and the granting of out-door relief to the poor, shall be vested in the director of public safety... [R. 8. See. 2168; 80 v. 46; 77 v. 16; 72 v. 76.] (1) Management is given to di- rector of public safety by § 4370, post. Management in § 4356, post. Other provisions, see generally, title “Charitable and Reformatory Institutions” in Part II. villages, see Accounting officer.—The board of infirmary directors provided for under former statutes were held to be accounting officers within the meaning of § 7875 R. S. (18105 G. C.). Hauck v. State, 45 O. S. 439, Sec. 4090. [Location of infirmary or pest-house.] The in- firmary, or the pest-house of the corporation may be located either within or outside of the corporation limits, and the council may purchase and hold the necessary real estate on which to build them. (1) Pest house outside corpo- rate limits can be so located with- out the consent of the township trustees. Lorain vy. Rolling, 3 C. C. (N. 8.) 660, 24 ©. C. 82. When a nuisance, see Youngstown Township v, Youngstown, 25 ©. C. 518; Lorain y, Rolling, 24 ©. ©. 82. [R. 8. Sec. 2169; 72 v. 76.] Power to establish: pest houses and infirmaries, see § 3646, ante. Power to appropriate property for, see § 3677, ante. Power to issue bonds for, see § 3939, ante. Sec. 4091. [Regulations applicable to hospitals shall gov- ern.] In the management of an infirmary, in the care and treatment of the inmates thereof, and in the erection, en- ie 567 INFIRMARIES. § 4092 largement, or repair of any building for infirmary purposes, or of any addition thereto, the director of public safety shall have the same powers, be governed by the same regulations, and perform the same duties, as far as applicable, as are vested in him in relation to municipal hospitals. The power of the council in relation thereto, shall be the same, so far as applicable, as herein provided in relation to hospitals. [R. S. Sec. 2171; 66 v. 200. } Sec. 4092. [Care for the inmates; separation of sexes.] Such director shall see that the inmates of such infirmary are comfortably provided for and kindly treated, and, whenever deemed necessary, he may provide for the care and support of the males and females in separate buildings, or in separate departments of the same building. [R.S. See. 2172; 66 v. 200.] Sec. 4093. [Appointment of overseers of the poor.] Coun- cil shall provide by ordinance for the appointment by the director of public safety of such number of persons as is deemed necessary, not to exceed one in each ward, to act as overseers of the poor. The director shall prescribe their duties as to the care of the poor, and their removal, when necessary, to the infirmary, but such persons shall receive no compensation for their services. [R. S. Sec. 2173; 77 v. 16; (2°y. 127] Sec. 4094. [Duties in case of partial relief.] Upon com- plaint being made or information given to such director, that a person residing in the city requires public assistance or Support, the director shall inquire into the condition and necessities of such person, and if satisfied that relief ought to be granted at public expense, and that the person requires temporary or partial relief only, and that for any cause it would not be prudent to remove him to the city infirmary, the director may afford relief, at the expense of the city, with- out such removal. The director of public safety has the same power of removing paupers settled in some other county in this state which, by law, is conferred on county infirmary directors. [R. 8S. Sec. 2174; 73 v. 233.] THE OHIO MUNICIPAL CODE. § 4095 568 Sec. 4095. [Duties of director in case of no legal settle- ment.] When an infirmary is erected and established in a city for the accommodation of its poor, the director of public safety shall not require the directors of the county infirmary of the county in which such city is situated, to receive and provide for persons having no legal settlement within this state,’ or whose place of residence is unknown, or to charge the commissioners of the county with the expense of providing for such persons in the city infirmary, but he shall furnish relief and support to such persons in the city infirmary, apply- ing therefor, the same as county infirmary directors are required to do, and have like power of removing such persons as county infirmary directors have to such other city or county infirmary where such pauper’s legal settlement is. The pro- visions of this section shall only apply to counties in which there is a county and a city infirmary. [R. S. See. 2175; 13.V. 235. | year, provided there is an intention to return. Jb. (1) Legal settlement, how gained.—Residence for a year of pauper is necessary and it must be open and notorious. Henrietta Twp. v. Brownhelm Twp., 9 O. 76. But the authorities do not have By voting in another state and acquiring a legal settlement there, the former legal settlement is lost. Crane Twp. v. Antrim Twp., 12 0. to be informed; bona fide residence S. 430. is all that is necessary. Henrietta Pauper, who is.—One having Twp. v. Oxford Twp., 2 O. S. 32. credit and no property is not a pau- Residence must be accompanied per. Beach v. Marion Twp., 2 W. with the intention to make it the LL. M., 95. But one having property place of abode. Jb. elsewhere, but who is unable to sup- How lost.—Settlement is not port himself, is entitled to relief. lost by residing elsewhere for a Ib. Sec, 4096. [When there are orphan asylums in cities.] In cities in which orphan asylums are established by law, or as private institutions, the director of public safety may make such arrangements with the trustees or the person having charge of such asylums, for the support’ and education of all orphan or other children coming under his control by virtue of the laws in force at the time, as he deems proper, and shall allow such compensation as is reasonable and just, to be paid from the poor fund of the city. [R. 8. See. 2176; 51 v. 412.] 569 REFORMATORY INSTITUTIONS. § 4097 CHAPTER 8. REFORMATORY INSTITUTIONS. HOUSES OF REFUGE.! Sec. 4097. [When infants received.] The director of public safety may receive into a house of refuge infants under the age of seventeen years, lawfully committed to his custody.” [R. S. See. 2050; 66 v. 189, § 238. ] (1) Municipal power and con=- trol.—Power to establish and main- tain houses of refuge, see § 3624. ante, Power to appropriate property for, see § 3677, ante. Bonds for, see § 3939, ante. Management in cities, see § 4370, post. Management in § 4356, post. Other provisions relating +o houses of refuge, see general title “Charitable and Reformatory Insti- tutions” in Part IT. (2) How committed.—Former § 2050 R. S., provided how children should be committed to houses of refuge. ‘The provisions relating to the mode of commitment are omit- ted from the revision. As to com- mitment under present statutes, see § 1639 et seq., G. C. Validity.—As to the constitu- tionality of a statute such as this, see Prescott v. State, 19 O, S. 184; villages, sce House of Refuge v. Ryan, 37 O. S. 204. Support of infants.—Under former § 2050 R. S., it was held that infants committed to a house of refuge and correction for “incor- rigible conduct” were not committed “for offenses against a law of the State” within the meaning of § 2071 R, S. (4116 G. C.), and hence they must be supported as provided in § 2072 R. S. (4117 G. C.) and not by the county. State v. Schlat- terbeck, 39 O. S. 268. Construction.—For construction of former provisions of the Revised Statutes, see House of Refuge v. Ryan, 37 O. S. 197. In this case it was held that § 2050 R. S. pro- vided that the officer might in his discretion receive in- fants committed for incorrigible con- duct, ete., while §§ 2051 to 2053 R. S. provided for commitment of in- fants convicted of crimes and of- fenses. in charge Sec. 4098. [Infants may be confined after conviction.] An infant under the age of seventeen years, who has been so committed, may be confined in such house of refuge and cor- § 4099 THE OHIO MUNICIPAL CODE. 570 rection, under such rules and regulations as the director pre- scribes, and the director shall receive and take charge of any children so committed. [R. S. See. 2051; 67 v. 75.] Sec. 4099. [When infant may be put to hard labor.] en +o oy 597 CEMETERIES. § 4180 Sec. 4180, [Villages may tax for hearse or vault on vote of electors.] The council of a village may levy a tax in such amount as it determines, either to purchase a hearse or to construct a vault for the dead, for the use of the village. The question of levying such tax, for either or both purposes, and the amount asked therefor, shall be separately submitted to the electors of the corporation, at a general election, twenty days’ notice thereof having been previously given, by posting in at least three public places in the village. The notice shall state specifically the amount to be raised, and for what pur- pose. If a majority of all the votes cast at the election is in favor of either or both propositions, they shall be considered adopted, and the tax herein provided for authorized. The hearse and vault shall be under the control of the trustees of cemeteries of the village, where there is such board, otherwise under the control of the council, or person appointed by it. [R. 8. Sec. 2556; 75 v. 46.] Sec. 4181. [Form of ballot.] The electors voting at such election shall have placed on their ballots the words, ‘‘Tax for Hearse—Yes’’, or ‘‘Tax for Hearse—No’’, and upon the same ballot, ‘‘Tax for Vault—Yes’’, or ‘‘Tax for Vault—No’’, and may vote for one proposition and against the other, or for or against both. [R. S. See. 2557; 75 v. 46.] Sec. 4182. [Council may borrow money in anticipation of collection of tax.] When a tax for erecting a vault has been voted in a village, the council, in anticipation thereof may issue the bonds in the village in an aggregate amount not to exceed the tax voted, of denominations not less than fifty dollars, bearing interest at a rate not exceeding six per cent, payable not later than two years from the date thereof, and signed by the mayor and clerk of the village. Such bonds shall be paid from the tax so voted, and the proceeds of the sale thereof shall be used solely for the construction of such vault. [R.S. Sec. 2558; 76 v. 43.] § 4183 THE OHIO MUNICIPAL CODE. 598 UNION CEMETERIES. Sec. 4183. [Union of municipalities and townships for cem- etery purposes.] The councils of two or more municipal cor- porations, or of such corporation or corporations, and the trustees of a township or townships, when conveniently lo- cated for that purpose, may unite in the establishment and management of a cemetery, by the purchase or appropriation of land therefor, not exceeding in extent one hundred acres, to be paid for as hereinafter provided. [R. S. Sec. 2532; 68 vi"ld, ‘S1i; G6 yee212,°4°377, | Sec. 4184. [Cemetery trustees, biennial election of.] Re- pealed, 103 vy. 272. Sec. 4185. [Organization of union board of trustees.] Re- pealed, 108 v. 272. Sec. 4186. [How appropriations shall be made.] When an appropriation of land for such purpose becomes necessary, it shall be made by the municipal corporation, or if there be more than one such corporation, then by the one having the largest number of inhabitants at the last federal census, which corporation, in making the appropriation, shall act for itself and any other corporation or township uniting with it, and the proceedings therefor shall be the same as required in this title where the appropriation is to be made for the use of the corporation alone. [R. S. See. 2534; 66 v. 212, § 378.] Sec. 4187. [Titles, how vested.] The title to such cemetery grounds, whether by purchase or otherwise, shall vest in and be held by the corporation making the appropriation, in trust for the use of its inhabitants and the inhabitants of the other corporations or townships in common, and provision shall be made for the interment in such cemetery of all persons buried at the expense of the corporation or townships. [R. S. See. 2535; 66 v. 212, § 379.] Sec. 4188. [Expense, how proportioned.] The expense of the purchase, or of the proceedings in case of appropriation, 599 CEMETERIES. § 4189 and the damages awarded, or both, shall be borne by the corporations and townships in proportion to the property of each on the duplicate for taxation. The amount of bonds issued by each in any case, for such cemetery purposes, shall be in the same proportion, and the percentage of taxation for all such cemetery purposes shall be the same in the corporations and townships, but moneys in the hands of the trustees of the cemetery, derived from any source, not needed to keep in order or embellish the grounds, by resolution of the council and trustees of the municipalities and townships interested, may be applied to the expenses of purchase, or appropriation and damages awarded, or both, in securing additional lands for the cemetery. [R.S. Sec. 25386; 99 v. 70; 66 v. 212, § 380.] Sec. 4189. [Control and management.]' The cemetery so owned in common, shall be under the control and manage- ment of the trustees of the township or townships and the council of the municipal corporation or corporations and their authority over it and their duties in relation thereto shall be the same as where the cemetery is the exclusive prop- erty of a single corporation. [103 v. 272; R. S. Sec. 2537; 66 v. 212, § 381.] (1) Management of cemetery— municipality and township; how When jointly owned and main- managed. Op. Atty. Gen. (1915), tained by two municipalities or by pp. 1506, 2008. Sec. 4190. [Power to enforce ordinances.] The council of a municipality so owning a cemetery in common with any other municipality, or township, may pass and enforce all ordinances necessary to carry into effect the provisions herein contained, and such as are deemed necessary for the preserva- tion and regulation of the cemetery and the protection thereof, and for the punishment of any person violating the ordi- nances, rules and regulations, relating to the cemetery. The mayor and police officers of the corporation shall have full and complete jurisdiction and authority to enforce all ordi- nances, rules, and regulations, as if the cemetery grounds were located within or owned exclusively by the corporation. [R. S. See. 2538; 66 v. 212, § 382.] § 4191 THE OHIO MUNICIPAL CODE. 600 Sec. 4191. [Discrimination forbidden.]° No distinction or discrimination of any kind shall be made by the trustees of the cemetery owned in common, in favor of one corporation against another, or in favor of a corporation against a town- ship, or in favor of a township against a corporation, but the affairs of the cemetery shall in all respects be managed as though it were owned and governed in the interests of the corporation or township alone. [R. 8. See. 25389; 66 v. 213, § 383. ] Sec. 4192. [Joint meeting of council and trustees.] In case of a union for cemetery purposes between a municipal cor- poration and a township, the council of the corporation and the trustees of the township shall have a joint meeting at the council-chamber of the corporation, on the day of the first regular meeting of the council in the month of May of each year, for the purpose of determining the rate of tax to be levied upon the taxable property of the corporation and the township for the purposes herein required. Upon the passage of a joint resolution by a majority of the members of the council and the trustees, fixing the rate of taxation, the clerk of the corporation shall certify such rate to the auditor of the county for assessment and collection. If there is more thau one municipal corporation or township united for such pur- poses, the councils and trustees of the townships shall become such joint body with the same powers as if there had been one such corporation and township, and the clerk of the corpora- tion containing the greatest number of inhabitants shall certify to the auditor as above provided, the rate of taxation. [R. S. Sec. 2540; 66 v. 213, § 384.] Sec, 4193. [Joint meetings to make rules.] The trustees of such township or townships, or the council or councils of such municipal corporation or corporations may at any time call a joint meeting of the council or councils and the trus- tees of the township or townships, on a reasonable notice given by either, for the purpose of making joint rules and regulations for the government of the cemetery, or changing them, and making such orders as may be found necessary for 601 CEMETERIES. § 4193-1 the application of moneys arising from the sale of lots, taxes, or otherwise. [R. S. Sec. 2541; 66 v. 213, § 385. ] Sec. 4193-1. [Election of cemetery trustees; qualifications of members; powers and duties; vacancies.] At any such joint meeting or at the joint meeting provided for by sec- tion 4192 of the General Code, by a majority vote of all present counting council members and trustees, such meeting may elect a board of cemetery trustees consisting of three members, of which one or more must be a member of each of the separate boards of township trustees and municipal coun- cils comprised in the union cemetery association represented by such joint meeting. Such board of cemetery trustees so elected, shall have all the powers and perform all the duties exercised and performed by directors of public service of municipalities under sections 4161 and 4168 inclusive of the General Code, and such board of cemetery trustees shall to- gether with other powers herein granted have the power to ereate a permanent endowment fund for the express purpose of keeping such cemetery clean and in good order and may add to the price regularly charged for lots therein a sum for said purpose or may receive gifts for said purpose or may enter into separate agreements with the purchasers of such lots whereby an agreed part of the purchase price of said lot or lots shall be and constitute a permanent fund, or may re- ceive individual gifts for said fund, the income thereof to be used for the upkeep and care of such lot or lots, and when any such fund or funds shall have been received or created the same shall be a permanent fund for such use and the in- come therefrom shall be used for the said purpose and for no other purpose and the principal sum shall be kept and invested under the same terms and conditions fixed by law for the investment of the funds of a minor by his guardian. At the first election of such board of cemetery trustees, one shall be chosen for one year, one for two years and one for three years, together with such part of a year as may inter- vene between the time of such election and the first day of January next thereafter. Yearly thereafter at the joint meeting held in May one trustee shall be chosen for three years commencing on the first day of January next there- § 4194 THE OHIO MUNICIPAL CODE. 602 after. Any regular or regularly called joint meeting of the township trustees and municipal council may fill vacancies occurring on the board of cemetery trustees by a majority vote of the members present, such election to be for the un- expired term. Any member of such board of county trustees may be removed by such joint meeting on a two-thirds vote of all members entitled to sit in such joint meeting, for misfeas- ance or malfeasance in office, any gross neglect of duty or gross immorality, but no member shall be so removed until he shall have had at least ten days’ notice in writing, to- gether with a copy of the charges against him, and shall have had opportunity to appear and defend himself either in person or by counsel. [108 v. 1179; 106 v. 345.] Sec. 4194. [Vote and record thereof.] In joint meetings, each member of the councils and each of the trustees shall have one vote in determining all questions. The proceedings of joint meetings shall be recorded by the clerk of the cor- poration having the greatest number of inhabitants. [R. S. Sec. 2542; 66 v. 213, § 386.] Sec. 4195. [Adjoining townships may be admitted to par- ticipation.] A township adjoining one in which such union cemetery is established may, by the consent of the trustees of the latter township and of the council or councils of the corporation, be admitted to an equal participation with the inhabitants thereof in the rights and privileges in the ceme- tery, upon such terms as may be mutually agreed upon, but the title and control of the cemetery shall continue vested in the corporation. [R. S. See. 2543; 80 v. 6; 66 v. 214, § 390.] Sec. 4196. “[Municipal corporation or township may with- draw.] A municipal corporation or township united with an- other municipal corporation or township, or both, in the establishment or control of a union cemetery, may by a reso- lution of the council of the corporation or of the trustees of the township and with the consent of the ecouneil of the remaining corporation and trustees of the remaining township or townships, withdraw from the management and control of a ee ee ee. 603 CEMETERIES. § 4197 such cemetery, and relinquish the interest of such corporation or township therein, and thereupon the cemetery shall be under the management and control of the remaining corpora- tion and township, or corporations and townships. [R. S. Sec. 2543; 80 v. 6; 66 v. 214, § 390.] Sec. 4197. [Public burial ground may be appropriated. ] In the establishment of a union cemetery, a municipality and a township may make use of a public burial ground or ceme- tery ground which may be held by the municipality, or town- ship, and may make use of any land which the municipality, or township, may have acquired by dedication, gift, or devise for burial’purposes. [R. 8S. See. 2544; 66 v. 213, § 387.] Sec. 4198. [Purchase of lands; improvements.] The coun- cil of a municipality, and the trustees of a township, may purchase of an incorporated cemetery association the lands, lots, and improvements of such cemetery association remain- ing unsold, for cemetery purposes, and take a conveyance thereof, but the purchase money in such cases shall be applied to the payment of the legal debts of the association, and to the embellishment and preservation of the land purchased, and such other purposes as the trustees of the cemetery may direct. [R. S. See. 2545; 66 v. 213, § 388.] Sec. 4199. [Municipality or township may transfer ceme- tery property to cemetery association.] The council of a mu- nicipality, and the trustees of a township, may transfer to an incorporated cemetery association, the lands, lots and im- provements of a cemetery, owned and controlled by the municipality or township for cemetery purposes. The ceme- tery association shall assume all legal debts on the cemeteries so transferred. [R. S. Sec. 2545a; 97 v. 165.] Sec. 4200. [Rights and titles inviolate.] The rights and titles of lot owners, purchased prior to such sale and convey- ance, shall not be questioned, and such lot owners shall con- tinue to hold and occupy their lots, under such rules and regulations as shall be adopted for the government and regu- § 4201 THE OHIO MUNICIPAL CODE. 604 lation of the cemetery by the authorities making the purchase. [R. S. Sec. 2546; 66 v. 214, § 389.] Sec. 4201. [Clerk shall record plat of ground.] The clerk of the corporation shall record in a book provided for that purpose, a plat of all grounds for cemetery purposes laid out into avenues, walks, paths, and lots, and he shall execute to the purchasers of lots such conveyances as may be neces- sary to carry into effect the contracts of sale. The convey- ance shall, at the expense of the person receiving it, be recorded in a book to be kept for that purpose, by the clerk of the corporation. [R. S. See. 2547; 66 v. 214, § 391.] APPROACHES. Sec. 4202. [How secured.] The officers having control and management of a public cemetery, acting under the provisions of this chapter may acquire property, in the judgment of a majority of them, necessary for a better approach thereto. No lot or parcel of land or part thereof upon which a dwelling house is situated shall be so appropriated. Such property may be acquired by gift, purchase, appropriation, or by ex- change therefor of property of the cemetery used for an approach thereto and in the judgment of a majority of such officers rendered unnecessary by such new approach. [99 v. 522, §1.] Sec. 4203. [Conveyances.] The title to property so ac- quired shall vest in the township or corporation owning the cemetery. The officers making such exchange shall execute, in the name of the township or corporation, conveyances of the property so exchanged. No property shall be so acquired by purchase or appropriation unless the money necessary to pay for it is in the cemetery fund. No land so acquired may be used for burial purposes nor be subject to statutory re- strictions against the appropriation and use of property for cemetery purposes. [99 v. 522, §1.] Sec, 4204. [Sale of old approach.] Land belonging to such cemetery used for an approach thereto and in the judgment 605 CEMETERIES. § 4205 of a majority of such officers unnecessary for cemetery pur- poses may be sold by them at public sale to the highest bidder, after advertisement once a week for five consecutive weeks in a newspaper of general circulation within the county in which the cemetery is situated. Township or cemetery trustees making such sale shall execute in the name of the township or corporation owning the cemetery proper conveyances of the land so sold. [99 v. 522, § 2.] Sec. 4205. [Appropriation of property.] When such of- ficers deem it necessary to appropriate property for a new and better approach to the cemetery and have passed a reso- lution declaring the necessity thereof and their intention to make it, they shall make application to the court of common pleas or to a judge thereof in vacation, to the probate court or to the insolvency court in the county in which the property is located, in the manner and the proceedings therefor shall be conducted as prescribed by law for appropriation of prop- erty by municipal corporations. [99 v. 523, § 3.] § 4205-1 THE OHIO MUNICIPAL CODE. 606 CHAPTER 10.’ MUNICIPAL PAWN DEPARTMENT. Sec. 4205-1. [Municipal pawn shop; petition; vote; notice of election.] That every city of this state shall have the power to establish, manage, regulate and maintain a municipal pawn department within its corporate limits, to loan money upon personal property and to charge interest for advances made on pawns, and to acquire by purchase, lease or otherwise the necessary lands, buildings, halls or rooms for such purpose and to do everything that pertains to or has any connection with the establishment, management, regulation and mainte- nance of such department. ‘‘But if, within thirty days after the passage of an ordinance establishing such department, there is presented to the city council or filed with its clerk, a written petition signed by fifteen per cent. of the qualified electors of such municipality, to be determined by the highest number of votes cast for the mayor of the municipality at the last preceding municipal election, requesting such ordinance to be submitted to a vote of the electors thereof, the ordinance shall not become operative until it has been so submitted and has received a majority of the votes cast thereon. The council by resolution shall provide that such vote be taken at the next municipal election, and shall cause a copy of such resolution to be certified to the board of deputy state supervisors of the county in which such municipal corporation is situated, which board shall thereupon prepare the ballots and make all other necessary arrangements for the submis- sion of such question at the time fixed in the resolution. Such election shall be held at the regular place or places of voting in such municipality and shall be conducted, canvassed and certified in the same manner as the election of officers thereof. Thirty days’ notice of such submission shall be given by the mayor of the municipality in two newspapers of opposite polities printed therein, once a week for four consecutive ae - 607 MUNICIPAL PAWN DEPARTMENT. § 4502-2 weeks, stating the object and purpose, and the time and place of holding such election. Those voting in favor of the propo- sition shall have written or printed on their ballots the words ‘“‘Hor the establishment of a municipal pawn department,’’ and those voting against it shall have written or printed on their ballots the words ‘‘Against the establishment of a mu- nicipal pawn department.”’ (1) Chapter number.—While the section of the act of March 30, 1911, providing for municipal pawn department, (§$§ 4205-1 to 4205-21) were renumbered by the Attorney General, and so numbered as to give Sec. 4205-2. [Pawn fund.] [102 v. 65.] them a position in Title XII, imme- diately after the sections relating to cemeteries, no new chapter number or heading was provided. The chap- ter number and heading above have been supplied by the editor. To create a municipal pawn fund out of which all municipal money loans upon personal property to pawners are paid and to receive donations and bequests of money or property for the same, in trust or other- wise. [102 v. 66.] Sec. 4205-3. [Tax levy.] The council of each city shall for the purpose of creating and maintaining the said municipal pawn fund, have the power to levy and collect a tax not ex- ceeding one-fifth of one mill on each dollar of the taxable property within the municipality, annually, and until said municipal pawn department becomes self-supporting. The municipal pawn fund so created and the moneys in the future from all sources received by said department for the said fund shall be turned over to the city treasurer, who, upon giving bond, as required by the city council, shall be the custodian and disburser of the same as of all other funds and public moneys. But he shall not honor any voucher presented to him for payment from said fund unless the same is properly approved by the head of such municipal pawn department. [102 v. 66.] Sec, 4205-4. Every municipal.pawn department of a city in this state shall be a sub-department of the department of public service and under the general management and super- vision of the director of public service. [102 v. 66.] § 4205-5 THE OHIO MUNICIPAL CODE. 608 Sec. 4205-5. [Appointment; removal.] The mayor of every city, where a municipal pawn department is established, shall appoint and have the power to remove the head of such de- partment, who shall be called the superintendent of the municipal pawn department. [102 v. 66.] Sec. 4205-6. [Assistants.] The director of public service shall have the exclusive right, to appoint as many assistant superintendents, pawn inspectors, clerks and pawn custodians in the municipal pawn department as shall be necessary for the administration of its affairs and shall likewise have sole power to remove or suspend any such assistant superintendent, pawn inspector, clerk and pawn custodian, but in making such appointments and removals he shall be subject to the same limitations which govern him in the appointments and removals of any other appointees of the same grade in the department of public service; and he shall make rules and regulations for the administration of the affairs in the said municipal pawn department. [102 v. 66.] Sec. 4205-7. [Appraisement; record.] The superintendent of the municipal pawn department shall organize and super- intend the whole department and give all the orders and directions to the appointees thereof. The assistant superin- tendents shall assist the superintendent in all his work as ordered by him and shall perform all his duties and exercise all his powers in case of his absence, disability or disqualifica- tion. The pawn inspectors shall examine and appraise every article offered as a pawn. The clerks shall make all the en- tries in the municipal pawn books and perform all the clerical work in the municipal pawn department. The pawn cus- todians shall place all pawns accepted by the department in a systematic order, take proper care of them as long as they are in the possession of said department and do the manual work pertaining to and connected with the same. And all the said appointees shall be subject to all the orders and directions of the superintendent and do or perform all the work assigned to them by him and make and keep a record of all their respective work. [102 v. 66.] ee se ee ae a eS a ———_ §— a a 609 MUNICIPAL PAWN DEPARTMENT. § 4205-8 Sec. 4205-8. [Civil service; classified service.] The post- tion of the superintendent of the municipal pawn department shall be included in the unclassified service of the civil service mention in section 4479 of the General Code; the classified service referred to in the same section shall comprise all other positions in said sub-department not included in the unclassi- fied service, or as the civil service commission appointed ac- cording to section 4478 of the General Code may, by rule, determine. All applicants for admission into the classified service and all assistant superintendents, pawn inspectors, clerks and pawn custodians, whose positions are included in the classified service in the municipal pawn department, shall be governed by the same laws and regulations, which apply to such other applicants and appointees of the same grade in the depart- ment of public service. [102 v. 67.] Sec. 4205-9. [Term, salaries, bond fixed by ordinance or resolution.] Council shall by ordinance or resolution fix the term of the appointment and the respective salaries and com- pensation of the superintendent, of the assistant superin- tendents, pawn inspectors, clerks and pawn custodians in the municipal pawn department, and determine the amount of the bond to be given by each of them, if any be required, and said bond shall be given by such appointees with surety sub- ject to the approval of the mayor of the city. [102 v. 67. | Sec. 4205-10. [How loans shall be made; loans limited; loss or damage; oath of applicant.] When such municipal pawn department has disposable funds it shall make advances on all goods and chattels offered, embraced within its rules and regulations, in the order in which they are offered; with the exception that it shall discriminate in favor of small loans to the indigent, but in no case shall the amount loaned to any one person exceed the sum of one hundred fifty dollars. It shall loan not to exceed one-half of the appraised value of gold and silver plate and ware and not to exceed one- third of such value, on all other goods and chattels, and shall carry insurance against loss or damage by fire, in a § 4205-11 THE OHIO MUNICIPAL CODE. 610 sum equal to the appraised value of the pledged property. In case of loss or damage by fire said department shall be liable to the pawners thereby affected in an amount not to exceed the appraised value thereof, which value shall be as- certained by the pawn inspector, at the time of making the loan; but before paying anything to the pawner for such loss of or damage to his said pledged property, said department shall after receiving and accepting full payment for such loss or damage from the insurance company, deduct there- from the principal, interest, and the storage and insurance charges due thereon. And before making any loan, said department shall inquire about and ascertain from the applicant or applicants for a loan, under oath: Ist. Their full name, age, residence and postoffice address. 2nd. The real ownership of the property offered as a pledge. 3rd. Whether the same is mortgaged or in any way or manner incumbered. 4th. How, from whom, and when it was acquired. . 5th. Its purchase price or original value, and make such other inquiry in that behalf, as it may deem fit or necessary. Said applicants shall sign the inquiry blank after the same is properly filled out and sworn to by them and it shall be filed and recorded in the office of the municipal pawn depart- ment. Wilful false swearings in such examination, shall be. perjury and punishable as such. The superintendent and assistant superintendents and the pawn inspectors, in said department shall have the power to administer oaths when they make such inquiries or perform any such duty pertaining to their department. If required by the superintendent or any assistant superintendent of said department, the police department of the city shall assist Same in the investigation of such applicant for a loan and of matters pertaining to the property offered by him as a pawn. [102 v. 67.] Sec. 4205-11. [Rate of interest.] No municipal pawn de- partment in this state shall charge more than six per cent. per annum to any pawner as compensation for the money ad- ong 611 MUNICIPAL PAWN DEPARTMENT. § 4205-12 vanced upon such pawn, nor. more than four per cent. per annum additional for storage and insurance. [102 v. 68.] Sec, 4205-12. [Redemption; sale; publication; surplus.] If the pledged property, consisting of dry goods or clothing of any kind, is not redeemed within the time fixed and agreed upon, the same shall, after three months from the expiration of the time of the pledge, or after six months from the ex- Ppiration of the time of the pledge, in case it consists of other articles, be sold in the city at public auction without re- demption under the direction of said municipal pawn department, and not elsewhere or otherwise, to the highest bidder for cash, after ten days’ notice of the time and place of sale and the kind of goods, first given in a public news- paper having general circulation in the said city. And the surplus money, if any arising from the said sale, after de- ducting the amount of the loan, the interest and the storage and insurance charges then due on the same, and the expenses of the advertisement and sale, shall be paid to the pawner or his legal representative or assigns, on demand at any time within two years after such sale, but if neither the pawner, nor his legal representative or assigns, apply for said surplus money within said time, the same shall be added to the mu- nicipal pawn fund and become the undisputed property of the city. On the application of the pawners, their legal representative or assigns, the pledged property shall during the period that intervenes between the date of the expiration of the time of the pledge and the last day of the notice, hereinbefore given, be delivered to them at any time during the regular business hours of said department: Provided, such applicants shall pay the sum originally loaned, with interest, the expenses for the publication of said notice and the storage and insurance charges that may have accrued thereon and surrender the duplicate card in the manner hereinafter mentioned. [102 v. 68. ] Sec, 4205-13. [Renewal.] The loans on pawns may be renewed from time to time, but in no case longer than for one year from the date of the original loan. [102 v. 69.] § 4205-14 THE OHIO MUNICIPAL CODE. 612 Sec. 4205-14. [Number, description, address, etc.; open records.] The said municipal pawn department shall at the time when it accepts the application for a loan, number the loan and number and describe the property pledged therefor and keep a correct account of all money loaned on pawns, the rate of the interest charged, the storage and insurance charges, the description of said property and the name and address of the borrower; and write plainly on a ecard, the name and address of the borrower, and also name or state thereon the property pledged, its appraised value and pawn number, the amount loaned and the number of the loan, the date when loaned, and the length of time for which loaned, the rate of interest charged, the storage and insurance charges, and the numbers and pages of the municipal pawn book or books in which the same is recorded. Said ecard shall be attached to all the property pledged, and every pawner shall receive from the said municipal pawn department a duplicate of said ecard. And said department shall at the time when the borrower pays back the amount loaned, with the interest, storage and insurance charges due thereon, deliver to him the property pledged, after he acknowledges the receipt thereof on said duplicate card and surrenders the same to the municipal pawn department. The said records shall be at all times open to the full and free inspection of the owners of the articles or of any person demanding the same: Provided, such person, shall produce an order to make such inspection, signed by the superinten- dent of said department or by the chief of police of the city; and in all cases where the description of the property pledged is alleged to correspond with any goods lost or stolen it shall be exhibited when demanded by the person authorized as above to inspect said book. [102 v. 69.] Sec. 4205-15. [Lost or stolen article.] If any goods, ar- ticles or things which shall be advertised in any public news- paper of the city, as having been lost or stolen and which goods, articles or things shall thereafter come in to the possession of any municipal pawn department, it shall, on actual notice thereof, immediately thereafter give information in writing to the police department of the city, that certain 613 MUNICIPAL PAWN DEPARTMENT. § 4205-16 goods, articles or things, answering the description of said advertised goods, articles or things, are in its possession, and shall also state from whom the same were or was received. [102 v. 69.] Sec. 4205-16. [Limitation.] No municipal pawn depart- ment created under this act shall do business in any other city than the one in which it is established and its patrons must be settled legal residents of the city. [102 v. 70.] Sec. 4205-17. [How money applied.] The moneys received as charges for advances on pawns shall be applied to the main- tenance, enlargement and the extension of the municipal pawn department, and to the extinguishment of any indebtedness created therefor. ‘ [102 v. 70.] Sec. 4205-18. [Report.] The superintendent of the mu- nicipal pawn department shall, on the first day of every month, file with the director of public service of the city a full report of the business transacted in said department dur- ing the previous month, which said statement shall be under oath. [102 v. 70.] Sec. 4205-19. [Examination.] The mayor may at any time, and if advisable or necessary more than once a year, ap- point competent disinterested persons not exceeding three in number, not more than two of whom shall be of the same political party, to examine without notice the affairs of the municipal pawn department, superintendent, assistant super- intendents, pawn inspectors, clerks and pawn custodians in said department, and to examine and audit their accounts or apy matters pertaining to or connected with their department for the purpose of ascertaining facts; in connection with such examination, the mayor or such appointees shall have the power to compel the attendance and testimony of witnesses, to administer oaths and to examine such persons as they shall deem necessary, and to compel the production of books and papers and the result of such examination shall be transmitted in writing to the mayor and recorded in his office and shall § 4205-20 THE OHIO MUNICIPAL CODE. 614 also be sent by him to the council and to the city solicitor without delay, and the latter shall proceed forthwith as the facts of the case may warrant. The council shall allow said examiners reasonable compensation for their service. [102 v. 70.] Sec, 4205-20. [No banking power.] No municipal pawn department created under this act shall have any banking power, whether of issue, deposit or discount and shall not receive deposits of money or negotiable security, nor loan money on commercial paper, notes, checks, drafts, or other negotiable commercial instruments. [102 v. 70.] Sec, 4205-21. [Excess charge, effect of; penalty.] If any municipal pawn department created under this act shall as a condition of redemption, or for making a loan or otherwise, in any way or for any purpose, charge the pawner of any pawn in excess of the amount authorized to be charged by such department it shall thereby forfeit all claims to, or lien upon such pawn and deliver the same on demand to the pawner, his legal representative or assigns, and in default of so doing such pawner or his legal representative or assigns, may re- cover the possession of such pawn by an action in replevin. Any superintendent, assistant superintendent, pawn inspec- tor, clerk or pawn custodian of any such department who shall charge, take or collect or receive any compensation on a loan beyond or in excess of the charges allowed, shall be guilty of a misdemeanor and be fined not to exceed one hun- dred dollars, or be imprisoned in the county jail for not more than six months, or both, and if such compensation on any one loan beyond or in excess of the charges allowed, amounts to thirty-five dollars or more, he shall be guilty of a felony and be imprisoned in the penitentiary not more than five years nor less than one year, and he and his sureties shall be liable for the loss, cost, and damages occasioned by the forfeiture above provided for, to be collected by civil action. [102 v. 70. ] DIVISION V. ORGANIZATION. Subdivision J. Legislative. CHAPTER 1. COUNCIL. CITIES. Organization. Sec. 4206. [Number city councilmen; how elected.]' The legislative power of each city shall be vested in, and exer- cised by a council, composed of not less than seven members, four of whom shall be elected by wards and three of whom shall be elected by electors of the city at large. For the first twenty thousand inhabitants in any city, in addition to the original five thousand, there shall be two additional members of council, elected by wards, and for every fifteen thousand inhabitants thereafter there shall be one additional member similarly elected, provided that the total number of members of such council shall not exceed thirty-two. When the total number of members of council is fifteen or more, one member of every five shall be elected at large, and the remainder from favs (102 Vv, 01 -00.v. ol, § 116.] (1) Old sections.—Compare old §§ 1655, 1655a, 1658, 1661, 1672, 1672b, 1673 R. S., all repealed. (2) Interpretation of provi- sions.—In Zumstein v. Mullen, 67 O. S. 382, where was under consid- eration the number of members of council fixed for Cincinnati, having a population of 325,902, this section, as originally enacted, was construed as follows: ae owe At least 5,000 inhabitants are required to consti- tute a city, and by the above section a city of 5,000 and under 25,000 in- habitants will have seven members of council; no more and no less. Where there are 20,000 inhabitants in addition to the original 5,000, two more are allowed, making nine for a city of 25,000, and under 40,- 000 inhabitants. After passing the 25,000 mark, it is provided that for every 15,000 inhabitants, one addi- tional member shall be elected. Take said first 25,000 from the total pop- ulation of the city of 825,902 and there will remain 300,902. This di- 615 § 4206 vided by 15,000, gives twenty mem- bers to be elected by reason of said 300,902 inhabitants. The first 25,- 000 gave nine members, which added to the twenty, makes twenty-nine in all as the total for the whole city. “Now as to the manner of elec- tion. The first 25,000 inhabitants gives nine members, six to be elected from wards and three in the city at large. For every 15,000 after the first 25,000 one member is added, to be elected from a ward; but when- ever the total number of members ‘reaches fifteen or more, four out of every five are to be elected from wards, and one at large, so that only three would be elected at large TABLE OF COUNCILMEN THE OHIO MUNICIPAL CODE. 616 so long as the number of members is under twenty, but at twenty, four would be elected at large, and at twenty-five members, five would be elected at large, and it would stand at five until the number of members would reach thirty, but as the total number in Cincinnati is only twenty- nine, only five can be elected at large, and the remainder, twenty- four, from wards.” , The ouly material change in the section since the decision in Zum- stein v. Mullen, is the addition of words “provided that the total num- ’ ber of members of such council shall not exceed thirty-two.” IN CITIES. (Adopted in Zumstein v. Mullen, 48 B. 177; 67 O. S. 382.) Pop. Total Council 5,000 u 25,000 9 40,000 10 55,000 iat 70,000 12 85,000 13 100,000 14 115,000 15 130,000 16 145,000 17 160,000 18 175,000 19 190,000 20 205,000 7h 220,000 22 235,000 23 250,000 24 265,000 25 280,000 26 295,000 27 310,000 28 325,000 29 340,000 30 355,000 31 370,000 32 By Wards. At Large. ~ for) AAaanraan»nnrh PhP PR RWWWWwWwWwWwww iw w 617 COUNCIL. § 4207 Sec. 4207. [Qualifications.]' Councilmen at large shall have resided in their respective cities, and councilmen from wards shall have resided in their respective wards, for at least one year next preceding their election. Each member of coun- cil shall be an elector of the city, shall not hold any other public office or employment,’ except that of notary public or member of the state militia, and shall not be interested in any contract with the city.» A member who ceases to possess any of the qualifications herein required, or removes from his ward, if elected from a ward, or from the city, if elected from the city at large, shall forthwith forfeit his office.‘ § 120.] (1) Old section.—Compare old § 1680 R. S., repealed (members must be residents) ; § 1681 R.S., re- pealed (must not hold other mu- nicipal office) ; § 1715 R.S., repealed (removal of officer from corporation, a resignation); § 1655a R. S., re- pealed (member of board of legisla- tion not to be interested in con- tract); § 1717 R. S., repealed (councilmen ineligible to any other office) . (2) Holding other office.—Con- struction—The inhibition against holding other public office is not limited to office in or employment by the municipality, but extends to all public offices and employments. State, ex rel. v: Gard, 29 C. C. 426, 8 C. C. (N. 8S.) 599, (aff'd, 75 O. S. 606). For construction of language of former § 1717 R, S. (re- pealed), see State, ex rel. v. Kinney, 20 C. C. 325; State, ex rel. v. Brown, 60 0. S. 499; State, ex rel. v. Keeler, 19 C. C. 149; State, ew rel. v. Me- Millan, 15 C. C. 163; Commissioners v. Cambridge, 7 C. C. 72; State, ex rel, v. Kearns, 47 O. S. 566. See, also, Op. Atty. Gen. (1918), p. 636. Councilman has been held ineligi- [96 v. 59, ble to appointment as member of board of health. (State ew rel. v. Craig, 69 O. S. 236); as member of city decennial board of equalization, (State, ex rel. v. Kearns, 47 O, S. 566) ; county school examiner and teacher has-been held ineligible to election as councilman, State, ex rel. v. Gard, 29 C. C. 426, 8 C..C. (N.8.) 599; so, workhouse director ineligible to council. Commissioners v. Cambridge, 7 C, C. 72. Offices of mayor and member of congress may be held by same per- son. State, ew rel. v. Gebert, 12 C. C. (N. 8S.) 274; 31 C. C. 355. A member of a council may at same time be a Central Commit- teeman. Op. Atty. Gen. (1916), p. 950. Effect of holding other office. —The appointment of member of council to an office he is ineligible to fill does not work an abandonment of his office as councilman. The ap- pointment to the second office is simply void. State, ew rel. v, Kearns, 47 O. S. 566; State v. Newark, 6 N, P. 523; State, ew rel, v. Craig, 69 O. S. 236, 244. So the election to council of one already holding an office which would make him in- § 4208 eligible to be a councilman would not work an abandonment of the first office, but the election to coun- cil would be void. Commissioners v. Cambridge, 7 C. C. 72. When councilman elected is in- eligible and election therefore void, council may proceed to fill the va- cancy without any proceedings to oust the person so elected, and with- out notice to him. State, ew rel. v. Gard, 29 C. C. 426; 8 C. C. (N. 8S.) 599, (aff’d, 75 O. S. 606). See also, State, ex rel. v. Craig, 69 O. S. 236. Whether appointments made by officers illegally holding their offices are void, quere. State, ew rel. v. Craig, 69 O. S. 236, 244. (3) Interested in contract.— Compare provisions in § 3808, ante, and see note thereunder. (4) Change of boundary.—Ef- fect of change of ward boundaries, see State v. Choate, 11 O. 511; Scoville v. Cleveland, 1 O. S. 126. Sec. 4208. THE OHIO MUNICIPAL CODE. [Election and term. ]* 618 Effect of removal.—When mem- ber has removed from the ward, the office is vacant and the number of members of council is reduced a¢c- cordingly. State, ex rel. v. Orr, 61 O. S. 384. In such case, a majority of members elected to council will consist of a majority of those re- maining qualified. Ib. Marriage to a woman who con- tinues to reside outside the mu- nicipality does not warrant the removal of a councilman on the ground of nonresidence. ‘State, ex rel. v. Merril, 16 C. C. (N. §.), 339. Where a councilman removes outside the state to accept em- ployment, without any fixed intent either to stay or return, the of- fice which he has held does not thereby become vacant. State, ex rel. v. Hathaway, 22 C. C. (N.8.), 314; 28 C. D. 481. One member of the coun- cil from each ward and such number of members thereof at large as is provided by law shall be chosen in each odd num- bered year. Members of council shall serve for a term of two years commencing on the first day of January next after their election, and until their successors are elected and qualified.? [96 v. 57, §116; 98 v. 195, § 117; 96 v. 57, §117.] (1) Old section.—See old § 1658 R. S., repealed. (2) Holding until successor qualifies.—See § 8 G. C. in Part II, providing that any person hold- ing an office of public trust shall continue until his successor is elected or appointed and qualifies, unless otherwise provided by consti- tution or laws. Membership in council was held to be an “office” within the meaning of such section. State, ew rel. v. Kearns, 47 O. S. 566, 568. Where a statute provides that an officer shall serve until his succes- sor is elected and qualified, a fail- ure to elect a successor does not create a vacancy to be filled by ap- pointment under a general author- ity to fill vacnncies, but the mceum- bent holds over. State, ew rel. v. Wright, 56 O. S. 540, 556; and tlie incumbent continues not as a mere ae 619 COUNCIL. § 4209 de facto officer, but as the rightful possessor of the office. State v. Howe, 25 O. S. 588, 596. Sec. 4209. [Compensation.]' The compensation of mem- bers of council, if any is fixed, shall be in accordance with the time actually consumed in the discharge of their official duties, but shall not exceed one hundred and fifty dollars per year each, in cities having a population according to the last pre- ceding federal census, of twenty-five thousand or less. For every thirty thousand additional inhabitants so determined, such compensation may be, but shall not exceed, an additional one hundred dollars per year, each, but the salary shall not exceed twelve hundred dollars per annum, and shall be paid semi-monthly. A proportionate reduction in his salary shall be made for the non-attendance of any member upon any regular or special meeting of council; provided, however, that two-thirds of the members elected to council may ex- cuse any member from attendance at any regular or special meeting, and when so excused no reduction in his salary shall be made for such non-attendance. [106 v. 114; 96 v. 61, § 126. ] (1) Old sections.—Compare old §§ 1683, 1683a, 1655a R. S., repealed. Sec. 4210. [Officers of council.]’ Within ten days from the commencement of their term, the members of council shall elect” a president pro tem, a clerk,* and such other employes of council as may be necessary, and fix their duties, bonds and compensation.* The officers and employes of council shall serve for two years, but may be removed at any time for cause, at a regular meeting by a vote of two-thirds of the members elected to council. [96 v. 59, §118.] (1) Old sections.—Compare old §§ 1655a, 1662 and 1676 R. S., re- pealed. (2) Mode of election.—Where no mode of voting in the organiza- tion of council is prescribed, any mode which insures a right to_vote to each member and by which the majority can be fairly ascertained, may be adopted, if not forbidden by law. State ew rel, v. Green, 37 O. S. 227. Thus, election may be made by motion. Jb. Refusal to vote by members pres- ent when election is being held and when their names are called, can not defeat the election. Jb. A plurality of votes cast was held sufficient to elect. State, ew rel. v. Anderson, 45 O. S. 196; State v. Miller, 62 O. S. 436. When the choice has been made § 4211 by such vote it is not necessary to complete the election, that the pre- siding officer announce the vote. State v. Miller, 62 O. S. 436. After the choice has thus been made no member of council can change the result by changing his vote. Ib. (3) Clerk, chosen as here, holds office by election and not by appoint- ment. State vy. Squire, 39 O. S. 197; State, ew rel. v. Witt, 72 O. S. 584. Duties as to journal.—Under former § 1755 R. 8S. (repealed), pro- viding the duties of clerk, it was held that the clerk has no power to correct the journal of council after the council has passed upon the record of its proceedings and mandamus will not lie to compel the clerk to do so. McClain v. Me- Kisson, 15 C. ©. 517. City clerk.—Section 118 of the THE OHIO MUNICIPAL CODE. 620 the clerk of council should perform the duties of city clerk unless other- wise specified in the act. The words “who shall also perform the duties of city clerk,” are omitted from the above § 4210, and the clerk of coun- cil therefore, has not now conferred upon him the duties belonging to the city clerk. Such duties gener- ally are now imposed upon the city auditor. Appointments.—As to power of city clerk, under former statutes, in the matter of appointments, see Lillard v. Ampt, 4 N, P. 272. (4) Clerk of council; compen- sation for special notices, ete. See Op. Atty. Gen. (1918), p. 775. Council of a city has authority to employ a person to obtain waivers of special assessment limitations from owners of prop- erty abutting upon an improve- ment and may fix his compensa- municipal code (of which the above tion. Op. Atty. Gen. (1918), p. section is a revision), provided that 1645. Powers. Sec. 4211. [Powers of council shall be legislative.]! The powers of council shall be legislative only, and it shall per- form no administrative duties whatever and it shall neither appoint nor confirm any officer or employe in the city govern- ment except those of its own body, except as is otherwise pro- vided in this title.2 All contracts requiring the authority of council for their execution shall be entered into and conducted to performance by the board or officers having charge of the matters to which they relate, and after authority to make such contracts has been given and the necessary appropriation made, council shall take no further action thereon.? [98 v. 88, § 123; 96 v. 60, § 123.] (1) Old section.—Compare old § 1655a R. S., repealed. (2) Purpose of restriction.— Under former statutes, containing the prohibition that council should exercise no appointing power, it was 621 said that the statutory prohibition “was, doubtless, intended, as it is certainly well calculated, to relieve the municipal legislature from the. distracting and corrupting influ- ences almost necessarily issuing from the dispensation of offi- cial and pecuniary patronage; and places the municipal _ legislature, in respect to the appointing power, in a position substantially similar to that in which the General Assem- bly of the State is placed by the Constitution of the State.” Bel- lows v. Cincinnati, 11 O. S. 544, 547. Such a restriction is intended to “emphasize the purpose that the respective executive, legislative and administrative functions of the city government should be distinct and independent of one another.” Lil- lard v. Ampt, 4 N. P. 305. Construction.—As to question under former statutes, of what would be considered an exercise of appointing power, within the mean- ing of such a restriction, see Lillard v. Ampt, 4 N. P. 305 and Bellows v. Cincinnati, 11 0. S. 544, Mandamus to enforce perform- ance by municipal council of min- isterial duties, but not legisla- tive. See Op. Atty. Gen. (1920), Dp: 292: Liability of councilmen.—The members of a municipal council, _ when acting in good faith are exempt from individual liability for the exercise of their legislative discretion in voting for or against any proposed COUNCIL. § 4212 legislation. Hickville v. Blackeslee, 103 O. 8. 508. The fact that the proposed legisla- tion is prohibited by law, does not make it any the less legislative in its nature. Ib. (3) Proper officers must exe- cute municipal contracts and the power to make public contracts can- not be delegated by one board or of- fice to another. Knauss v. Co- lumbus, 13 Dee. 200. Street improvements.—After council has made appropriation for street improvement it is without further authority in the matter. The letting of the contract, the su- pervision and control of the work, are with the Department of Public Service. State, ew rel. v. Roebuck, 15 Dec. 400. The council, under Section 3825 G. C., is the proper authority to determine the kind of material to be used in a municipal improve- ment. Op. Atty. Gen. (1915), p. 890. Procedure in making con- tracts.—In case of contracts re- quiring the authority of council, the appropriation and approval by coun- cil may be made before bids are re- ceived and the contract entered into and it is not necessary that the par- ticular contract made by the di- rector within the appropriation and the authority, be approved by coun- cil. Akron v. Dobson, 81 O. S. 66. Contracts for legal printing, how made, see McCormick y. Niles, $1 O. S. 246. Sec, 4212. [Council to divide city into wards.]' After each recurring federal census, and within three months after the issuance of the proclamation, by the secretary of state of the population of such city, and when there is annexed thereto § 4212 THE OHIO MUNICIPAL CODE. 622 any territory containing, by the last federal census, such number of inhabitants as will entitle the city to an additional member of the council, the council shall subdivide the city into wards, equal in number to the members of the council therein to be elected from wards.’ If the council fails to make such subdivision into wards within the time herein required, on the application of the president of the council, it shall be made by the director of public service. All wards shall be bounded, as far as practicable, by county lines, streets, alleys, avenues, public grounds, canals, water courses, corporation lines, center lines-of platted streets, or railroads, and shall be composed of adjacent and compact territory, and as nearly equal in population as practicable. [98 v. 195, §117; 96 v. 57, §117.] (1) Old sections.—Old §§ 1628 form given below. As to construc- to 1632 R. 8., repealed. tion of such ordinance under a for- (2) Redistricting ordinance mer law, see State v. Cincinnati, 3 after new Federal census or upon WN. P. 127. annexation of new territory, see Election of additional councilmen. See Op. Atty. Gen. (1922), p. 72. FORM OF ORDINANCE TO REDISTRICT CITY AFTER NEW FED- ERAL CENSUS OR ANNEXATION OF TERRITORY. Ordinance No. ........ To. subdivide ‘the. city. of; ...:4088.5. Ue eee ae into wards. Whereas, according to the last federal census, a3 shown by the proclama- tion of the secretary, of state, thertity of... 5.20.5. gh sss Feomiay sims has a population«Gh, «de tet ae cee her ee ; and whereas this council is authorized and directed by law to re-district said sad and subdivide the same into wards, now therefore: (Or, if by council after annexation of territory: “Whereas, there has been annexed to the city Of ..............000- in the manner provided by law, territory bounded and described as follows (herg describe new terri- tory annexed) ; and whereas, the territory so annexed contained according to the last federal census .............. inhabitants; and whereas by the annexation of said territory the city of ..............0.. is entitled LOM oe > Ries ae si. Pe additional members of council; and whereas, by reason of said annexation, this council is authorized and directed by law to redistrict said city and subdivide the same into wards, now therefore:’’) Be it ordained by the council of the CHUY VOT riers ais aldo Sd State of Ohio: See. 1. That the city-6f 4.374... tae eee be and it is hereby sub- GIVZGEN INTO te cere mee wards, which are equal in number to the members of council who are hereafter to be elected from wards according to law sand-esid . (i 04% wards are hereby created and established in this city, and the boundaries thereof shall be such as are hereinafter set forth, COUNCIL. § 4213 623 which boundaries are so fixed as that each ward shall contain as nearly as practicable an equal number of inhabitants. See. 2. That the boundaries of the wards shall be as follows: First Ward. The first ward shall contain all that territory bounded and described as follows: Second Ward. Ete. Sec. 3. That all ordinances or parts of ordinances inconsistent here- with are hereby repealed, and this ordinance shall take effect and be in force from and after the earliest period allowed hy law. RBS CCIM creistare «: cneke Fis ouskoseatonetare Bal Ol Sem sole ete efbre)| s «)b, a 0 00 Sfe emi sle 6. 6)shie 6 eieje 0 \s\\e Attest: President of Council. Bie) Siajiosey els) =, é easue ©).e.0 te 6.60 [0 ole sue Sec. 4213. [Salaries shall not be changed during term.]' The salary of any officer, clerk or employe shall not be in- creased or diminished during the term for which he was elected or appointed,” and, except as otherwise provided in this title, all fees pertaining to any office shall be paid into the city treasury. [96 v. 61, § 126.] (1) Old section.—Compare old § 1717 R. S. (repealed). (2) Increase or reduction dur- ing term.—Former § 1717 R. S. (repealed), on this subject, was held to relate only to officers of a munici- pal corporation proper. State, ex rel. v. Bd. Ed., 21 C. C. 785. ‘It did not apply to board of ex- aminers for schools. Ib. Compare Constitutional provision (Art. JI, §20 of Constitution). Under this provision it was held that if the effect of a statute, what- ever its terms, was to increase an officer’s salary during his term, it was void. State, ex rel. v. Raine, 49 O. 8. 580. The Constitutional provision was held not to forbid leg- islation reducing fees or percent- ages; salary was held to mean peri- odical payment. Thompson, Rela- tor, v. Phillips, 12 O. S. 617; so in- crease in per diem compensation was held not an increase in salary. Gobrecht v. Cincinnati, 51 O. S. 68. The Constitutional rule was held not to apply to an officer holding over until his successor is elected and qualified. Woehler v. Toledo, 6 B. 282: nor to a law reducing compen- sation of officer after election, but before his term began. State, ew rel. v. Capeller, 3 B. 853. The Constitu- tional provision does not refer to municipal officers. State, ew rel. v. Bd. of Ed., 21 C, C. 785. Safety director ‘term of office.’’ (1918), p. 364. The salary of an appointee to a vacancy in a public office is controlled by the law in effect at the time his appointment was made, and not by the law in ef- fect at the time his predecessor has no _ fixed Op. Atty. Gen. § 4214 was elected for the term which he is to complete. State, ex rel. v. Tanner, 27 O. C. A.’385. Salary of clerk of city council may not be increased or dimin- ished during the term of his em- ployment, such clerk by section 486-8 G. ©. being placed in un- classified list. Op. Atty. Gen. (1919), p. 1160. Where council merges duties of Clerk of Council with duties of City Auditor, no increase can be made in compensation during cur- rent term. However, assistants may be added. Op. Atty. Gen. (1916), p. 597. See, further, as to application of such a prohibition, State, ew rel. v. Carlisle, 16 Dec. 268; 3 N. P. (N. 8S.) 544, Policemen.—A policeman is an officer within the meaning of this section and his compensation cannot be increased or diminished during his term, which is during good he- havior. State, ex rel. v. Painesville, 32 C. C. 123; 13 C. C. (N. 8.) 577. Contra, State, ex rel. v. Bish, 12 N. P. (N. 8.), 369; Stage v. Coughlin, 12 N. P. (N. 8.), 419. And see Op. Atty. Gen. (1915), p. 74. (3) Fees of mayor in cities must be paid into city treasury ex- cept as otherwise provided. This refers to municipal fees only. In state cases the mayor is allowed THE OHIO MUNICIPAL CODE. 624 by § 4550 (formerly § 1745 R. S.) the same fees as justices of the peace, and such fees are not turned into city treasury. Piqua v, Cron, 14 Dec. 500; 2 N. P. (N. 8S.) 165; Portsmouth v, Milstead, 28 C. C. 384; 8 C. C. (N. S.) 114, (aff’d, 76 O..S. 597)... But the mayor of a city is not entitled to fees in prosecutions for violation of penal ordinances. Small- wood v. Cambridge, 75 O. S. 339. As to such fees this section was held to be inconsistent with and to super- sede §§ 1744, 1745, 1843 and 1751 R. S. (now §§ 4548, 4549, 4556, and 4388 G. C.). See also Bellefontaine v. Haviland, 3 N. P. (N. S.) 99; 15 Dec. 482; Cambridge v. Smallwood, 27 C. C. 302; 6 C. C. (N. 8.), 230. And see Op. Atty. Gen. (1919), p. 372. Upon the failure of the mayor to pay fees collected into city treasury he may be compelled to do so in an action brought for that purpose by the city. Cambridge v. Smallwood, 27 C. C. 302; 6 C. C. (N. 8S.) 230. Chief of police was held not entitled to fees for service of process issued by mayor in state cases, and such fees collected and paid into the treasury were held not recoverable by him. Delaware v. Matthews, 32 C. C. 408; 13 C. C. (N. S.) 5389, (aff'd, 82 O. S. 423). But see § 4534, post. Sec. 4214. [Power of council as to salaries and bonds. ] Except as otherwise provided in this title, council, by ordi- nance or resolution, shall determine the number? of officers, clerks and employes in each department of the city govern- ment, and shall fix by ordinance or resolution their respective salaries and compensation,? and the amount of bond to be given for each officer, clerk or employe in each department of 625 COUNCIL. § 4214 the government, if any be required. Such bond shall be made by such officer, clerk or employe, with surety subject to the approval of the mayor. (1) Exceptions.—As to board of health, see § 4412, post; university directors, §§ 4001 and 7902; library trustees, § 4005, ante. As to department of public serv- ice, see § 4327, post, and notes. (2) Reduction of number of employes.—The authority to fix the number of employes, etc., was held to give council power to reduce the number fixed by a previous ordi- nance; and an ordinance reducing the number of patrolmen in depart- ment of public safety was held valid. State v. Searcy, 31 C. C. 83; 11 ©. Cc. (N. 8S.) 521 (aff'd, 80 O. S. 740). (3) Character of salary.—Sal- ary is not a property right of an officer and injunction will not lie to protect it. Reeves v. Griffin, 29 B. 281. Liability for salaries of em- ployes, fixed by an ordinance does not attach to the municipality un- less services are actually performed, and this even though they are per- mitted to report for duty and are not discharged or removed. State v. Philbrick, 13 Dec. 158. Officer suspended is not entitled to salary during time of suspension. Steubenville v. Culp, 38 O. §, 18. Officer not qualifying.—An offi- cer who has not qualified is not en- titled to salary. State, ew rel. v. Eshelby, 2 C. C. 468. De facto officer is not entitled to maintain an action for the salary of the office for the period of his service. Ermston v. Cincinnati, 7 N. P. 685; Knorr v. Bd, of Ed., [99 v. 567, § 227; 96 v. 95, § 227.] 9 B. 182. But see Cincinnati v. Green, 2 C. S. C. R. 278. But if a municipality has al- ready paid a de facto officer the salary for the time he served, it cannot be compelled to pay a de jure officer, who ousts the incum- bent, for the same period. State v. Eshelby, 2 C, C. 468. Where no salary fixed.—There are no fees or salaries attached to an office except such as are pre- scribed by statute or ordinance. If no fees or salary have been fixed, the person filling the office cannot claim compensation, even though his services were rendered at the re- quest of a superior. Halpin v. Cin- cinnati, 2. Gaz, 386. Lease’s Claim, 4 C, C. 3; Strawn v. Commissioners, 47 O. S. 404, 408; Clark v. Com- missioners, 58 O. S. 107; Butler Co, v. Welliver, 12 C. C. 440; Clark vy. Lucas Co., 14 C. C. 349; Tuall v. Lueas Co., 3 N. P. 112. Provisions for compensation of public officials are strictly construed and compensation is allowed only when clearly expressed. State, ex rel. v. Oulbertson, 18 Dec. 527; Richardson v. State, 66 O. S. 108. ‘Nor is officer entitled to any al- lowance for assistants and deputies, unless expressly authorized. In re County Commissioners, 18 Dec. 559. And if paid for services where no compensation is provided for the office, the money paid may be recov- ered back. Swartz v. Wayne Co., 35 B. 275; Jones v. Commissioners, 57 O. S. 189. Retroactive increase of salaries is in violation of Sec. 29, Art. II, § 4214 of the constitution, and void. Op. Atty. Gen. (1919), p. 66. Extra compensation.—Where salaries and fees are regulated, offi- cer cannot charge for other services or claim any fees by implication. Debolt v. Cincinnati Township, 7 0, S. 237; see also Thornilly v. State, 81,0. S.-117. Expenses to conventions.—In absence of statute, building in- spector can not recover expenses of attendance on a convention of Building Inspectors under orders of his superior officer. State v. Wright, 17 C. C. (N.8.), 396. And see Op. Atty. Gen. (1919), p. 143. Ordinance determining number of positions in department and fix- ing salary and bond is of a gen- eral nature and cannot be passed with regular semi-annual appro- priation ordinance. Op. Atty. Gens (1917), ps 127. Council may fix compensation of city engineer upon basis of per- centage of cost of improvement; when fixed per diem cannot be changed to percentage basis after improvement begun. When paid a salary it cannot be charged against fund of bond issue. Op. Atty. Gen. (1918), p. 364. Amount of bond of sanitary po- lice and plumbing inspectors fixed by council. Op. Atty. Gen. (1918), p-. 549. Council may fix a graduated TEE JHIO MUNIDIPAL CODE. 626 seale of compensation. Op. Atty. Gen. (1918), p. 632. Eight-hour day established by council. See Op. Atty. Gen. (1922), p. 1053. Jouncil has power to create of- fices and fix terms in departments, when. See Op. Atty. Gen. (1918), p- 1198: Council, in fixing compensation of employes, may fix same at so much for one month and lesser amount thereafter. Op. Atty. Gen. (1918), p. 1490. Recovery of overpayment.— Right to recover overcharges and ex- cessive fees allowed officers; see Ridenour v. State, 14 C. C. 393, 400; Jones v. County Commissioners, 57 O. S. 189, 220; State v. Brown, 20 C. C. 57; State v. Kelly, 32 0. S. 421, 431; Cricket v. State, 18 O, S. 9. 24; State ew rel. v. Taylor, 3 N. P. (N. S.) 505, 16 Dec. 66, (aff'd, 77 O. S. 597) ; Swartz v. County Com- missioners, 12 C. D. 590, (aff’d, 54 O. S. 669); Iddings Reports (Day- ton), vol. 1, pp. 77, 78; Gobrecht v. Cincinnati, 51 O. S. 68, 73; Weaver v. State, 32 C. C. 151, (aff'd, 83 O. S. 508); Walker v. Dillonvale, 30 C, C. 623; 11 C. C. (N.S.) 385. Construction of ordinance. ~—-For construction of ordinances fix- ing salaries under previous laws, see Hatch v. Cincinnati, 17 0. S. 48. FORM OF GENERAL ORDINANCE FIXING SALARIES AND BONDS OF OFFICERS AND ORGANIZING DEPARTMENTS. Ordinance No. To fix the salaries and bonds of certain officers, to determine the number of assistants, clerks and employes in certain departments and to fix their salaries and bonds. Be it ordained by the council of the C1 LOE 4 pies or fied ds ae , State of Ohio: » 627 COUNCIL. § 4215 Sec. 1. (Mayor’s office.) That the salary of the mayor shall be.....- dollars per annum, payable .......... , and he shall give bond in the sum G8 26 CIR One dollars. In the office of the mayor there shall be one sec- retary, one clerk, one stenographer and one messenger, who shall be appointed by the mayor, and perform such appropriate duties relating to the mayor’s office as shall from time to time be assigned by him. They shall receive the following salaries, payable ............-+-++++055 Secretary ...-..-++++-+- dollars per annum. Ete., ete. See. 2. (Auditor’s office.) (Add sections for other departments desired to be provided for.) See. 3. That all ordinances or parts of ordinances inconsistent herewith be repealed and this ordinance take effect from and after the earliest period allowed by law. WARS Mer rRoe costes ferosue 6.0 he oe OBR es © Viel 6 a8 ¢ es 2) O18 6 0 60 se @ 6 ew 6 President of Council. Siw BLehielicc§) sic ea) © eles 07.0) edn ofete.e era fe Clerk. Nore: The above form of ordinance may be used in fixing salaries and bonds and in organizing all departments of the city service for which coun- ceil is authorized to provide. The number of employes in the department of public service and the number of employes and salaries in the depart- ments of health, university and library are within the exclusive control of the officers in charge thereof. See §§ 4001, 4005, 4327, 4361, 4412 and 7902. Changes made in salaries already fixed will not go into effect until the expiration of existing terms of the officers affected. (3 4213.) VILLAGES. Organization. Sec. 4215. [Number of members; election.]' The legisla- tive power of each village shall be vested in, and exercised by, a council, composed of six members, who shall be elected by the electors of the village at large, for terms of two years and shall serve until their successors are elected and quali- fied.2 [96 v. 82, § 193.] (1) Old section.—Compare old Failure to elect officers does not § 1672 R. S., repealed. dissolve a municipal corporation. (2) See note (2) under § 4208, Op. Atty. Gen. (1918), p. 180. ante. § 4216 THE OHIO MUNICIPAL CODE. 628 Sec. 4216. [President pro tem. of council; employes.] At the first meeting in January of each year, the council shall immediately proceed to elect! a president pro tem from their own number, who shall serve until the first meeting of the council in January next after his election. From time to time the council may provide such employes for the village as they may determine, and such employes may be removed at any reg- ular meeting by a majority of the members elected to council, When the mayor is absent from the village or is unable for any cause to perform his duties, the president pro tem of coun- cil becomes acting mayor, and shall have the same powers and perform the same duties as the mayor. [99 v. 246, §195; 96 v. 82, §195.] : (1) Compare § 4210 and see notes thereunder. Sec. 4217. [Vacancy when president pro tem. becomes mayor.] When the president pro tem of council becomes the mayor, the vacaney thus created in council shall be filled as other vacancies therein, and the council shall elect another president pro tem from their own number, who shall have the same rights, powers and duties as his predecessor. [96 vy. 83, § 200.] Sec, 4218. [Qualifications; vacancies.] Each member of council shall have resided in the village one year next preced- ing his election, and shall be an elector thereof. No member of the council shall hold any other public office or employ- ment, except that of notary public or member of the state militia, or be interested in any contract with the village. Any member who ceases to possess any of the qualifications herein required or removes from the village shall forfeit his office. [96 v. 82, § 196.] (1) Compare § 4207, ante, and see notes thereunder. Powers. Sec, 4219. [Compensation and bonds of officers, clerks and employes.] Council shall fix the compensation and bonds of all officers, clerks and employes in the village government, COUNCIL. 629 § 4220 except as otherwise provided by law.* All bonds shall be made with sureties subject to the approval of the mayor. The compensation so fixed shall not be increased or diminished during the term for which any officer, clerk or employe may have been elected or appointed.” Members of council may re- ceive as compensation the sum of two dollars for each meet- ing, not to exceed twenty-four meetings in any one year. [97 vy. 118, § 197; 96 v. 82, § 197.] (1) Form of ordinance fixing compensation and bonds of officers and employes, see that given under § 4214, ante. Compensation. — See generally notes to § 4214. Exceptions.—See note (1) under code § 4214. (2) See note (2) to § 4213, ante. This section does not apply to compensation of a hold-over offi- cer. Op. Atty. Gen. (1920), p. 482. (3) No ordinance necessary.— The statute fixes the compensation of members of council of the village and it is not necessary that it should be fixed by ordinance prior to com- mencement of terms of office. But council may authorize payment by resolution passed after services have been rendered. Walker v. Dillonvale, 82 O. S. 137, Salary of Council members.— When council fails to make appro- priation for salary of its mem- bers, the succeeding council can- not do so. Op. Atty. Gen. (1916), pe LOK. Special meetings; entitled to compensation for, when held on different days. Op. Atty. Gen. (1915), p. 1021. Sec. 4220. [Legal counsel for villages.] When it deems it necessary, the village council may provide legal counsel for the village, or any department or official thereof, for a period not to exceed two years, and provide compensation therefor.’ [96 v. 83, § 199.] (1) Village solicitor may be employed for a period not exceed- ing two years, either by a direct res- olution of council designating the name of the attorney chosen and the terms of his employment; or by or- dinance for the selection by it of a solicitor and stated periods of not exceeding two years; or by resolu- tion directly employing an attorney for any department or officer of the corporation, for some specific legal work, or for a specially designated period not exceeding two years. Certificate that money is in the. treasury is not required before con- tract can be made for employment of legal counsel. See § 3908, ante. A Prosecuting Attorney of a county cannot accept employment from a village council, when. Op. Atty. Gen. (1916), p. 1919. § 4221 THE OHIO MUNICIPAL CODE. 630 FORM OF ORDINANCE PROVIDING FOR VILLAGE SOLICITOR. Ordinance No. ........ Providing for the employment of a Village Solicitor. Be it ordained by the council of the village of ............0.e0.-00e : State of Ohio: Sec. 1. That legal counsel shall be provided for this village, and the person employed as such counsel shall be known as the “Solicitor of the Village Of <2 566. le eran v8 ” Such solicitor shall be employed by council for a period not exceeding two years. Sec. 2. The salary of the solicitor shall be ........... dollars during the period of his service, payable.................. Sec. 3. The solicitor shall be an attorney at law, admitted to practice in the courts of Ohio. Jt shall be the duty of said solicitor to act as attorney and counsel for the village and the officers thereof in their official capacity, and, as such attorney, to prosecute and defend all actions by or against the village or any department or officer thereof during the term of his employment; and to render legal opinions to the council and to any department or officer of the village upon request in writing. Sec. 4. This ordinance shall take effect and be in force from and after the earliest period allowed by law. IPASSC Re tis seer ee SaILD eer. ee RE per Pa: eel F President. Attest: steed oheyeto crs, hee Oe eee Clerk Contracts. Sec. 4221. [How contracts shall be let; bids.] All con- tracts made by the council of a village shall be executed in the name of the village and signed on behalf of the village by the mayor and clerk. When any expenditure other than the compensation of persons employed therein, exceeds five hun- dred dollars, such contracts shall be in writing and made with the lowest and best bidder after advertising for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the village. The bids shall be opened at twelve o’clock noon on the last day for filing them, by the clerk of the village and publicly read by him. [96 v. 83, § 198.] (1) Making of contracts.—See Where an alleged contract be- notes under § 4328, post. tween a village council and a 631 property owner is denied by the latter, a recital in the minutes or records of council that it has such a contract and legislation enacted COUNCIL. § 4222 Improvement of streets with “force fund’’; cost of labor not included in the $500 limitation. Op. Atty. Gen. (1915), p. 1126. Forms of advertisement, bids, etc.—See forms given under § 4328, post. in respect thereto are not suffi- cient to establish existence of such contract. Carrothers v. Cin- cinnati, 12 Oh. App. 69. Sec. 4222. [Bids and proceedings thereon.] Each such bid shall contain the full name of every person or company interested in it and shall be accompanied by a sufficient bond or certified check on a solvent bank that, if the bid is accepted, a contract will be entered into and the performance of it properly secured. If the work bid for embraces both labor and material, they shall be separately stated, with the price thereof. The council may reject any and all bids. The con- tract shall be between the corporation and the bidder, and the corporation shall pay the contract price in cash.1 When a bonus is offered for completion of contract prior to a specified date, the council may exact a prorated penalty in like sum for each day of delay beyond the specified date. When there is reason to believe there is collusion or combination among bid- ders, the bids of those concerned therein shall be rejected.’ [96 v. 838, § 198.] provement bonds in lieu of cash. See Op. Atty. Gen. (1921), p. 424. (2) See notes under § 4329, post. (1) Municipality without power to require contractor to accept im- Sec. 4223. [Alterations or modifications of contract.] When it becomes necessary in the opinion of council, in the prosecution of any work under contract, to make alterations or modifications in such contract, such alterations or modifi- cations shall be made only by council by resolution, but such resolution shall be of no effect until the price to be paid for the work and material or both under the altered or modified contract has been agreed upon in writing and signed by the contractor, and by the mayor on behalf of the corporation. No contractor shall be allowed to recover anything for work or material caused by any alteration or modification, unless such contract is made in such manner, nor shall he in any § 4224 THE OHIO MUNICIPAL CODE. 632 case be allowed to recover for such work or material or either, more than the agreed price.t_ The provisions of law relating to requiring bids and the awarding of contracts for public buildings, so far as they apply, shall remain in full force and effect.’ the office of the village treasurer.” 563, § 144. ] (1) See notes under § 4331, post. Failure by a contractor to com- ply with the conditions of a con- tract entered into by him with a village, which conditions were waived by council, is not, in the absence of fraud or misconduct A duplicate copy of each contract shall be filed in [96 v. 83, $198; 99 vy. tion against performance of the contract, especially where such failure does not result in preju- dice to the community. Moore v. Village of Elmore, 13 N. P. (N. 8.), 651. (2) See notes under § 4332, post. on their part, a cause for injune- CITIES AND VILLAGES. Ordinances. Sec. 4224. [Ordinances and resolutions; how adopted.]? The action of council shall be by ordinance or resolution,? and on the passage of each ordinance or resolution the vote shall be taken by ‘‘yeas’’ and ‘‘nays’’ and entered upon the journal, but this shall not apply to the ordering of an election, or direction by council to any board or officer to furnish coun- cil with information as to the affairs of any department or office. No by-law, ordinance or resolution of a general or permanent nature,* or granting a franchise, or creating a right, or involving the expenditure of money,°® or the levying of a tax, or for the purchase, lease, sale, or transfer of property,°® Shall be passed, unless it has been fully and distinetly read on three different days,7 and with respect to any such by-law, ordinance or resolution, there shall be no authority to dispense with this rule, except by a three-fourths vote of all members elected thereto, taken by yeas and nays, on each by-law, reso- lution or ordinance, and entered on the journal. No ordi- nance shall be passed by council without the concurrence of a majority of all members elected thereto. [R. S. See. 1694; 96 v. 60, § 122; 96 v. 82, § 196; 90 v. 136; 87 v. 36; 66 v. 166.] 633 (1) Old section.—See old § 1693 R. S., repealed, and compare old § 1655a R. S., repealed. Provisions mandatory.—The pro- visions of this section are mandatory and must be strictly followed. Vinton v. James, 108 O. S. 220. Where these provisions have been complied with but the village clerk has failed to record the action of council and the plaintiff has ac- quiesced in the construction of a side walk in front of his property at public expense, which specially benefits his property he is not entitled to an injunction against the assessment. Ib. (2) Cannot act separately.— Corporate acts cannot be performed by individual members of a board acting separately. State, ew rel. v. Liberty Twp., 22 O. S. 144; McCor- tle v. Bates, 29 O. S. 419. Character of ordinances.—Or- dinances are binding on strangers coming into the municipality. Mar- ietta v. Fering, 4 O. 427. An ordinance making a contract gives parties to it vested rights which cannot be impaired by a re- peal of the ordinance. Lima Gas Co. v. Lima, 4 C. C. 22. To impose liability on the munici- pality because of its ordinance the statute as to passage, etc., must ve followed. Wellston v. Morgan, 65 Of 8.219. Oral evidence that ordinance was passed, was held admissible to prove it, if the records did not show its passage. Drott v. Riverside, 4 C. C. 312. Limitations on power of coun- cil.—Council has only the powers granted, and no others; its pro- ceedings must be within the powers conferred and in substantial con- COUNCIL. § 4224 formity to the statutes regulating them. Gas and Water Co. v. Elyria, 57 O. 8, 374. See further, notes under § 3616, ante. Power granted to council, other than mere ministerial power, cannot be delegated. Hengst v. Cincinnati, 7 N. P. 1; Ampt v. Cincinnati, 3 N. P. 223. Ministerial duties, but not legis- lative duties of council, may be enforced by mandamus. Op. Atty. Gen. (1920), No. 1075. Ordinances do not determine civil rights between individuals. Municipal ordinances declaring cer- tain acts to be nuisances, or permit- ting nuisances to exist, do not cre- ate or protect from, civil liability between individuals. Chambers v. Ins. Co., 1 Disney, 327, 336; Van- dyke v. Cincinnati, 1 Disney, 532; Veigel v. Lunkenheimer, 10 B. 293; Clark v. Fry, 8 O. S. 358. Ordi- nances regulating speed of steam or street railway cars in the streets do not determine civil liability be- tween individuals, but may go to jury on question of negligence. Meek v. Pennsylvania Ry. Co., 38 O. S. 632; Ry, Co. v. Herrick, 49 0. S. 25, 32; Becker v. St. Ry. Co., 1 INeeks 359. But violation of a speed ordi- nance is not negligence per se. Meek vy. Pennsylvania Railway Company, 88 O. S. 632; Bell v. Pistorius, 18 C. C. 78. See further Green v. Day- ton. St.. Ry. Co.;,LhaNa Pir (N. ooh Ga eee ee ee. consisting of three members, residents of said vil- lage, be, and hereby is, established as provided in § 4357 of the General § 4358 THE OHIO MUNICIPAL CODE. 7236 Code of Ohio, and that the members of said board shall be elected in ac- cordance with, and, shall be subject to, all the provisions of the said code. Sec, 2. That the members of said board shall each receive $......... per annum, payables). Py ipa. veces oi tole ei mok ete lees deal en eee en ee and shall each give bond in the sum of $............. in the manner pro- vided by law. Sec. 38. This ordinance shall take effect and be in force from and after the earliest period allowed by law. PAaSSeCds) oi ehccde wp eae oe ee LO. President. Ce ry Clerk. Sec. 4358. [Appointment of members until regular elec- tion.] When the council, in accordance with the provisions of this chapter, establishes a board of trustees of public affairs, the mayor of the village shall appoint the members thereof, subject to the confirmation of the council. Such appointees shall hold their respective offices until their successors have been elected according to law and such successors shall be elected at the next regular election of municipal officers held in such village. [98 v. 252, § 205; 96 v. 85, § 205.] Sec. 4859. [Vacancies.] In case of vacancy in such board from death, resignation or otherwise, it shall be filled for the unexpired term by appointment by the mayor, subject to con- firmation by the council. [98 v. 252, § 205; 96 v. 85, § 205. ] Sec. 4360. [Organization of board.] The board of trustees of public affairs shall organize by electing one of its members president. It may elect a clerk, who shall be known as the clerk of the board of trustees of public affairs. [98 v. 252, § 205; 96 v. 85, § 205.] Sec. 4361. [General powers and duties.]' The board of trustees of public affairs shall manage, conduct and control the water works, electric light plants, artificial or natural gas plants, or other similar public utilities, furnish supplies of water, electricity or gas, collect all water, electrical and gas rents, and appoint necessary officers, employes and agents. PUBLIC SERVICE. $4361 © 737 The board of trustees of public affairs may make such by- laws and regulations as it may deem necessary for the safe, economical and efficient management and protection of such works, plants and public utilities. Such by-laws and regula- tions when not repugnant to the ordinances, to the constitu- tion or to the laws of the state, shall have the same validity as ordinances. For the purpose of paying the expenses of conducting and managing such waterworks, plants and publie utilities, of making necessary additions thereto and extensions thereof, and of making necessary repairs thereon, such trus- tees may assess a water, light, power, gas or utility rent, of sufficient amount, in such manner as they deem most equi- table, upon all tenements and premises supplied with water, light, power, or gas, and, when such rents are not paid, such trustees may certify the same over to the auditor of the county in which such village is located to be placed.on the duplicate and collect as other village taxes or may collect the same by actions at law in the name of the village. The board of trustees of public affairs shall have the same powers and perform the same duties as are possessed by, and are in- cumbent upon, the director of public service as provided in sections 3955, 3959, 3960, 3961, 3964, 3965, 3974, 3981, 4328, 4329, 4330, 4331, 4332, 4833 and 4334 of the General Code, and all powers and duties relating to waterworks in any of these sections shall extend to and include electric light, power and gas plants and such other similar public utilities, and such boards shall have such other duties as may be prescribed by law or ordinance not inconsistent herewith. [103 v. 561; 98 V»252; 96 v: 85, § 205.) (1) Requirements for contract. —In the absence of an ordinance authorizing such a contract, the board of trustees of public affairs of a village are without authority to enter into a contract with an electrical company to pump the village water supply for a period of ten years for the consideration of $2,400 a year, payable monthly, and injunction does not lie for the enforcement of such a con- tract. Such contract is subject to the provisions of Sec. 4328. Mil- lersburg v. Wurdack, 22 N. P. (N. 8.), 49. Contract in excess of $500 requires action of council. See Op. Atty. Gen. (1928), No. 2381. THE OHIO MUNICIPAL CODE. § 4362 738 Sec. 4362. [Special tax for municipal plant.] When water- works and electric light plants or either of them are owned and operated by a village which receives its street lighting and fire protection therefrom and the proceeds from the opera- tion of such plant or plants is insufficient to pay the expenses? of operating such plants or either of them, the council may levy a tax not to exceed five mills on each dollar valuation of the taxable property listed for taxation in such village, real and personal, to pay the running expenses and extensions made thereto after applying the proceeds therefrom, which tax shall be in addition to all other taxes authorized by law. [98 v. 46, §1.] (1) How expenses of munici- pal light plant may be paid; dis- cretionary with council. Op. Atty. Gen. (1917), p. 308. Street Commissioner. Sec, 4363. [Appointment, term, qualification, vacancies.]* The street commissioner shall be appointed by the mayor and confirmed by council for a term of one year, and shall serve until his successor is appointed and qualified. He shall be an elector of the corporation. Vacancies in the office of street commissioner shall be filled by the mayor for the unexpired term. In any village the marshal shall be eligible to appoint- ment as street commissioner. [96 V. 84, § 203.] (1) Old section.—See old § 1706 R. S., repealed. Appointment to fill vacancy; confirmation—An appointment of street commissioner to fill a va- the village council the same as an appointment for the full term as prescribed by this section. State, ex rel. v. Burk, 20 C. C. (N. 8.), 399. caney requires confirmation by Sec. 4864, [General Duties.] Under the direction of coun- cil, the street commissioner, or an engineer, when one is so provided by council, shall supervise the improvement and repair of streets, avenues, alleys, lands, lanes, squares, wards, landings, market houses, bridges, viaducts, sidewalks, sewers, drains, ditches, culverts, ship channels, streams, and water courses. Such commissioner or engineer shall also supervise the lighting, sprinkling and cleaning of all public places, and 739 PUBLIC SERVICE. § 4365 shall perform such other duties consistent with the nature of his office as council may require.* (1) See notes under §§ 4325 and 4326, ante. City’s liability for negligence of engineer—Where a _ contract for the construction of a sewer provides that it shall be carried out at such times and at such [96 v. 84, § 203.] should be prescribed by the engi- neer or inspector, the city is li- able for injuries from negligence on theory of respondeat superior. Morrissey v. Cincinnati, 14 C. C. (N. 8.), 19 (aff’d, without report, 87,0. S. 525). places and in such manner as Sec. 4365. [Assistants.] Such street commissioner or engi- neer shall have such assistants as council may provide, who shall be employed by the street commissioner and shall serve for such time and for such compensation as is fixed by council. [96 v. 84, § 203. ] CITIES AND VILLAGES. Sec. 4366. [Duties of various officers; compensation.] In each municipal corporation having a fire engineer, civil engi- neer or superintendent of markets such officers shall each per- form the duties prescribed by this title and such other duties ‘not incompatible with the nature of his office as the council by ordinance requires, and shall receive for his services such compensation by fees, salary or both as is provided by ordi- nance. [R. S. Sec. 1782; 66 v. 176, §§ 164, 165. ] Sec. 4366-1. [City planning commission may be estab- lished.] The council of each city having a board of park commissioners may establish a city planning commission consisting of seven members, the mayor, the service director, the president of the board of park commissioners’ and four citizens of the municipality, who shall serve without compen- sation and who shall be appointed by the mayor, terms of six years each, excepting that the term of two of the mem- bers of the first commission shall be for three years. The council of each city without a board of park com- missioners may establish a city planning commission con- sisting of five members, the mayor, service director and three citizens of the municipality who shall serve without § 4366-1 THE OHIO MUNICIPAL CODE. 740) compensation and who shall be appointed by the mayor for a term of six years, except that the term of one of the mem- bers of the first commission shall be for four years and one for two years. [City planning commission for commission plan of govern- ment.] The commission of each city with a commission plan of government adopted as provided in sections 3515-1 to 3515-18 of the General Code of Ohio may establish a city planning commission consisting of five members, the chair- man of the commission and four citizens of the city to be appointed by the commission for terms of six years each, except that the term of two of the members of the first commission shall be four years and two for two years; all members to serve without compensation. [City manager form of government.] The council of each city with a city manager plan of government adopted as provided in sections 3515-1 to 3515-6 and 3515-19 to 3515-28 of the General Code of Ohio may establish a city planning commission consisting of five members, the chairman of council, the city manager and three citizens of the city who shall serve without compensation and who shall be appointed by the city manager for terms of six years each, except that the term of one of the members of the first commission shall be for four years and one for two years. [Council of each village may establish city planning com- mission.] The council of each village may establish a city planning commission consisting of five members, the mayor, one member of council, to be selected by the council for the remainder of his term as a member of council, and three citizens of the municipality to be appointed by the mayor for terms of six years each, except that the term of one of the members of the first commission shall be for four years and one for two years, all such members to serve without compensation. _ [Powers of the commission.] Whenever such a commis- sion is appointed, it shall have all the powers conferred in section 4344 of the General Code. Except as otherwise pro- 741 PUBLIC SERVICE. § 4366-2 vided in its charter, the city planning commission of a charter municipality created in the manner and as provided in or by virtue of authority granted by its charter, shall have the powers and the plan or plans made by it shall have the effect of a planning commission or a city plan created and made under and by virtue of the authority of this chap- ter. [110 v. 275; 110 v. 80; 106 v. 455.], (1) Planning Commission.—Per- no Board of Park Commissioners. sonnel of such commission when Op. Atty. Gen. (1916), p. 1150. Sec. 4366-2. [Powers and duties of commission.] The powers and duties of the commission shall be to make plans and maps of the whole or any portion of such municipality, and of any land outside of the municipality, which in the opinion of the commission bears relation to the planning of the municipality, and to make changes in such plans or maps when it deems same advisable. Such maps or plans shall show the commission’s recommendations for new streets, al- leys, ways, viaducts, bridges, subways, parkways, parks, play- grounds, or any other public grounds or public improve- ments; and the removal, relocation, widening or extension of such public works then existing. With a view to the syste- matic planning of the municipalities, the commission may make recommendations to the mayor, council and department heads concerning the location of streets, transportation and communication facilities, public buildings and grounds. The commission shall have the power to control, preserve and eare for historical land marks; to control in the manner provided by ordinance the design and location of statuary and other works of art, which are or may become the prop- erty of the municipality; and the removal, relocation and alteration of any such works belonging to the municipality ; and the design of harbors, bridges, viaducts, street fixtures and other public structures and appurtenances. Whenever the commission shall have made a plan of the municipality, or any portion thereof, no public building, street, boulevard, parkway, park, playground, public ground, canal, river front, harbor, dock, wharf, bridge, viaduct, tunnel, utility (wheth- er publicly or privately owned) or part thereof shall be constructed or authorized to be constructed in the munici- § 4366-3 THE OHIO MUNICIPAL CODE. 742 pality of said planned portion of the municipality until and unless the location thereof shall be approved by the com- mission; provided that in case of disapproval the commis- sion shall communicate its reasons for disapproval to coun- cil, and the department head of the department which has control of the construction of the proposed improvement or utility; and council, by a vote of not less than two-thirds of its members and such department head shall together have the power to overrule such disapproval. The narrowing, ornamentation, vacation or change in the use of streets and other public ways, grounds and places shall be subject to similar approval, and disapproval may be similarly overruled. The commission may make recommendations to any public authorities or to any corporations or individuals in such mu- nicipality or the territory contiguous thereto, concerning the location of any buildings, structures or works to be erected or constructed by them. [106 v. 455. | Sec. 4366-3. [Planning commission shall be platting com- mission.] The municipal planning commission shall be the platting commission of the municipality, and all the powers and duties provided by law for platting commissioner or commissioners of municipalities shall upon the appoint- ment of a municipal planning commission under this act, be deemed transferred to such commission. [106 v. 455.] Sec. 4366-4. [Control as to buildings.] Council may au- thorize the commission to control the height, design and lo- cation of buildings. [106 v. 455.] Sec. 4366-5. [Employment of architects and engineers. ] The commission shall have power to control, appoint or em- ploy such architects, engineers and other professional service, and to appoint such clerks, draughtsmen and other subordi- nates as it shall deem necessary for the performance of its functions; the expenditures for such service and employments to be within the amounts appropriated for such persons by the council of the municipality; and council shall provide ‘for the expenses and accommodations necessary for the work of the commission. [106 v. 455.] 743 PUBLIC SERVICE. § 4366-7 Sec. 4366-7. [Division of municipality, into zones; appoint- ment of planning commission.]+ The city planning commis- sion of any municipality shall have the power to frame and adopt a plan or plans for dividing the municipality or any portion thereof into zones or districts, representing the recom- mendations of the commission, in the interest of the public health, safety, convenience, comfort, prosperity or general welfare, for the limitations and regulation of the height, the bulk and location (including percentage of lot oceu- pancy, set back building lines, and area and dimensions of yards, courts and other open spaces), and the uses of build- ings and other structures and of premises in such zones or districts. The council of any village is hereby empowered to create and appoint a planning commission with the pow- ers set forth in this act. [108 v. 1175.] (1) See notes to § 4366-11, post. Sec. 4366-8. [Restriction in location of buildings and structures; regulations may be imposed.] Whenever the city planning commission of any municipality or any board or officer with city planning powers, whether such commission, board or officer is created under state statute or municipal charter, or the planning commission of any village appointed under the provisions of section 4366-7, certifies to the coun- cil or other legislative body of the municipality any such plan for the districting or zoning of the municipality accord- ing to the uses of buildings and other structures and of prem- ises, then said council or other legislative body, in the in- terest of the promotion of the public health, safety, conven- ience, comfort, prosperity or general welfare, may regulate and restrict the location of buildings and other structures and of premises to be used for trade, industry, residence or other specified uses, and for said purposes divide the munici- pality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this see- tion. For each of such districts regulations may be imposed designating the kinds or classes of trades, industries, resi- dences or other purposes for which buildings or other struc- tures or premises may be permitted to be erected, altered or used subject to special regulations. [108 v. 1175.] § 4366-9 THE OHIO MUNICIPAL CODE. 744 Sec. 4366-9. [When council may regulate and limit height of buildings and structures.] Whenever any such planning commission, board or officer certifies to such council or other legislative body any such plan for the districting or zoning of the municpality according to the height of buildings and other structures, then such council or other legislative body, in the interest of the promotion of the public health, safety, con- venience, comfort, prosperity or general welfare, may regu- late and limit the height of buildings and other structures thereafter erected or altered and for said purpose divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section. Any such regulation imposing a lower height limitation than may be provided by state statute shall, within the district for which it is imposed, prevail over the said limitation provided by state statute. [108 v. 1175.] Sec. 4366-10. [When council may regulate bulk and loca- tion, percentage of lot occupancy, set back buildings, etc.] Whenever any such planning commission, board or officer certifies to such council or other legislative body any such plan for the districting or zoning of the municipality accord- ing to the bulk and location of buildings and other struc- tures (including percentage of lot occupancy, set back build- ing lines, and area of yards, courts and other open spaces), then such council or other legislative body may, in the inter- est of the promotion of the public health, safety, convenience, comfort, prosperity or general welfare, regulate the bulk and location of buildings and other structures thereafter erected or altered, the percentage of lot occupancy, set back building lines and the area of yards, courts and other open spaces and for said purposes may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section. Any such regula- tion imposing a less percentage of lot occupancy, wider or larger courts, deeper yards or other more strict limitations than those provided by state statute shall within the district for which it is imposed, prevail over the said limitations pro- vided by state statute. [108 v. 1175, 1176.] 745 PUBLIC SERVICE. § 4366-11 Sec. 4366-11. [Districting or zoning based upon, what; classification of buildings and structures.] The districting or zoning of any municipality or part thereof may be based upon any combination of two or more of the purposes de- scribed in the foregoing three sections. In the determination and establishment of districts as above provided, buildings and other structures may be classified on the basis of the nature or character of trade, industry, profession or other activity conducted or to be conducted therein, the number of persons, families or other group units to reside in or use them, the public, quasi-public or private nature of the use thereof, or upon any other basis or bases relevant to the promotion of the public safety, health, morals, convenience, prosperity or welfare.t The council or other legislative body may, from time to time, amend or change the number, shape, area or regulations of or within any district or districts; but no such amendment or change shall become effective un- less the ordinance proposing such amendment or change shall first be submitted to the planning commission, board or officer for approval, disapproval or suggestions and the plan- ning commission, board or officer shall have been allowed a reasonable time, not less than thirty days, for consideration and report. The council or other legislative body may cre- ate an administrative board to administer the details of the application of the regulations and may delegate to such board, in accordance with general rules and regulations to be set forth in the districting ordinances and regulations, the power to hear and determine appeals from refusal of build- ing permits by building commissoners or other officers, to permit exceptions to and variations from the district regulations in the classes of cases or situations specified in the regulations and to administer the regulations as specified therein; or these administrative powers and functions may be delegated by the council or other legislative body to the planning commission or board. Before any ordinance, measure or regulation author- ized by this and the three foregoing sections may be passed, the council or other legislative body shall hold a pub- lic hearing thereon, and shall give thirty days’ notice of the § 4366-12 THE OHIO MUNICIPAL CODE. 746 time and place thereof in a newspaper of general circulation in the municipality; and during said thirty days the text or eopy of the text of such ordinance, measure or regulation, together with the maps or plans or copies thereof forming part of or referred to in said ordinance, measure or regu- lation and the maps, plans, and reports submitted by the planning commission, board or officer shall be on file, for public examination, in the office of the clerk of the council or other legislative body or in such other office as may be designated by the council or other legislative body. No such ordinance, measure or regulation which violates, differs from or departs from the plan or report submitted by the plan- ning commission, board or officer shall take effect unless passed or approved by not less than three-fourths of the full membership of the council or other legislative body. [108 v. LAND SET O (1) When regulations not en- forcible-——When the refusal by a buildings already existing or about to be constructed which are not per city to permit the construction of a garage is based on an ordinance providing “except when the com- missioner of buildings otherwise approves, minor garages shall be located to the rear of the established line of the houses facing the street” and the question of the public morals, safety, health and_ public welfare are not involved, such re- fusal is not a valid exercise of the public power and interference with the construction will be enjoined. Meade v. Cincinnati, 32 O. C. A. 175) 14 Oh. Apps 412: No zoning system can be made safe from attack which is founded on purely esthetic reasons. Nor can refuge be taken from such a system under the police power, where it is sought to apply the prohibition to Sec. 4366-12. se a nuisance, unless provision is made for appropriation of the prop- erty thus affected or payment of such damage as may be sustained. Lucas v. State, ex rel., O. L. R., Dee. 31, 1923, page 363. Zoning ordinance.—Validity of zoning ordinance sustained. See State, ex rel., v. Durant, O. L. R., Jan. 14, 1924. For general discussion and au- thorities as to the validity of zoning ordinances, see Treatise by Alfred Bettman, O. L. R., March 19, 1923, and also Treatise by Archibald H. Throckmorton, O. L. R., September 24, 1928, page 251. For decision of U. S. Dist. Ct. holding zoning ordinance unconsti- tutional, see Realty Co. v. Euclid, QO. L. R.,. Mch.,17, 1924, p. 607, [Foregoing sections shall not modify any power granted by law or charter.] Nothing contained in the foregoing sections 4366-7 to 4366-11 inclusive shall be deemed to repeal, reduce or modify any power granted by law or charter to any municipality, council or other legislative body 747 | PUBLIC SERVICE. §4366-13 of a municipality nor to impair or restrict the power of any municipality under article XVIII of the constitution of Ohio. [Section or provision held unconstitutional shall not affect others.] Should any section or provision of this act be de- cided by the courts to be unconstitutional or invalid, the | same shall not affect the validity of the act as a whole or any part thereof other than the part so decided to be unconstitu- tional. Nothing herein shall be construed as authorizing a munici- pality to reserve the use of any private property for future public use for the purpose of extending or widening streets. [108 v. 1175, 1177.] Sec. 4366-13. [Regional planning commissions; employees thereof; expenses.] The city planning commissions of any municipality or group of municipalities, and the county commissioners of any county or counties in which such municipality or group of municipalities is located or any adjoining county or counties may co-operate in the crea- tion of a regional planning commission for any region de- fined as may be agreed upon by said planning commissions and county commissioners, exclusive, however, of any ter- ritory within the limits of a municipal corporation ‘not having a city planning commission. The number of mem- bers of such commission, their method of appointment and the proportion of the costs of such regional planning to be borne respectively by the various municipalities and counties in the region shall be such as may be determined upon by said planning commissions and county commis- sioners. Such county commissioners and the councils or other legislative bodies of such municipalities are hereby authorized to appropriate their respective shares of such costs. The sums so appropriated shall be paid into the treasury of the county in which the greater portion of the region is located and shall be paid out on the certificate of the regional planning commission and the warrant of the auditor of such county for the purposes herein author- ized. Within the amounts thus agreed upon and duly ap- propriated, said regional planning commission may em- § 4366-14 THE OHIO MUNICIPAL CODE. 748 ploy such engineers, accountants and other employes as may be necessary. [110 v. 310.] Sec. 4366-14. [Organization and maintenance; terms of members.] The board of county commissioners of any county may and, on petition of the city planning commissions of a majority of the municipalities in such county having such planning commission, shall provide for the organization and maintenance of a county planning commission. Such plan- ning commission shall consist of eight citizens of the county appointed by the board of county commissioners, together with the members of the board of county commissioners. If the population of any city in the county exceeds fifty per cent of the total population of the county, then at least three of the appointive members shall be selected from persons nominated by the city planning commission of such city. The appointive members shall be appointed for terms of three years, except that of the eight members first appointed, three shall be appointed for terms of two years and two shall be appointed for a term of one year. The members shall serve without pay. The county planning commission may employ such engineers, accountants and other employes as may be necessary. ‘Their compensation and the expenses of the ap- pointive members of the county planning commission shall be paid from appropriations made by the county commis- sioners. [110 v. 310, 311.] Sec. 4366-15. [Powers and duties.] The powers and du- ties respectively of a regional or county planning commis- sion shall be to make plans and maps of the region or county respectively, showing the commission’s recommendation for systems of transportation, highways, park and recreational facilities, the water supply, sewerage and sewage disposal, garbage disposal, civic centers and other publie improve- ments which affect the development of the region or county respectively as a whole or more than one political unit with- in the region or county and which do not begin and termi- nate within the boundaries of any single municipality. [110 v. 310, 311.] 749 PUBLIC SERVICE. §4366-16 Sec. 4366-16. [Certified copies of plans to each munici- pality.] The regional planning commission of any region or county planning commission of any county, shall, after mak- ing the regional or county plan, certify a copy thereof to the city planning commission of each municipality of the region or county and the county commissioners of each county or part of county included in the plan. In the event of the subsequent creation of a city planning commission for any municipality within a county having a county planning commission, or for any municipality subsequently incorpo- rated within the area of a region having a regional planning commission, a copy of the county plan shall be immediately certified to such city planning commission. [110 vy. 310, 311.] Sec. 4366-17. [Effect of adoption of plans.] The city plan- ning commission of any municipality to which a regional or county plan is so certified, may adopt such plan, and it shall thereupon and thereafter have the same force and effect within such municipality as is provided by law or charter for plans prepared and adopted by the local planning com- mission. The county commissioners of any county may adopt such plan so far as: it relates to non-municipal territory. Thereafter no public building, roadway, bridge or viaduct or other public improvement or utility (whether publicly or privately owned), whose construction or location would con- stitute a departure from the plan, shall be constructed or authorized by the county commissioners except by unani- mous vote. Such plans shall not designate the specific lots or parcels of land upon which said system, facilities, build- ings and improvements are proposed to be placed, but only the general site or location thereof. The effect of the adop- tion of such plan by the county commissioners shall cease as regards the location of any sewage or garbage disposal plant and no official action of the county commissioners shall be controlled thereby in such respect, unless the site shown on the plan as the location of such plant is purchased within six months after the adoption of such plan by the county commissioners, or unless proceedings for the appropriation of the necessary property are commenced within such period §4366-18 THE OHIO MUNICIPAL CODE. 750 of six months and such property is then or thereafter appro- priated in such proceedings. [110 v. 310, 312.]' Sec. 4366-18. [County surveyor shall assist.] The county surveyor of the county or counties, for which any regional or county planning commission has been organized, shall give, within the scope of his resources and without interference with his regular duties, such assistance to the commission as may be requested by it. [110 v. 310, 312.| Sec. 4366-19. [Plans to be filed with county recorder.] Whenever a county or regional plan is adopted by a city planning commission or by the county commissioners, the fact of such adoption shall be certified by the adopting authority to the regional or county planning commission, as the case may be. Thereupon such regional or county plan- ning commission shall deposit a copy of so much of such regional or county plan as is affected by such adoption in the office of the county recorder; but in case such plan shows a recommendation as to the location of a sewage or garbage disposal plant, such deposit shall not be made until after six months from and after the adoption of such plan, and when so deposited the copy of such plan shall also state the action or non-action of the appropriating authority with re- spect to the purchase or appropriation of property for such plant, as provided in section 5 of this act. [110 v. 310, olga PUBLIC SAFETY. § 4367 751 CHAPTER 9. PUBLIC SAFETY. CITIES. Department of Public Safety. Sec. 4367. [Director of public safety.]' In each city there shall be a department of public safety, which shall be admin- istered by a director of public safety. The director of public safety shall be an elector of the city, and he shall be appointed by the mayor and shall serve until his successor is appointed and qualified? [99 v. 564, § 146; 96 v. 68, § 146.] Merger of service and safety (1) Old sections.—Compare old departments in certain cities. See §§ (1545-40) R. S. (Director cf Police, Cleveland) ; (1545-48) R. S. (Director of Fire Service, Cleve- land); (1545-134) R. S. (Director of Public Safety, Columbus) ; (1545-208) R. S. (Police and Fire Board, Springfield); (1545-270), (1545-275) R. S. (Board of City Commissioners, Akron and Youngs- town); (1545-296) R. S. (Depart- ment of Police, and Department of Public Safety, Hamilton); §§ 1870 and 2436 R. S. (Police Commission- ers and Fire Trustees, Cincinnati), all repealed. § 4250, ante. Director of safety may be clerk of council. Op. Atty. Gen. (1915), p. 428. (2) Former section 146 of the Municipal Code, as originally en- acted, provided for a board of pub- lic safety consisting of from two to four directors, as council should de- termine. As to constitutionality of former provision authorizing council to determine number of directors, see Zumstein v. Mullen, 67 O. 'S. 382. Sec. 4368. [General duties; records.]' Under the direction of the mayor, the director of public safety shall be the execu- tive head of the police and fire departments. He shall be the chief administrative authority of the charity, correction and building departments. He shall have all powers and duties connected with and incident to the appointment, regulation and government of these departments except as otherwise provided by law. He shall keep a record of his proceedings, a § 4369 THE OHIO MUNICIPAL CODE. 752 copy of which certified by him shall be competent evidence in all courts. [96 v. 69, § 148; 96 v. 70, § 150; 99 v. 564, § 147; 96 v. 69, § 147.] (1) Old sections relating to po- lice boards and officers were former- ly contained in Chap. 5, Div. 5,’ Ti- tle XII, R. S., §§1870 to (2030- 23) R. S., all repealed. And see note (1) under § 4367, supra. Old sections relating to the fire department were formerly contained in Chap. 2, Div. 8, Title XII, R. S., §§ 2436 to (2477-91) R. S., all re- pealed, Sec. 4369. [Contracts, how made.] The director of public safety shall make all contracts in the name of the city with reference to the management of such departments, and for the erection or repair of all buildings or improvements in con- nection with, and for the purchase of all supplies necéssary for, such departments, subject to the restrictions imposed by law.? [99 v. 564, § 147; 96 v. 69, § 147.] (1) Contracts. post, and note. Employing attorney.—It was held, under former statutes, that the board having charge of police de- partment may employ such counsel as it may select, when necessary to — See § 4871, missioners, 2 C. C. 406, aff’d, 25 B. 336. Director of public safety has no authority to employ, at public ex- pense, counsel to defend his title to the office, and counsel cannot confer such authority upon him. State, ew preserve or secure the fund en- trusted to its control. Yaple v. Com- rel., v. Noble, 9 N. P. (N. 8S.) 609; 20 Dec. 308. Sec. 4370. [Shall be manager of certain institutions.] The director of public safety shall manage, and make all contracts in reference to the police stations, fire houses, reform schools, - houses of correction, infirmaries, hospitals, workhouses, farms, pest houses, and all other charitable and reformatory institu- tions. In the control and supervision of such institutions, the director shall be governed by the provisions of this title re- lating to such institutions. [99 v. 564, § 147; 96 v. 68, § 147.] (1) Contagion hospital.— Right of a municipality to purchase land for. p. 2454, Op. Atty. Gen. (1917), ‘Sec. 4371. [Powers of director to make contracts.] The director of publie safety may make all contracts and expen- ditures of money for acquiring lands for the erection or re- 753 PUBLIC SAFETY. § 4372 pairing of station houses, police stations, fire department build- ings, fire cisterns, and plugs, that may be required, and for the purchase of engines, apparatus, and all other supplies neces- sary for the police and fire departments, and for other ander- takings and departments under his supervision, but no obliga- tion involving an expenditure of more than five hundred dollars shall be created unless first authorized and directed by ordinance of council. In making, altering, or modifying such contracts, the director of public safety shall be governed by the provisions of the preceding chapter relating to public contracts, except that all bids shall be filed with and opened by him. He shall make no sale or disposition of any property belonging to the city without first being authorized by resolu- tion or ordinance of council.? [99 v. 564, § 154; 96 v. 71, § 154. ] (1) Contracts. — See §$§4328- city, when. Op. Atty. Gen. (1912), 4334, ante, and notes and forms _ p. 432. thereunder. See also § 4403, post. (2) Sales and leases of municipal Traveling expenses.— Expenses property, see also §§ 3698, 3699, of city officers may be paid by 3703, 3704 and 4403. Police and Fire Departments. Sec. 4372. [Chief of police.]! The chief of police shall have exclusive control of the stationing and transfer of all patrol- men and other officers and employes in the department, under such general rules and regulations as the director of public safety prescribes. [96 v. 69, § 148.]. (1) Suspension and removal of Chief of police may not act as chief, see §§486-17, 486-17a un- probationer officer. See Op. Atty. der ‘‘Civil Service’’, in Part II. Gen. (1922), p. 108. Sec. 4373. [Emergency patrolmen.] In case of riot or other like emergency, the mayor may appoint additional patrolmen , and officers for temporary service,t who need not be in the classified list of such department. Such additional officers or patrolmen shall be employed? only for the time during which the emergency exists. [96 v. 69, § 148.] (1) Council may approve bills thority from ordinance or resolu- for detectives employed by mayor tion. Op. Atty. Gen. (1918), p. and safety director without au- 1046. § 4374 (2) Municipal obligation.—The word, ‘‘employed”’ implies reciprocal duty and obligation on the part of the city to compensate such emer- gency patrolmen, and a bank which furnishes funds for such purpose will THE OHIO MUNICIPAL CODE. 754 be subrogated to the rights of such emergency patrolment, and it may recover the money from the munici- pality. Youngstown v. National Bank, 106 O. S. 563. Sec. 4374. [Police department; how composed.] The po- lice department of each city shall be composed of a chief of police and such inspectors, captains, lieutenants, sergeants, corporals, detectives, patrolmen, and other police court officers, station house keepers, drivers, and substitutes, as are provided by ordinance or resolutioneof council} (1) Organizing police and fire departments.—The Code requires the council to fix the number, sala- ries and bonds of all officers and other members of the police and fire departments, and the departments so established are to be classified by the director of public safety. (§§ 4214, 4219, 4374 and 4382.) The police department must consist of a chief of police, and such inspectors, cap- tains, lieutenants, sergeants, corpo- rals, detectives, patrolmen, police court officers, station house keepers, drivers and substitutes as council determines in its ordinance. The fire department must consist of a chief of the fire department, and such marshals, assistant marshals, firemen, telephone and_ telegraph operators as council determines in its ordinance. Forms for these two ordinances are given hereunder and under § 4377, post. Council may also provide for other officers, surgeons, secretaries, clerks and employes under the di- rector of public safety, and fix their salaries and bonds. §§ 4375 and 4377. As to what positions are to be re- garded as within the classified ser- vice, see §§486-1 et seq. under *¢ Civil Service’’, Part IT. [96 v. 70, § 149.] Council, in reorganizing the de- partment, may reduce the number of officers, etc., and may do this with- out regard to the seniority of the members of the departments. State, ex rel., v. Searcey, 31 C. C. 83; 11 C. C. (N. 8S.) 521, (aff'd, 80 O. S. 740). Members in office at the time the Municipal Code went into effect have no preference over those sub- sequently appointed. Ib. When number of patrolmen has been reduced by council, the police force may be reclassified regardless of length of service of its members. State, ew rel., v. Searcy, 31 C. C. 83; Il C, °C." (NI S.) S21. ea ee O. S. 740). A municipal council has au- thority to pass an ordinance pro- viding for the number, salaries and bonds of members of the po- lice department, repealing at the same time the former ordinance under which the department was operated; and where such action is taken by council, all mem- bers of the police foree lose their positions as of the date of the repeal of the former ordinance under which the department was theretofore operated, and it there- after becomes the duty of the 755 director of public safety to ap- point members of the force under the contemplated reorganization and upon such terms as council has provided. State, ew rel. V. PUBLIC SAFETY. § 4375 Director of public safety has authority to make rules for days off of policemen; council has same authority for firemen. See Op. Atty. Gen. (1919), p. 83. Bish, 12 N. P. (N. S.), 369. FORM OF ORDINANCE ORGANIZING POLICE DEPARTMENT. Ordinance No.........+:. Fixing the number, salaries and bonds of members of the police depart- ment. Be it ordained by the council of the city of........--..eeeeee eee State of Ohio: Sec, 1. That the police department of the city of.........-+--++++: shall be composed of the following officers and other members, who shall receive the respective salaries hereinafter provided, payable. J. .\Acra che. out of the police fund of the city, and shall give the respective bonds hereinafter required: 1. A chief of police, who shall receive $.......-.-+-. per annum, and shall give bond in the sum OTM, Sak cactaietels shee hex PP esa ee eee inspectors of police, ete. ah. pocadied one captains, etc. AGMA CERES lieutenants, etc. 37, Shea Se a Cini conseaNs sergeants, etc. eR hs Oe oe corporals, ete. ae ee aiehyy syehahe ciate rete detectives, etc. Semmes «tale 363 Ale (ois patrolmen, ete. (Enumerating such force as is desired by council.) Sec. 2. The police department as constituted herein shall be classified, by the director of public safety, as required by law. See. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law. IPS SE is co clbis Ube ere SNe. sire ase oes ol e'g MS Eae ene e166 ele @ = 0 4160 bos 6 0 616 5) Sue: Attest: President of Council. Cr Clerk. Nore.—An ordinance providing for other officers, surgeons, secretaries, clerks, ete., under director of public safety, as authorized by § 4375, may be adapted from the above. Sec. 4375. [Control of, by director of public safety.] The director of public safety shall have the exclusive management and control of all other officers, surgeons, secretaries, clerks and employes as are provided by ordinance or resolution of council. He may commission private policemen,* who may not § 4376 THE OHIO MUNICIPAL CODE. 3 756 be in the classified list of the department, under such ruleg and regulations as council prescribes. [96 v. 70, § 149.] (1) Employment of guard.—Or- cept under certain restrictions, dinance forbidding employment of held invalid. In re Reilly, 23 N. during industrial disturbance ex- P. (N.S.) 65. Sec, 4376. [Chief of fire department.]} The chief of the fire department shall have exclusive control of the stationing and transferring of all firemen and other officers and employes in the department, under such general rules and regulations as the director of public safety prescribes. In case of riot or other like emergency the mayor may appoint additional firemen and officers for temporary service who need not be in the classified list of the department. Such additional officers or firemen shall be employed only for the time during which the emergency exists. [96 v. 70, § 150.] (1) Suspension and removal of chief, see §$§ 486-17, 486-17a un- der ‘‘Civil Service’’, in Part II. Sec. 4377. [Fire department; how composed; control.]! The fire department of each city shall be composed of a chief of the fire department and such marshals, assistant marshals, firemen, telephone and telegraph operators as are provided by resolution or ordinance of council. The director of public safety shall have the exclusive management and control of such other officers, surgeons, secretaries, clerks, and employes as are provided by ordinance or resolution of council. [96 ¥--70,8:1502] (1) Director of public safety same authority for firemen. See has authority to make rules for Op. Atty. Gen. (1919), p. 83. See days off of policemen; council has § 4393, post. FORM OF ORDINANCE ORGANIZING FIRE DEPARTMENT. Ordinance No............ Fixing the number, salaries and bonds of membérs of the Fire Department. Be it ordained by the Council of the ORGY OF. his saat al «ve ’ State of Ohio: Section 1. That the fire department of the city of..............00- ’ shall be composed of the following officers and other members, who shall receive the respective salaries hereinafter provided, payable! s\n.) veel. «am ) 757 PUBLIC SAFETY. § 4378 1. -C.L (Sap OTs (aff'd 70 O. 8. 507); Fitzsimmons Tel... Co... ‘v;.. Cineinnati,s 2 N:P: (N.S.) 51; Farmer v. Telephone Co., 72 0.8. 526. Municipality cannot fix tele- phone’ rates.—Municipality is without power to fix the rates to be charged or to require free tele- ———— 907 phones to be furnished the munici- pality, and the telephone company is not estopped, by agreeing to such terms, from increasing the rates or refusing free telephones, Farmer Vv. Telephone Co., 72 O. S. 526. See also Mackin v. Telephone Co., 24 C. C. 446, 453; 1 C. C. (N.S.) 373 (aff’d 70 O. 8. 507); but a differ- ent rule applies where municipal- ity has granted rights to lay un- derground conduits. Columbus v. Telephone Co., 28 O. C. A. 102; and see notes to $9197, post. Revocation of right.—See Cin- cinnati v. Cin. Edison Co., 26 B. 104. (3) Failure to agree.—A peti- tion which shows no specific ques- tions of difference between the cor- poration and the municipal author- ities, but alleges in that behalf only that they have failed to agree on the mode of use of the streets, and prays for a general judgment direct- ing in what mode plaintiff may con- struct its telephone lines along the streets, does not state facts justify- ing any order or judgment in its favor. Queen City Telephone Co. v. Cincinnati, 73 O. 8. 64. Failure to agree as to price to be charged patrons for instruments is not such failure to agree as to mode of use contemplated by this section. State ex rel. v. Telephone Co., 14 C. C. 273. As to what is unreason- able delay to enter into agreement, see Cincinnati Telephone Co. v. Cin- cinnati, 48 B. 986. (4) Validity—This section is not unconstitutional because it con- fers on the Probate Court the power to fix terms for use of streets by telegraph companies. Zanesville v. Telegraph & Telephone Co., 64 O. 5. 67. TELEGRAPH AND TELEPHONE COMPANIES. ' thorities. §$ 9178 Probate court has jurisdiction to make order directing mode of use as provided in this section. Jb. Use by another company.—‘ee Hauss Elec. Co. v. Jones Bros. Elec. Co., 23 B. 187. Franchise by Probate Court, cannot require telephone company to put its wires and apparatus in con- duits under the streets, in the ab- sence of consent by municipal au- Queen City Telephone Co. v. Cincinnati, 73 O. S. 64; contra, Cincinnati Telephone Co. v. Cincin- nati, 49 B. 83; Cleveland Telephone Co. v. Chagrin Falls, 14 Dec. 449; Telephone Co. v. Middletown, 2 N. P. (N.S.) 455. The function of the probate court is strictly limited to fixing the mode of use and it cannot fix the length of the grant or the extent of the use. Cleveland Telephone Co. v. South Newburgh, 4:N. P. (N.S.) 624," -b2 Ball és. Lae tix: the rates to be charged by the com- pany. State ex rel. v. Toledo Home Telephone Co., 72 O. 8. 60. A company is not estopped to question validity of court’s order fixing rates because the rates were fixed by court’s order upon applica- tion of the company. I0. Company seeking franchise must prove incorporation and due and le- gal election of directors. Queen City Telephone Co. v. Cincinnati, 73 0. S. 64. In proceeding in probate court to fix mode of use of streets by tele- phone company, a competing com- pany is not a proper party, and has no right to intervene or prosecute error. Sidney Telephone Co. v. Farmers Telephone Co., 21 Dec. 241, LL NigP: CNS) 424. Nor can § 9179 THE OHIO MUNICIPAL CODE. 908 Sec, 9179. [Compensation only for damages.] Nothing in the preceding section shall authorize a municipal corporation to demand or receive compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness. [R. S. Sec. 3461; 62 VTS (SSG. Oo oad Sec, 9191. [Chapter applies to telephone companies.]+ The provisions of this chapter apply also to a company organized to construct a line or lines of telephone; and every such com- pany shall have the powers and be subject to the restrictions herein prescribed for magnetic telegraph companies.? [R. 8. See. 3471. ] (1) See note (1) to §9178 G. C., company even without statutory pro- ante. vision. Railway v. Telegraph Ass’n, (2) The term “telegraph” was 48 O. S. 390, 423. held sufficient to embrace telephone Sec, 9197. [Ordinances, validity of.] Any company organized under the laws of this or of any other state, and owning and operating a telephone exchange, or doing a telegraph business, in any city or village in this state, may construct and maintain under-ground wires and pipes, or conduits and other fixtures for containing, protecting and operating such wires in the streets and public ways of such city or village in the state, when the consent of such city or village has been obtained therefor.’ Any ordinance of any village purporting to grant the right or privilege to any telephone or telegraph company to construct and maintain underground wires and pipes, or conduits and other underground fixtures for containing, pro- tecting and operating such wires, in the streets and public ways of such village, and which grant has been accepted, or | when money has been expended in good faith on account thereof, is hereby declared to be valid and effective, any law, or part of law, to the contrary notwithstanding. [100 v. 85, §§1, la.] (1) Conditions of grant.— use the streets for sub-surface con- Municipality may require telephone — struction, to pay the municipality company, as condition to consent to a percentage of gross earnings on 909 the company’s business. Columbus v. Columbus Citizens Telephone Co., 21 Dec. 273; 10 N. P. (N.S.) 483. The limitation on the power of the municipality to demand com- pensation for the use of the streets for overhead wires, does not apply to a right granted for underground construction under § 9197. Colum- bus v. Columbus Citizens Telephone Co., 21 Dee. 273; 10 N. P. (N.S.) 433. Underground conduits. — Ordi- nance not accepted by the com- pany or acted under by it, is sub- ject to revocation. State ex rel. v. Norwood, 23 C. C. (N. S.) 145. Controversy not determined by mandamus.—A controversy be- tween a municipality and a tele- phone company as to the right of the latter to be granted a per- mit to lay conduits in certain streets can not be determined in a mandamus proceeding. State ex rel. v. Norwood, 23 ECOG. EN. 8.) 145. Power to fix rate—The use of the streets of a municipality by a telephone company, including the use of the subsurface for a con- duit system, constitutes a suffi- cient consideration to render bind- ing a provision in the franchise TELEGRAPH AND TELEPHONE COMPANIES. £9198 ordinnance which fixes telephone rates within the corporate limits, and such a provision is enfore- ible both on behalf of the city and of private consumers located within its limits. Columbus v. Telephone Co., 28 O. OC. A. 102; 13 Oh. App. 32; 39 O. C. C. 297; but where the conduit system has been extended under orders from _an authorized officer of the muni- cipality, the company may equit- ably increase its rates within the limits permitted by the franchise ordinance in the event of conduit extensions. Ib. For extended discussion on the rights of company and municipality under such a grant bearing on right to'increase rates, see Columbus v. Pub. Util. Com., 103 O. S. 79. Company bound by all terms of franchise—A company which has accepted a franchise, including a provision as to rates, will not be permitted to retain the favorable provisions and at the same time eliminate one which unanticipated cost and unprofitable operation has rendered burdensome. Colum- bus v. Telephone Co., 28 O. C. A. = PS To same effect see Columbus v. Pub. Util. Com., 103 O. S. 79. Sec, 9198. [Consent, by whom to be given.] Consent of a city or village to the construction and maintenance of under- ground wires and pipes, or conduits and other fixtures therefor, by a company owning and operating a telephone exchange or doing a telegraph business, shall be given by the council in cities or villages. [100 v. 85 § 2.] § 10157 THE OHIO MUNICIPAL CODE. 910 SEWERAGE COMPANIES. Sec. 10157. [Sewerage companies.] A company organized for the purpose of draining the streets, alleys, lots, commons, wharves, landings, or buildings of a city or village in this state, may construct and maintain sewers and drains, and lay conductors or pipe for conveying water and other liquid matter from the lots, houses, and streets, through and under the streets, sidewalks, public highways, alleys, commons, wharves, or landings of any such city or village. Upon application by such company the council of any city, or village, may grant to it the privilege of exercising its corporate powers within the limits thereof, for such term of years, and upon such conditions and limitations, as may be deemed expedient. The city council, or the council of the village, may require from the company such reasonable security as it deems necessary for the faithful performance of the duties imposed upon such company by law. [R. S. See. 3871; 53 v. 187 §5; (S. & O. 341).] Sec. 10158. [Grants and privileges prohibited.] No grant shall be made to such a company, and no power or privilege be conferred upon or exercised by it, which will interfere with the rights of any other corporation, or any person, nor shall any person be taxed without his consent for drainage or sewerage constructed by such company. Such companies shall be liable for all damages occasioned by their acts, neglects, or defaults to the rights of persons and other corporations. [R. S. Sec. 3871; 53 v. 187 §5; (8S. & O. 341).] Sec. 10159. [When municipality must purchase property of company.] When a city or village which has granted-to such a company, for any term, the rights and privileges herein mentioned, and, at the expiration of the term, upon petition of the company, fails or refuses to renew the grant, the city or village shall purchase of the company its property, consisting of sewers, drains, and pipes actually laid and constructed, with the appurtenances, and the materials and fixtures appertaining thereto, on hand at the time of the expiration of such term, at a price not exceeding the actual cost thereof, for the use and 911 SEWERAGE COMPANIES. § 10160 benefit of the city or village. [R. 8. Sec. 3872; 53 v. 137 $5; (S. & C. 341).] Sec. 10160. [Municipality may contract with company.] The council of any city, or village, in which such company is organized, may contract with it for the construction and use of such sewers or drains, for draining the streets, alleys, lots, commons, wharves, or grounds within the limits of the munic- ipal corporation. The city or village shall not use the sewers or drains in any manner except by and with the consent of the company, and in the manner, and upon the terms and conditions, which are inutually agreed upon by the company and the city or village. [R. S. Sec. 3873; 53 v. 137 §6; (8S. & CG. 342). | Sec, 10160-1. [Owners outside municipalities permitted to use sewers.] ‘The council of any city or village may permit the owners or association of owners of lots and lands abutting on roads or other highways entering such city or village to connect with and use the sewers of such city or village for carrying off sewage and drainage from such outside lots or lands upon such terms as may be agreed upon between such council and the owners or association of owners of such outside lots or lands. [102 v. 192.] Sec. 10161. [Company may prescribe rates.] Such com- panies may prescribe the terms upon which owners and ocecu- pants of houses or lots may’ obtain the use of their sewers and drains for private purposes, and the rate of charge annually for such use, and also the terms upon which the city or village may use the sewers and drains for public purposes. [R. 8: See. 3874; 53 v. 187 §7; (S. & C. 342).] Sec. 10162. [Powers of municipalities not limited.] Nothing in the five preceding sections shall prevent any city or village from constructing sewers, or establishing and maintaining a system of sewerage, under the direction and by the authority of the municipal authorities thereof, not interfering, however, with the work of such company. [R. 8S. See. 3875; 53 v. 1387 § 8; (S. & C. 342).] § 11220 THE OHIO MUNICIPAL CODE. 912 ADVERSE POSSESSION OF STREETS. Sec. 11220. [Real estate dedicated to public uses.] If a street or alley, or any part thereof, laid out and shown on the recorded plat of a city or village, has not been opened to the public use and occupancy of the citizens thereof, or other persons, and has been euclosed with a fence by the owner or owners of the inlots, lots or outlots lying on, adjacent to or along such street or alley, or part thereof, and has remained in the open, uninterrupted use, adverse possession and occu- pancy of such owner or owners for the period of twenty-one years, and if such street, alley, inlot or outlot is a part of the tract of land so laid out by the original proprietor or pro- prietors, the public easement therein shall be extinguished and the right of such city or village, the citizens thereof, or other persons, and the council of such city or village and the legal authorities thereof, to use, control or occupy so much of such street or alley as has been fenced up, used, possessed and occupied, shall be barred, except to the owners of such inlots or outlots lying on, adjacent to or along such streets or alleys who have occupied them in the manner aforesaid.t [R. S. See. 4977; 86 v. 300; 83 v. 74; T7 v. 303; 51 v. 57 § 9.] (1) See note “adverse possession” under § 3714, ante, in Part I. OBTRUCTIONS, DISTURBANCES, ETC., IN STREETS. Sec. 12634. [Unlawful use of air guns, etc.] Whoever shoots, forces or throws by the means of an air gun or other arm or implement, a lead, iron or other hard substance upon a street, alley, lane or public place, shall be fined not less than one dollar nor more than twenty-five dollars. [91 v. 86; Bates, 6980-1. ] Sec. 12635. [Racing or shooting on streets.] Whoever runs a horse, or shoots or fires a gun or pistol at a target within the limits of a municipal corporation, shall be fined not less than five dollars nor more than fifty dollars. [R. S. See. 7007; 29 v. 161 §6; (S. & C. 448).] 913 OBSTRUCTIONS IN STREETS. § 12636 Sec. 12636. [Firing cannon or exploding gunpowder on street.] Whoever, except in case of invasion by a foreign enemy, or to suppress insurrection or mob, or for the purpose of raising the body of a person drowned, or for the purpose of blasting or removing rock, fires a cannon, or explodes, at one time, more than four ounces of gunpowder upon a public street or highway, or nearer than ten rods thereto, shall be fined not less than five dollars nor more than fifty dollars. [R. S. See. 7004; 48 v.17 §1; (S. & C. 451).] Sec, 12639. [Obstructions on public sidewalks.] Whoever sets up a table, stand, tent, wagon or other article, to use or let for profit, on a public footwalk or sidewalk constructed according to law by a person, board of education, the council of a municipal corporation, the trustees of a cemetery associa- tion, the trustees of a township or an agricultural or religious society, or rides, drives, leads or hitches a horse or other animal on such footwalk or sidewalk, or obstructs it or digs up or removes any of the material of which it is composed, shall be fined not less than five dollars nor more than twenty-five dollars, or imprisoned not more than ten days, or both. [R. 8. Sec. 6884; 89 v. 234, 70; 79 v. 181; 77 v. 145; 71 v. 105 § 2.] Sec, 12644. [Unlawfully stringing wires, etc., for conducting electricity.] Whoever places, strings, constructs or maintains a line, wire, fixture or appliance of any kind for conducting electricity for lighting, heating or power through a street, alley, lane, square, place or land in a city or village without the consent of such city or village, shall be fined not less than one hundred dollars nor more than five hundred dollars. This section shall extend to all levels above, below and along the surface of public ways, grounds or places, but shall not apply to rights which have been received and exercised heretofore through proceedings in a probate court. [R. 8. See. 347la; 92 v. 204; 84 v. 7.] Sec, 12645. [Erecting poles in cities having subways.] Who- ever erects a telegraph or telephone pole within that portion of a city or village where subways have been constructed, unless such pole is required for the purpose of distributing § 13421 THE OHIO MUNICIPAL CODE. 914 wires from such subways to subscribers’ stations and is located in an alley if practicable, or, within such city or village, con- structs or maintains underground wires, pipes, conduits and other fixtures for containing, protecting and operating such wires in the streets and public ways thereof, without obtaining the consent of such city or village, shall be fined not less than fifty dollars nor more than two hundred dollars. This section shall not apply to existing telegraph companies until they shall have had authority and sufficient time to construct subways. [100.-v. 85; SJ.) Sec. 13421. [Obstructing street, alley, etc.] Whoever ob- structs or incumbers, by fences, buildings, structures or other- wise, a public ground, highway, street or alley of a municipal corporation, shall be fined not more than five hundred dollars.* [Rei S: See: 6921 +:30-y 22) 8 Te b4y2130 § 1 said ae v. 88 §1; (S. & C. 441358. & C. (1) Adverse possession of streets by the erection of ences, buildings, etc., see 38714, ante, in Part I. What obstructions constitute violation of this section, see Nagle v. Brown, 37 O. S. 7 (felling tree, fallen across highway); Selden v. Columbus, 12 Dec, 650 (mainte- nance of fence); Walker v. Spring- field, 3 Dec. Re. 567 (excavation). But every excavation in a street is not necessarily a nuisance. R. R. Co. v. Morey, 47 O. S. 205, 2:15. Overhead sign is not an obstruc- tion in violation of this section. note under § Sec, 13421-12. 878; S. & C. 880).] Reese v. Cleveland, 18 Dec. 12; 5 NPN.) nals. Construction of railroad tracks in a street without proper authority would be a violation of such sec- tion. R. R. Co. v. Commissioners, 35 O. S. 1, 8; see also R. R. Co. v. Commissioners, 31 O. S. 338, 348. As to right to adverse possession of part of street by encroachment when such encroachment is a Vio; lation of this section, see Heddleston v. Hendricks, 52 O. S. 460, 467. Sufficiency of indictment.— See Matthews v. State, 25 O. S. 536. [Operating traction engines upon improved highways; terms ‘‘traction engine’’ and ‘‘tractor’’ defined.] Whoever drives over the improved highways of the state, or any political subdivision thereof, a traction engine or tractor with tires or wheels equipped with ice picks, spuds, spikes, chains or other projections of any kind extending beyond the cleats, shall be fined for each offense not less than ten dollars nor more than one hundred dollars. .The 915 POUNDS. § 5809 terms ‘‘traction engine’’ or ‘‘tractor’’ as used in this act, shall apply to all self-propelling engines equipped with metal- tired wheels operated or propelled by any form of engine, motor or mechanical power, used for agricultural purposes. No eity, county, village or township shall adopt, enforce or maintain any ordinance, rule or regulation contrary to or in- consistent with the terms of this act; or require of any per- son any license tax upon or registration fee for any traction engine, tractor, or trailer, or any permit or license to operate. Operators of traction engines or tractors shall have the same rights, upon the public streets and highways, as the drivers of any other vehicles unless some other safe and convenient way is provided, and no public road open to traffie shall be closed to traction engines or tractors. [107 v. 652; 106 v. 574. | ANIMALS RUNNING AT LARGE, Sec. 5809. [Certain animals not to run at large.]' A per- son, firm or corporation being the owner or having the charge of horses, mules, cattle, sheep, goats, swine, dogs or geese, shall not permit them to run at large? in the puble road, highway, street, lane or alley, or upon uninclosed land or cause such animal to be herded, kept or detained for the purpose of grazing on premises other than those owned or occupied by the owner or keeper thereof, except as provided in section fifty-eight hundred and eleven. [110 v. 119; R. 8S. See 4202", 93 fyi 129.78 v. 18; 62 v. 185, §1; 56. Vv... 77, Rog aa ie ke. uk.C. 76). (1) Common-elaw rule not. statute. Marsh vy. Koons, 78 O. adopted in Ohio.—The common- _ S%. 68. law rule required the owner to re- strain domestic animals, but this rule was not adopted in Ohio. Rail- road v. Stephenson, 24 O. S. 48. For further provisions, 5811 et seq. Object of this statute is to pre- vent trespasses, and it does not make owner liable to person injured by horse taking fright at animal at large in highway contrary to the see §$§ (2) No breach without negli- gence.—The owner of domestic animals mentioned in this section, is not guilty of any breach if they be at large without the omission on his part of reasonable care. Jb. ; Railway v. Howard, 40 O. S. 6; Rutter v. Henry, 46 O. S. 272; Rudi v. Lang, 12 C. C. 529. But ‘see Morgan v. Hudnell, 52 O. S. 552. And one finding an animal at § 5810 without negligence of the owner, cannot confine said animal until the owner tender compensation, Rutter v. Henry, 46 O. 8. 272; Rudi v. Lang, 12 C. C. 529. Contra, Holtzkemper v. Langloth, 8 C. C. 520. large THE OHIO MUNICIPAL CODE. 916 for injury committed by such ani- mal while in a place where it right- fully may be, unless owner knew of vicious propensities. Morgan v. Hudnell, 52 O. S. 552. Nor is the owner of unenclosed land liable for injuries to cattle Liability of owner.-—Owner of domestic animal not generally liable straying on same. Ferguson v. Mi- ami Powder Co., 9 C. C. 448. Sec. 5810. [Penalty.] Whoever violates the provisions of the next preceding section shall forfeit and pay for each viola- tion not less than one dollar nor more than five dollars. Con- tinued violation, after notice of prosecution, shall be an additional offense for each day of such continuance. [R. S. Sec. 4202; 93 v. 129; 78 v. 18; 62 v. 185 §1; 56 v. 77 §§ 1, 2, 3.] Sec. 5817. [Animal running at large may be treated as estray.] A person finding an animal, mentioned in section fifty-eight hundred and nine, at large,’ contrary to law, may, and a constable of a township, road superintendent in a town- - ship or village, or marshal or constable of a city or village, on view or information, shall take and confine it, forthwith giving notice thereof to the owner, if known, and, if not known, by posting notices describing such animal therein, in at least three public places within the township. If the owner does not appear and claim the animal, and pay all charges for so taking, advertising and keeping it, within ten days from the date of such notice, the animal may be proceeded with under the laws regulating estrays. [R. S. Sec. 4207; 72 v. 170 § 6; 81 v. 105; 98 v. 384; (S. &S. 8).] (1) Cattle at large.—Under enclosed field, passing through an provision of former act cattle run- ning at large, with or without per- mission of the owner could be taken up. Sloan v. Hubbard, 34 O. S. 583. And the right to take up animals running at large is not affected by failure of township trustees to es- tablish a pound. Jb. A horse breaking out of an adjoining field and thence into an- other field, is not “at large” con- trary to provision of § 5809; and no person is authorized to take up and confine it until the owner pay or tender compensation as pro- vided by this section. Rutter v. Henry, 46 O. 8. 272. 917 MOTOR VEHICLES. § 5818 Sec. 5818. [What is prima facie evidence.] Such animal running at large in or upon any of the places mentioned in section fifty-eight hundred and nine, shall be prima facie evi- dence that it is running at large contrary to the provisions thereof. [R. S. Sec. 4207; 72 v. 170 § 6; 81 v. 105; 98 v. 334.] Sec. 5823. [Pounds in incorporated villages.] The council of an incorporated village may procure or construct an in- closure or pound wherein animals, taken within such village under section fifty-eight hundred and seventeen or an ordi- nance of such village, may be confined, and like notices shall be given and like proceedings had in such ease as are required by such section. Such council may appropriate not exceeding one hundred dollars from the general fund of the village for such purpose. [90 v. 19 §1.] MISCELLANEOUS. Streets on State Lands. Sec, 23. [Street, etc., over lands of public institution.] A street, alley or road shall not be laid out or established through or over the lands belonging to a public institution of the state without special permission of the general assembly. [R. S. Sec. 625; 49 v. 110, §1; (S. & C: 181).] Motor Vehicles. Sec. 6307. [Limitation on local authorities.] Local author- ities shall not regulate the speed of motor vehicles? by ordi- nance, by-law or resolution, but, for a given time, they may set aside a specific public highway for speed tests or races. The term ‘‘local authorities,’’ as used herein, means all officers, boards, and committees of counties, cities, villages or town- ships. [99 v. 538, 543 §§ 2, 23.] (1) Section carried here is part of the State license law for motor Municipal regulations annulled, see Frisbie v. Columbus, 80 O. 8. vehicles, § § 6290 et seq. (2) Distinction between auto- mobile and motor vehicle, see Brown v. State, 10 N. P. (N. S.) 238; 20 Dec. 348. 686. Held Unconstitutional. — This section is in direct conflict with the provisions of Section 3 of Article XVIII of the Constitution § 12603 of Ohio, authorizing municipalities to adopt and enforce within their limits such local police, sanitary and other similar regulations, as THE OHIO MUNICIPAL CODE. 918 laws, and is therefore unconsti- tutional and void. Fremont v. Keating, 96 O. 8. 469. And see Op. Atty. Gen. (1918), p. 426. are not in conflict with general Sec. 12603. [Speed limits.] Whoever operates a motor vehicle in and upon the public roads or highways at a speed greater than is reasonable and proper having regard for the width, traffic, use and the general and usual rules of such road or highway, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter provided. A rate of speed greater than fifteen miles an hour in the business or closely built-up portions of a municipal corporation or more than twenty-five miles an hour in other portions thereof, or more than thirty-five miles an hour out- side of a municipal corporation, shall be prima facie evi- dence of a rate of speed greater than is reasonable and proper. [110 v. 135, 188; 108 v. 471; 108 v. 161; 99 v. 541.] (1) Terms defined.—Construing § 12604, repealed, it was held that the legislature intended to dele- gate to the municipality the defi- Ordinance establishing rules of the road not in conflict with general laws, held within the powers of municipality, and held proper evi- nition of the words ‘‘business dence in prosecution under this and closely built up portions.’’ section. State v. O’Mara, 105 O. S. Weimer v. Rosen, 100 O. S. 361. 94. See also Gillilan v. Spring, 20 NioPs (NS) 3380. Sec. 12603-1. [Safety.] Whoever operates a motor vehicle on the public roads or highways without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, and so as to endanger the life, imb or property of any persons while in the lawful use of the roads or highways shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter pro- vided.) [110: v..135, 138)] Sec. 12603-2. [Penalty.] Any person upon being found guilty of violating section 12603 or section 12603-1 shall, for a first offense thereof, be fined not less than $10.00 or more than $100.00; and for a second offense, not less than $25.00 919 MOTOR VEHICLES. § 12608 or more than $100.00, or imprisoned in the county jail or workhouse not more than ten days, or both; and for a third offense, shall be fined not less than $50.00 or more than $200.00, or imprisoned in the county jail or work- house not less than ten days or more than thirty days, or both, provided, further, that when any person is found guilty of a first offense for violation of section 12603 upon a finding that he operated a motor vehicle faster than twenty-five miles an hour in the business or elosely built up portions of a municipal corporation or faster than thirty- five miles an hour in other portions thereof, or faster than forty-five miles an hour outside of a municipal corporation, the court trying the same may, in addition to the penalty herein provided, sentence such offender to the county jail or workhouse for not more than five days. [110 v. 135, 139.] Sec. 12608. [Municipality may not restrict provisions of law.] The provisions of section twelve thousand six hundred and three shall not be diminished, restricted or prohibited by an ordinance, rule or regulation of a municipality or other public authority. [108 v. 471; 99 v. 541.] Motor Busses. Sec. 614-86. [Jurisdiction vested with ‘‘the public utilities commission’’; scope of jurisdiction.] The public utilities commission of the state of Ohio is hereby vested with power and authority to supervise and regulate each such motor transportation company in this state; to fix, alter and regu- late rates; to regulate the service and safety of operation of each such motor transportation company; to prescribe safety regulations, and designate stops for service and safety on established routes; to require the filing of annual and other reports and of other data by such motor transportation com- panies; to provide uniform accounting systems; and to super- vise and regulate motor transportation companies in all other matters affecting the relationship between such com- panies and the public to the exclusion of all local authorities in this state. The commission, in the exercise of the juris- diction conferred upon it by this chapter, shall have the § 614-96 THE OHIO MUNICIPAL CODE. 920 power and authority to prescribe rules and regulations af- fecting such motor transportation companies, notwithstand- ing the provisions of any ordinance, resolution, license or permit heretofore enacted, adopted or granted by any incor- porated city or village, city and county, or county, and in case of conflict between any such ordinance, resolution, l- cense or permit, the order, rule or regulation of the publie utilities commission shall, in each instance prevail; provided that such local subdivisions may make reasonable local police regulations within their respective boundaries not inconsistent with the provisions of this chapter. [110 v. 211, 214.] Sec. 614-96. [Distribution of revenue.] The revenue col- lected under the provisions of section 614-94 of the General Code shall be distributed as follows: (1) Fifty per centum of all taxes collected under section 614-94 of the General Code shall be for the use of the mu- nicipal corporations or counties into, through and along which the route of such motor transportation company runs and extends. Such moneys shall be paid into the treasury of the proper county as provided herein and the proper por- tions distributed to the municipal corporations in accordance with the miles of route in such municipal corporation. In the treasuries of such municipal corporations and counties, such money shall constitute a fund which shall be used for the maintenance and repair of public roads, highways and streets and for no other purpose, and shall not be subject to transfer to any other fund. ‘‘Maintenance and repair’”’ as used in this section includes all work done upon any public road or highway or upon any street, in which the existing foundation thereof is used as the sub-surface of the improvement thereof, in whole or in substantial part. (2) The ‘‘state maintenance and repair fund’’ shall be available for the use of the public utilities commission of Ohio in defraying the expenses incident to maintaining the bureau of the department for carrying out and enforcing the provisions of sections 614-84 to 614-102, inclusive, of the General Code, including the payment of salaries, traveling expenses, printing and other expenses, and for the use of the director of highways and public works in the manner pro- _ : ' 92] CONVEYANCE OF PROPERTY TO BOARD OF EDUCATION. § 6956-21 vided by law. The General Assembly shall make appropria- tions therefrom for such purpose. [110 v. 211, 220.] Canal Tow Path. Sec. 6956-21. [Grant for public travel, constitutes public highway.] Whenever the board of public works under author- ity of any law of this state has granted or hereafter shall grant to any board of county commissioners, township trustees, or to the authorities of any municipal corporation in this state the use of any portion of the towing path of any canal of this state for public travel, such portion of such towing path, the use of which has been so granted shall be and hereby is constituted a public road or highway within the meaning of the sections of the general laws of Ohio providing for the improvement and repair of public roads and highways. Provided, however, that nothing herein shall be construed so as to authorize the aban- donment of any portion of the towing path of any such canal; and the board of public works may at any time whenever any such portion of any such towing path shall be needed for canal or other purposes, upon six months’ notice, revoke any such grant and order such use of such portion of such towing path to be discontinued. [102 v. 468. | CONVEYANCE OF MUNICIPAL PROPERTY TO BOARD OF EDUCATION. Sec. 7624-1. [Municipality may convey real property to board of education.] A municipal corporation may by ordi- nance duly ‘passed authorize the transfer and conveyance by deed, of any real property owned by it and not needed for municipal purposes, to the board of education of any such municipality, to be used by said board of education as an athletic field, a play ground for children or for school sites, upon such terms and conditions as are agreed to be- tween the municipal corporation and the board of education and when such property is so conveyed, the same shall be under the control and supervision of such board of educa- tion. [103 v. 466.] aL STREET RAILROADS IN MUNICIPAL LIMITS. STREET AND INTERURBAN RAILROADS. Sec. 9100. [Authority to construct a street railway.] Street railways, with single or double tracks, side-tracks, and turn- outs, may be constructed or extended within or without, or partly within and partly without, any municipal corporation. Offices, depots, and other necessary buildings therefor, also may be constructed. [R. S. Sec. 3437; 67 v.10 §1; (S. & 8. 185).] Street railroads outside mu- nicipalities.—See §$9117 to 9119 G. C. ' Regulation of speed.—See § 3632, ante, in Part I. (1) Other provisions.—For provisions of Title XII ‘Municipal Corporations,” relating to powers and rights of municipalities with reference to Street Railroads, see §§ 3768 to 3777 in Part I. For discussion of definitions, char- acter of occupation of streets, con- Special acts.—For change of route law for Cincinnati, authoriz- ing municipalities to agree with struction of ordinances, etc., see street railway company for percent- notes to §3768 et seq., ante, in age of gross receipts in lieu of car Parte. license fees, see 95 O. L. 502. Consolidation.—See §§ 9121 and 9122 Gs Cos §§ 9127 to 9129-4. C. For act making valid certain routes in Cincinnati and providing for extensions, see 88 O. L. 303. Sec. 9101. [Who to grant right to construct.]' The right to construct or extend? such railway within or beyond the limits of a municipal corporation, may be granted only by its council,’ by ordinance; the right to construct such railway without the limits of a municipal corporation may be granted only by the county commissioners, by an order entered on their journal. [96 v. 31 § 29.] (1) Old section.—Municipal code §29 (96 v. 81, $29) was practically a rewriting of § 3438 R. 922 S. (repealed) omitting all the refer- ences to grades and classes of cities and making the provisions general. 923 Construed with other laws.— It was held that § 3438 R. S. must be construed with other laws relat- ing to the same subject. R. R. Co. v. Commissioners, 56 O. 8S. 1, 7. See also Hattersly v. Waterville, BELO iC 2264220204 Cu. Ce (Ns) 242 (aff'd 74 O. S. 466). It was held that §§ 3437, 3438, 3439 et seq. R. S. (9100-9105 G. C.), refer to street railways and extensions wherever located; §§ 2501 to 2505 R. S. (3768-3777 G. C.), relate wholly to lines and exten- sions within municipalities. Where there is a conflict as to municipal lines or extensions, the special pro- Sec. 9102. STREET RAILROADS IN MUNICIPAL LIMITS. § 9102 visions of §§3768 et seq. must govern. C. C. C. & St. L. Ry. Co. Wo Ue Ba. Wis Nat COm, 20 Gnas 180; 5 C. C. (N. 8.) 583 (aff'd 73 O. S. 364). (2) Extensions.—For discussion of subject, see notes to Sorc 2am. Bart oe (3) Council.—The council must be made directly to the grantee, and power to make the State general grant by erant cannot be delegated. ex rel. v. Bell, 34 O. S. 194. Council was held under the for- mer laws to include trustees of hamlets. Annexation to Newburgh, Loi. Coc 78, 80, [Grantee not to be released from obligation. ]* After such grant, or the renewal of any grant has been made, by general or special ordinance, or the order of county com- missioners, neither the municipality nor commissioners shall release a grantee from any obligations or liabilities imposed by the terms of the grant, or renewal of any grant, during the term for which such grant or renewal was made.” (1) See note (1) ante. (2) Provision unequivocal. A provision such as this is unequivo- cal and forbids any release of what is due the city by its officers and in the face of such a statute neither the principles of account stated nor of accord and satisfaction based upon receipt of a less amount than is due have any application. Cin- cinnati Street Railway Co. v. Cin- under § 9101, [96 v. 81 § 29.] A grant made in good faith by a board of county commissioners to an interurban company, where- in certain obligations relating to rates of fare and frequency of service imposed in a former fran- chise are relinquished, is not void by virtue of this section if the considerations supporting the sec- ond grant are substantial and ad- vantageous to the public. State, ex rel. v. McClure, 107 O. S. 551. cinnati, 8 N. P. 80. Sec. 9103. [Right to occupy tracks of existing companies. ]' No right shall be given by such municipal or county authorities to occupy the track, single or double, or other structure, of ex- isting street railways for more than one-eighth of the distance between the termini of the route, as actually constructed, oper- THE OHIO MUNICIPAL CODE. § 9104 924 ated and run over, of the company or person to whom such grant is made.” But in granting permission to extend existing routes in cities, the cities and companies owning such route shall have all the rights and powers which they possess under existing laws and contracts. [96 v. 31 § 29.] (1) See note (1) under § 9101, tracks under authority of § 9108. ante. Validity, See Street Ry. Co, v. Street Ry. Co., 50 O. S. 603. (2) Extension over other tracks.—Before the limitation as to length of extension over other tracks, it was held municipality had general power to grant right to one company to run over tracks of other company, compensation being paid the company already occupy- ing the street. Sims v. St. Ry. Co., 37 O. S. 556; Broadway St. Ry. v. Brooklyn St. Ry., 10 B. 72. Consents of abuiting owners not necessary in case of such exten- sion. Lima v. Cramer, 17 Dec. 24; 5 N. P. (N. 8S.) 113. The grant made by the munici- pality, as provided in the above does not of itself confer upon the grantee the right to enter upon occupancy of the tracks of the other company. To make effec- tive the grant, it becomes necessary to obtain the consent of the other company or to appropriate the section, Sec. 9104. [Extensions to be constructed as new.]’ Street Ry. Co. v. Street Ry. Co., 50 O. 8. 603. As to the right of council to fix the compensation to be paid first company, when this power is re- , served to council in the franchise of the first company, see Railroad Co. v. Railroad Co., 36 O. S. 239. How determine length of track.—The trackage of a railway over its entire route and not merely that part within the city may be considered in determining the length of track of railway already in that city that may be used. State v. Electric Street Ry., 19 C. C. 79. Right to “straddle” tracks of another company may be given, as well as right to occupy track, but compensation must be paid first company. H. G. & C. Traction Co. v. Transit Co., 69 O. 8. 402. Appropriation of track of other company for distance permitted in above section, see notes to § 9108, post. No extension of a street railway located wholly outside of a city, or of one wherever located, which is built in pursuance of a right obtained from authority other than that of a municipal corpora- tion, shall be made within the limits of such city, except as a new route.” [96 v. 31 § 29.] (1) See note (1) under § 9101, ante. be as a new route when the original grant was made by county com- missioners, but the territory through which it ran was subse- (2) Annexation of territory. —As to whether the extension must STREET RAILROADS IN MUNICIPAL LIMITS. 925 § 9105 181; 5 6. C. (N. S.) 461 (aff'd 73 0, S. 392). quently annexed to the municipal- ity, see Belle v. Glenville, 27 C. C. Sec. 9105. [Consent of owners of abutting property.] No such grant’ shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension thereof,’ and the provisions of all ordinances * of the council relating thereto, have in all respects been complied with, whether the railway proposed is an extension of an old or the granting of a new route. (S. & S. 189).] (1) Grant referred to is grant of right to construct or extend street railway, as formerly provided in § 3438 R. S., now superseded by § 9101 G. C. (2) Consents.—See note under § 3770, ante, in Part I. Charter of municipality may dispense with requirement as to consent of own- ers of abutting property. Billings v. Railway Co., 92 O. S. 478. Validity—The consents called for by this law are in no sense a delegation of legislative author- ity and the law is valid and con- stitutional. Carpenter v. Cincin- nati, 92 O. S. 473. (3) Provisions to be com- plied with.—Section 3439 R. S., of which the above section is a re- vision, did not contain any require- ment that “all ordinances of the council relating thereto” should be complied with, before any grant to Sec. 9106. [R. S. Sec. 3439; 99 v. 102; 80 v. 173; 65 v. 112; a street railway company is made. The language of § 3439 R. S. was that “the provisions of §§ 2501 and of 2503 to 2505 inclusive, so far as they are applicable” should be observed in all respects, whether the proposed railway were an extension or a new route. §§ 2501 and 2503- 2505 are now embodied in §§ 3768 and 3775-3777 G. C. and required before construction begun, and provided as to character permitted application and _ ordinance of construction and extensions on certain terms. Tint COMIC Par SU.mene vy ror aie U. BY& N. Ry? Coy 261Ce C2180 (aff'd 73 O. S. 864) it was held, under former § 3439 R. S., that in ease of extensions, only § 2505 R.S. was applicable and that the notice required by § 2502 R. S. was not necessary in case of extensions. [When written consent not required.] But when such grant is made by the council of a municipal cor- poration, either for a new route or as an extension of an ex- isting route, in case the number of tracks thereon or part § 9107 THE OHIO MUNICIPAL CODE. 926 thereof is not increased beyond the number for which con- sents originally were obtained, on and along any part of a street or public way upon which a street railway has been op- erated within one year preceding under a grant or renewal of a grant which has expired or within two years will ex- pire, or when such a grant is made by the council of a mu- nicipal corporation or the commissioners of a county on and along any part of a street or public way upon the order or finding of any court of competent jurisdiction, or a judge thereof, in a hearing upon or growing out of a grade cross- ing elimination proceeding, in which hearing such court or judge has determined that the reasonable and practical so- lution of the manner of eliminating a grade crossing requires that such a street or interurban railway shall be re-located or re-routed for a certain distance fixed by the court, it shall not be necessary to produce to the council or commissioners any written consents from the owners of the lots and land abutting on such part of a street or public way. [107 v. 533; 99 v. 102; R. S.See. 3489. ] Sec. 9107. [When property owner cannot withdraw con- sent.] Nothing contained in the preceding section shall permit a person owning property abutting on a street along, in or over which a street railway is about to be constructed, to with- draw his consent after an ordinance granting the right to con- struct and operate it has been read the second time, if at least thirty days elapsed since the first reading thereof, in the council or other body authorized to make the grant.1 [R.S. Sec. 3439a; 95 v. 475.] (1) Validity.—Section held constitutional in Hume v. Traction Co., 13 Dee. 70. Sec, 9108. [Appropriation of property.] When the council or commissioners make such grant, the company or person to whom it is made may appropriate property necessary therefore, if the owner fails expressly to waive his claim to damages by reason of the construction and operation of the railway.* [R. S. See. 3440; 89 v. 349; 87 v. 178; 63 v. 55; 61 v. 538; S. G&S. 136, 137.] 927 (1) Appropriating tracks of another company.—tThe provi- sions of this section are broad enough to authorize the appropria- tion of the use of the tracks of another company, subject to the re- strictions in § 9108. Street Ry. Co. v. Street Ry. Co., 50 O. S. 608. Appropriation proceedings are such as are provided for appropria- tion of property by private corpo- rations. Street Ry. Co. v. Street Ry. Co., 50 O. S. 603. Scope of hearing and measure of compensation, see Street Ry. ‘Co. v. Street Ry. Co., 6 C. C. 362; Toledo Consolidated St. Ry. Co. v. Toledo Elec. St. Ry. Co., 12 C. C. 367. Effect.—The appropriation of the right to use the track of an- other company, does not exhaust the franchise of such other company. Toledo, ete., Ry. v. Toledo, etc., Ry., 6 C. C. 362. The right of eminent domain not affected by motive power. State ex rel. v. Taylor, 55 One (615 66; Scope of power.—The right to appropriate the use of track of an- other company is not interfered with by the sections giving com- panies power to make traffic ar- rangements for joint use of tracks. State v. Elec. St. Ry., 19 C. C. 79, 90. A second company may appro- STREET RAILROADS IN MUNICIPAL LIMITS. § 9109 priate the right to “straddle” the tracks of the first company. UH. G.ik& C. Traction. Co, v. C.D. & T. Traction Co., 47 B. 854. Use by third company.—Where a company has appropriated the right to use the tracks of another company, it cannot claim compen- sation from a third company which is given the use of the tracks by the original company. ‘Toledo, ete., Ry. Co. v. Toledo and Maumee Val- ley Ry. Co., 10 C. C. 168. Appropriation of additional track.—Second company, having al- ready appropriated part of track of first company, may appropriate additional parts of such track, with- out new ordinance of council, if the total amount appropriated is still within the limitations as to the amount of track that may be used. Toledo v. Consolidated St. Ry. Co., v. Toledo Elec. St. Ry. Co., 12.C..0.. 367. Injunction against use of track after appropriation, see Metropolitan St. Ry. ‘Co. v. Toledo, ete., Ry. Co., 9 C. C. 664. Measure of damages, where private property is appropriated for street railway purposes, see Lorain ure ny. CO. V2 Cinmingenn La Cs 649. Sec. 9109. [Appropriation of property of turnpike or plank road.] Such power to appropriate may be exercised, for the purpose of constructing a street railway along a highway occu- pied by a turnpike or plank road company when the person, persons or company authorized to construct such railway can- not agree with the turnpike or plank road company on the terms and conditions upon which the highway may be occu- pied, and if such appropriation will not unnecessarily inter- fere with the reasonable use of the highway by the turnpike § 9110 THE OHIO MUNICIPAL CODE. 928 or plank road company. Nothing in the foregoing provisions shall affect the rights of property owners to give or withhold their consent concerning the right of way for street railways upon any street or road. [R. S. Sec. 3440; 89 v. 349; 87 v. 178; 63 v. 55; 61 v. 53; S. & S. 136, 137.] Sec. 9110. [Oath in appropriation proceedings.] In case of appropriation of property for such purpose, the oath to be ad- ministered to the jury shall be as follows: ‘‘You and each of you do solemnly swear that you will justly and impartially assess, according to your best judgment, the amount of com- pensation which is due to (here name the owner or owners), by reason of the appropriation of the street or avenue (as in the statement described), irrespective of any benefit from any improvement proposed by such (here name the company, in- dividual, or company of individuals), and that you will in assessing damages that may accrue to (here name the owner or owners), by reason of the appropriation, other than the compensation, further ascertain how much less valuable the lot or lots of such (here name the owner or owners), will be in consequence of such appropriation.’’ [R. S. Sec. 3442; 63 v. 55 §5; 8. & S. 138.] Sec, 9111. [How compensation ascertained.] The jury, in ascertaining such compensation or damages, shall determine the amount thereof without reference to the distinction be- tween a public and private nuisance, and the effect of such distinction upon the right of such owner or owners to claim compensation or damages, and, if requested, the court shall so direct the jury. [R. S. Sec. 3442; 63 v. 55 §5;S. & S. 138.] Sec. 9112. [Consent of authority controlling public road.] If the public road along which the railway is to be constructed is owned by a person or company, or is within the control or management of the board of public works or other public of- ficer,t such person, company, or officer may agree with the person or company constructing the railway as to the terms and conditions upon which the road may be occupied.? [R. S. See. 3441; 67 v. 10 §1.] 929 (1) County commissioners in- cluded.—See R. R. Co. v. Com- missioners, 56 O. S. 1, 7. (2) Scope of power.—The power to agree with authorities in Sec. 9113. STREET RAILROADS IN MUNICIPAL LIMITS. § 9113 control of road does not give the right to take the road, if no agree- ment is reached. ‘The alternative is appropriation under § 9109. Ib. [Terms and conditions of construction, etc.] Council, or the commissioners, as the case may be, may fix the terms and conditions upon which such railways may be con- structed, operated, extended, and consolidated.* [R. S. See. 3443 ; 67 v.10 §1; 66 v. 140 §1.] (1) Power of council.—As to power of council to fix terms upon which one railway company may use portion of tracks of another railway company, see Railroad Co. v. Railroad Co., 36 O. S.. 239. Sec. 9114. The right to impose terms and conditions implies the right to agree upon the duration of the occupancy of the streets and limit the period of the grant. Louisville Trust Co. v. Cineinnati,.10 O. F. D. 112. [Free transportation of police and firemen.] Upon the granting of franchises to traction companies through- out this state for the use of streets, roads and highways for the transportation of passengers, it must be provided, as one of the considerations for such use of the public highways, that such traction companies shall carry free as passengers on any and all regular cars, policemen and firemen, when on duty and in uniform. [100 v. 14 §1.] Sec, 9115. [Appropriation of property by directors.] When it is deemed necessary by a majority of the directors of a domestic or foreign corporation owning or operating a street railway in a municipality to appropriate private property therein, in order to avoid dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations or to extend or shorten its railway line, or to provide land on which to extend its power plant, such corporation may appro- priate so much private property as is necessary for the exten- sion of such power plant, or the construction, operation, and maintenance of the tracks, poles, supports, wires, cables and necessary appliances of such railway other than power houses, machine shops, stations or substations in the manner and sub- § 9116 THE OHIO MUNICIPAL CODE. 930 ject to the provisions of law for the appropriation of private property by corporations. [97 v. 106 §1.] (1) Scope of power.—For con- palities, see Columbus, etc., Ry. Co. struction of similar statute allow- v. Cole, 47 B. 66. ing condemnation outside of munici- Sec. 9116. [Change of location of any portion of railway.] For the purposes above provided such corporation may change the location of any part of its railway, and for the purpose of making such change, it shall have all the rights, powers, and privileges to enter upon private land and make surveys neces- sary to effect such change as fully as railroad companies are by law permitted to do. [97 v. 106 § 2.] Sec. 9117. [Construction of street railroads outside of muni- cipalities.] Companies incorporated under section eighty-six hundred and twenty-five, for such purpose, may construct, maintain and operate electric street railroads, or street rail- roads using other than animal power as a motive power, for the transportation of passengers, packages, express matter, United States mail, baggage and freight upon the highways in this state outside of municipalities, or upon private rights of ways. [R.S. Sec. 3448-8; 91 v. 286.] Sec. 9118-1. [Crossings, other than steam railway; petition.] Whenever it is deemed necessary by a majority of the directors of any such railway company? to cross the streets, avenues, alleys, ways, or any part thereof, of any municipality, or any public highway outside of a municipality, whether the same be under the control of public authorities or a private company, or a person or persons, the council of such muncipality, or the public officers or authorities owning or having charge of such highways outside of municipalities, shall have power to agree with such company as to the manner and mode of such cross- ing and the compensation to be paid therefor; if the parties fail to agree, such company may file its petition in the common pleas court of the county in which the proposed crossing is situated, and in such cause if the crossing be within a munici- pality, such municipality, shall be defendant; if the crossing 931 STREET RAILROADS IN MUNICIPAL LIMITS. § 9118-2 be outside a municipality, the public authorities owning or having charge of such highway, shall be defendants. Summons shall be served and the rule days and the rights of the defend- ant to plead shall be the same as in civil actions in such court. Such petition shall set forth the action of the company declar- ing the necessity for crossing the highway and the inability of the company to agree with the council or other public of- ficers or authorities owning or having charge of said highway ; and the court of common pleas thereupon shall have jurisdic- tion? of the parties and of the subject matter of the petition and may proceed to examine the matter offered by evidence, by reference to a master commissioner or otherwise, and upon the final hearing of said cause the court shall enter its decree fix- ing the manner and mode of such crossing and the compensa- tion, if any, to be paid therefor by the company, and upon compliance with the terms of said decree the company shall have the right to construct and maintain said crossing in ac- cordance with the order in said cause. [101 v. 375.] (1) This refers to companies pro- mode of crossing streets in a vided for in § 9117, ante. municipality by electric street (2) Validity —§9118-1, G. C., railroads and the compensation, which provides that the court of if any, to be paid therefor, is common pleas shall have juris- constitutional. Rocky River v. diction to fix the manner and Railway, 18 ©. C. (N. S.) 354. Sec. 9118-2. [Appropriation of real estate.] Where the tracks of any such road extend into or through any municipal- ity and it is deemed necessary by such company to enter upon and use any private property within such municipality for the construction and maintenance of either passenger stations or freight depots to be used in the operation of such road, such company shall have the right to appropriate private property within municipalities for such purposes. [101 v. 375.] Sec. 9120. [Leases, purchases and traffic arrangements. ] Such companies ? may lease, purchase, or make traffic arrange- ments with any other street railway company as to so much of its tracks and other property as is necessary or desirable to enable them to enter or pass through a city or village, upon the terms and conditions applicable to other street railways.2 Any § 9123 THE OHIO MUNICIPAL CODE. 932 existing street railway company, owning or operating a road shall receive the cars, freight, packages or passengers of any other road, upon the same terms and conditions as they carry for the general public. [91 v. 286 § 4; Bates, 3443-11. ] (1) Companies means com- upon which the company owning the panies incorporated for construct- track operates, but the terms ap- ing street railroad outside of munic- plicable to street railroads gen- ipalities, as provided in § 9117, ante. erally, in the municipality. Inter- (2) Joint use of tracks, may urban Ry. & T. Co. v. Cincinnati, be secured also under § 9108. State 75 O. S. 196; and interchange of v. Blec. Ry:"o., 19°C'C. 79. transfers is not required, Ib. Interurban railway may make Quaere, whether a double fare traffic arrangements with street can be charged—one on the track railway in municipality, for car- of an interurban road and ‘a sec- riage of merchandise for hire, as ond fare on the tracks of the city well as passengers. State v. Trac. line for a single continuous jour- tion companies, 64 O. S. 272. ney within the city limits. See The words “same terms and con- Cincinnati v. Railway, 13 N. P. ditions” do not mean the terms (N. 8S.) 265. Sec. 9123. [Watchmen.] When street railways are operated by electricity, cable, compressed air, or motive power other than horses or mules, in a municipality, the council thereof by ordinance may require the owners or operators of such railways to place watchmen at street crossings, intersections or corners which such council deem dangerous; and also pro- vide for the enforcement of such ordinances by penalties in the way of fine or imprisonment, or both, to be imposed upon the owner, officer, or operator of such railways, or by a penalty of not exceeding one hundred dollars per day, which may be recovered by such municipalities in a civil suit against the owners or operators of any such railway failing to place such watchman as is required: [R. S. Sec. 3443a; 89 v. 346.] (1) When required.—Flagmen ous. Akron, ete., Co. v. Erie R. R. could be required to be stationed at Co. 7 C. C. (N. 8.) 199; 28 C. such crossings only as were danger- C. 37. Sec, 9124. [Repairs at crossings; stopping of cars at cross- ings.] When the tracks of two street railways cross each other or in any way connect at a common grade, when one or both such railways use other than horse power for propelling 933 STREET RAILROADS IN MUNICIPAL LIMITS. § 9125 their cars, the crossings shall be made and kept in repair at the joint expense of the companies owning the tracks. All cars used on such railways must come to a full stop, not nearer than ten feet nor further than fifty feet from the crossing, and not cross until the way is clear. When two or more cars ap- proach the crossing at the same time the car or cars on the road first built shall have precedence. [88 v. 581 §1; Bates, 3443-5. | Sec. 9125. [Fullstop when approaching steam railroad crossing; exception.] When the tracks of a street railway cross the tracks of a steam railroad at grade, the company operating the line of street cars shall cause its cars to stop not nearer than ten (10) nor farther than fifty (50) feet from the crossing, and before they start to cross the steam rail- road tracks, also cause a person in its employ to go ahead of the car or ears and see that the way is clear for the passage thereof and free from danger. Such street railway ears shall not proceed to cross until signalled to do so by such person so employed, or the way is clear for their passage over the tracks; provided, however, that when the tracks of a street or interurban railway cross the tracks of an industrial railroad or a switch track or a spur track of a steam railroad over which passenger cars or trains are not operated, the public utilities commission of Ohio may, upon application of the company owning or operating such street or interurban railway and notice to the company owning or operating such industrial railroad or switch track or spur track of the hearing of such application, permit such street or interurban railway to operate its cars over and across such industrial railroad or switch track or spur track without first causing its ears to stop or an employee to go ahead of the same, and may presecrive such duties upon the company owning or operating such industrial rail- road or switch track or spur track for the protection of the public as shall be just and reasonable under the eir- cumstances. [106 v. 541; 88 v. 582; Bates, 3443-6. ] (1) Effect.—Section does not warn persons in charge of street relieve railroad company of oper- cars. Kopp v. B. & O. S. W. Ry. ating gates at crossings so as to Co., 25 C, C. 546. § 9126 THE OHIO MUNICIPAL CODE. 034 Sec. 9126. [Forfeiture under preceding sections.] Every person in charge of a street car or cars who wilfully fails to comply with the provisions of the two preceding sections, or to bring the car or cars he has in charge to a stop, or before the way is clear, or signaled so to do, causes them to cross the steam railroad tracks, shall be personally liable to a person in- jured by reason of such failure to a penalty of one hundred dollars, to be recovered by civil action at the suit of the state, in the court of common pleas of a county wherein such crossing or connection is. The company in whose employ such person is, as well as the person himself shall be liable in damages to any person or persons so injured in person or property.' [88 v. 582 § 3; Bates, 3443-7. ] (1) Liability of company, v. Murray, 53 O. S. 570; Packard when there is a violation of this v. Traction Co., 22 C. C. 578. section, see Cincinnati St. Ry. Co. Sec. 9127. [Consolidation of street railway companies. ] When the lines or authorized lines of road of street railway corporations or companies meet or intersect, or conveniently can be operated from one power house, or a power house or houses owned, under lease or operated’ by one of such cor- porations or companies, or when such line of a street railway corporation or company, and that of an inclined plane railway or railroad company or corporation, or any railway operated by electricity conveniently may be connected, to be operated to mutual advantage, or when such line of a street railway cor- poration or company and that of an inclined plane railway or railroad company or corporation or the railway of any com- pany operated by electricity conveniently can be operated from one power house or a power house owned, under lease or operated by one of such street railway corporations or com- panies or inclined plane railway or railroad companies or cor- porations or by any company or corporation, the railway of which is operated by electricity, such corporation or companies, or any two or more of them, if they are not competing lines, may consolidate themselves into a single corporation.? [95 v. 510 §2; 92 v. 277; 89 v. 406; 88 v. 493; R. S. 2505b; Bates, 3443-16. ] 935 (1) Validity.—See discussion of validity of Rogers Law in Cincin- nati St. Ry. Co. v. Horstman, 72 O.'S. 93. Relation of consolidated to constituent companies.—A con- solidated corporation holds property in its own right, and not in trust for the constituent companies. Green v. Woodland Ave., ete., St. Rieke Covefale 6250. 8S: 6F: But a consolidated company holds its stock in trust for members of the constituent companies. Fuller y. Railway, 8 N. P. 605. Rights of pledgee of stock of old company, see Cleveland City Ry. Co. v. First Nat. Bk., 68 O. S. 582. Terms of consolidation which may be prescribed, see 1b. STREET RAILROADS IN MUNICIPAL LIMITS. § 9128 Liability for tort.—Consoli- dated company is liable for torts of original companies, and after a ver- dict against one of the constituent companies, pleadings may _ be amended to aver the consolidation. Cin. St. Ry. Co. v. Fullbright, 7 Be ghsi. Delivery of new stock should be to stockholders and not to offi- cers of original companies. Robin- son v. Cleveland St. Ry. Co., 5 N. Ps 2033 30k. Status of constituent compa-= nies.—On consolidation the old companies became extinct except for certain limited purposes. Cleveland City Ry. Co. v. First Nat. Bank, 22 C. C. 165 (rev. other grounds, 68 Oss. 582). Sec. 9128. [To what companies provisions do not apply.] The above provision as to competing lines shall not apply to such companies or corporations whose lines are nearby or wholly situated in a city of this state, or road of any street railway company or corporation organized in this state is made, _or is in process of construction to the boundary line of the state, or to a point within or without the state. Such corpora- tion or company may consolidate its capital stock with that of any corporation or company, or corporations and companies in an adjoining state, the line or lines of whose road or roads have been made or are in process of construction to the same point or points, in the manner and with the effect provided by law for the consolidation of railroad companies. [95 v. 510 § 2; 92 v. 277; 89 v. 406; 88 v. 493; R. S. 2505b; Bates 3443-16. ] Sec. 9129. [Consolidation of electric road companies.] When the lines of a road of any street railway or railroad company, organized under the laws of this state are constructed or in process of construction, and are or will be operated by elec- tricity, and connect, or will or can be made to connect with the lines of another street railway or railroad company formed by § 9130 THE OHIO MUNICIPAL CODE. 936 the consolidation of companies organized under the laws of this state, or by the consolidation of a company organized under the laws of this state and a company organized under the laws of an adjoining state, whose lines of road are con- structed or in process of construction, and are or will be oper- ated by electricity, so that cars may pass over such lines of roads continuously, without break or interruption, such street railway or railroad company and such consolidated street rail- way company or railroad company, may consolidate themselves into a single company in the same manner and with like effect as is provided by law for the consolidation of railroad com- panies. Companies owning and operating competing lines of road shall not consolidate under the foregoing provisions, but this limitation does not apply to companies whose lines of road are nearly or wholly situated in a municipal corporation of this state.1 [97 v. 570; §2; Bates, 3443-16a. ] (1) See notes under § 9127, ante. Sec. 9130. [Interurban road may contract for use of tracks in cities.] When a railway company is incorporated and organ- ized under the laws of this state for the purpose of building, acquiring, owning, leasing, operating and maintaining a rail- way or railways to be operated by electricity or other motive . power from one municipal corporation or point in the state, to another municipal corporation, corporations, or point in this state, it may agree with a street railway company, or com- panies, owning or operating a street railway or railways in such municipal corporation or corporations, and the street railway company or companies may so agree with such railway com- pany that its passenger cars may be run and propelled over and along the track or tracks of such street railway company or companies, on such terms as may be agreed upon, in the manner, upon the conditions and for the length of time that the cars owned or operated by such street railway company or companies are operated in such municipal corporation or cor- porations.. [R. S. See. 2505¢; 91 v. 379.] (1) Other provisions. — See Agreement with third com- § 9120, ante, and notes thereunder. pany.—When one company has 937 by proper proceedings obtained right of way over tracks of another com- pany, it cannot recover compensa- tion from a third company granted a right of way from first company. Toledo Elec. St. Ry. Co. v. T. & M. Vow ra Oc CAC. TGs, Abutting owner cannot com- plain when one company, with tracks already laid, grants to a second company the use of its tracks. Sanfleet v. Toledo, 10 C. C. 460. Construction. — §§ 2505 (3777 G. C.) and 2505¢ (9130 G. C.) were held not to conflict. State v. Day- ton Traction Co. et al., 18 C. C. STREET RAILROADS IN MUNICIPAL LIMITS. § 9131 Transfers.—Interurban roads making traffic arrangements with urban roads are not required to ex- change transfers, at least in the ordinance requiring street railroads in the municipality generally, to exchange transfers. Interurban Ry. & T. Co. v. Cincin- natieto On S.,196: Liability of lessor company.— When such owning company makes such an agreement for the joint use of its tracks, it is liable for injuries caused by the actionable negligence of its licensee thereon. Quigley v. Toledo R. & L. Co., 89 OS. 69: ; absence’ of 490, 497. Sec. 9131. [Privileges and obligations of the street railway apply.] While they are running and being operated over and along the track or tracks of such street railway company. or companies in such municipal corporation, the cars of such rail- way company shall be entitled to the privileges and subject to the obligations enjoyed and imposed by and upon the ears of such street railway company or companies owning or operating its cars in such municipal corporation. They shall be operated only by the motive power which operates the cars of such street railway company or companies. When authorized by not less than two-thirds in amount of the stockholders of each company proposing to enter into such arrangement and agree- ment, ratified by a majority of the directors and executed by the proper officers thereof, such arrangement and agreement shall give to such railway company full authority to operate its cars on the tracks of such street railway company or com- panies in such municipal corporation or corporations. [R. S. See. 2505c; 91 v. 379.] Sec. 9132. [Not necessary to obtain additional grant.] It shall not be necessary for such railway company, in case it uses in such municipal corporation or corporations, only the tracks of a street railway company or companies owning or § 9133 THE OHIO MUNICIPAL CODE, 938 operating a street railway or railways therein, to obtain an additional grant, franchise or right, except by such agreement with such street railway company or companies. [R. S. Sec. 2505c; 91 v. 379.] Sec, 9133. [Fare charged within city.] The fare charged by such railway company for transporting passengers within such municipal corporation or corporations, shall not be greater than that fixed in the franchise or franchises held or owned by such street railway company or companies. When there is a public park or cemetery on the line of such railway, within one mile of, and owned by, such municipal corporation, such company for such fare must so transport passengers to and from such park or cemetery the same as if either was within the limits of such corporation. [R.’S. See. 2505¢e; 91 v. 379.] Sec. 9134, [Lease or purchase electric, or gas light, heat, power or fuel company.] A corporation or company maintain- ing and operating a street railway, or a railroad operated by electricity, may lease or purchase all the property, and all the franchises, rights, and privileges of any company organized for the purpose of supplying electricity, or natural or artificial gas, or both electricity and natural or artificial gas, for power, light, heat or fuel purposes, or which has been engaged in such business in whole or part in any municipality within this state, the latter being hereby vested with corresponding power to let or sell, upon such terms and conditions as may be agreed upon between the corporation and company.? No such lease or purchase may be perfected until a meeting of the stockholders of each of the companies has been called for that purpose hy the directors thereof, on thirty days’ notice to each stock- holder, at such time and place and in such manner as is pro- vided for the annual meetings of the companies and the holders of at least two-thirds of the stock of each company in person or by proxy, at such meeting, or at any properly adjourned meeting assent thereto. [R. S. Sec. 2505e; 93 v. 189; 95 v. 391.] (1) Approval of Public Utilities Commission—See §§ 614-60 and 614-62 G. C. 939 STREET RAILROADS IN MUNICIPAL LIMITS. § 9135 Sec. 9135. [Dissenting stockholder.] A stockholder who refuses to assent to such lease or sale and so signifies by notice in writing to the lessee or purchaser within ninety days there- after shall be entitled to demand and receive compensation in the manner provided for the compensation of stockholders dissenting from the sale or lease of a steam railroad. [R. 8. See. 2505e; 93 v. 139; 95 v. 391.] Sec. 9136. [Liabilities of the company leased or purchased. ] A company so leasing or purchasing the property, rights and franchises of an electric light and power company, or natural or artificial gas company, or electric light and power and natural or artificial gas company, shall have all the rights, power and authority of the company whose property rights and franchises are so leased or purchased. But the liability of an electric light and power company, or natural or arti- ficial gas company, or electric light and power and natural or artificial gas company, shall in no manner be affected by such lease or sale. [R. S. Sec. 2505e; 93 v. 139; 95 v. 391. ; Sec. 9137. [May acquire property of other companies.] A corporation or company organized for street railway pur- poses, may lease or purchase any street railroad, or railroads, or railroad operated as such and by electric power inclined railroad or railroads, together with all the property, and the franchises, rights and privileges respecting the use and opera tion of such railroad or railroads, situated or existing in whole or part in this state, constructed and held by any other corpo- ration or company, corporations or companies, the latter being hereby invested with corresponding power to let or sell on such terms and conditions as are agreed upon between the corpora- tions or companies. [R. S. See. 2505a; 93 v. 214; 92 v. 277; 88 v. 493.] (1) Power of Public Utilities Commission.—See § 614-60 G. C. Sec. 9138. [Agreements with other companies.] Two or more of such corporations or companies may enter into any agreement for their common benefit consistent with and cal- culated to promote the objects for which they were created. § 9139 THE OHIO MUNICIPAL CODE. 940 No such lease or purchase shall be perfected until a meeting of the stockholders of each of the companies has been called for that purpose by the directors thereof, on thirty days’ notice to each stockholder at such place and in such manner, as is provided for annual meetings of the companies, and the holders of at least two-thirds of the stock of each company, in person or by proxy, at such meeting, or at any properly adjourned meeting, assent thereto. Any stockholder who refuses to assént to such lease or sale and so signifies by notice in writing to the lessee or purchaser within ninety days thereafter, shall be entitled to demand and receive compensation in the same manner and by such proceedings as are provided for the sale of stock of a stockholder dissenting to a sale or lease of a steam railroad. [R. 8. See. 2505a; 93 v. 214; 92 v. 277; 88 v. 493. ] Sec, 9139, [Fare can not be increased.] When a lease or purchase is made as above provided, there shall be no increase of the existing rates of fare by reason thereof, nor shall any fare be charged upon any of the separate routes so leased or purchased in excess of the fare charged over such separate routes prior to the lease or purchase thereof. When a lease or purchase is made as herein provided, the fare charged for one continuous route or ride in the same general direction over all such leased or purchased lines within any municipal corpo- ration, shall not exceed the maximum fare charged over any one of such lines prior to such lease or purchase.’ [R. S. See. 2505a; 93 v. 214; 92 v. 277; 88 v. 493.] (1) Remedy for violation of vy. Ry: Co., 23 C. C. 603; 3..C..C. this section by charging unauthor- (N. 8.) 285; but see 73 O. S. 356. ized fares is by quo warranto. State INCLINED PLANE RAILROADS. Sec. 9140. [Powers of inclined plane railway company. ] An inclined plane railway company may construct, operate, and maintain an inclined plane railway, for the conveyance of passengers and freight, or either, with such offices, depots, and other buildings as it deems necessary, and also establish and 941 ELEVATED RAILROADS. § 9141 maintain a park or pleasure grounds, and for such purpose acquire and hold real estate. [R.S. Sec. 3444; 73 v. 229 § 2.] Sec. 9141. [How street crossings to be made.] When the part of the railway of such company which is operated by steam power crosses a public street or highway, it must pass ' either over or under such street or highway, and shall be con- structed in a manner and at such distance above or below it as not to obstruct the ordinary use of the street or highway. [R. S. See. 3445 ; 73 v. 229 § 10.] ELEVATED RAILROADS, Sec. 9142. [Elevated railroads.] A city owning or having charge of any public road, street, alley, way, or ground of any kind, or any part thereof, may grant to any railroad company, street railroad company, suburban railroad company or inter- urban railroad company the right to construct, maintain and operate by electricity, any elevated railroad along and over such public road, street, alley, way or ground, except a public landing, or across them subject to existing laws concerning crossings, so far as they are applicable, and to erect and main- tain therein the necessary tracks, piers, stays, supports and stations, and the approaches therefor, which stations shall be on a level with the track, and when necessary to construct tunnels for such railroad under such roads, streets, alleys, ways or grounds or to construct, maintain and operate by electricity any underground railroad, along and under public roads, streets, alleys, ways or grounds, and to erect and maintain stations, stairways and approaches therefor, and also to con- struct suitable terminals and way stations. [R.-S. Sec. 3283b; 100 v. 70; 99 v. 452.] Sec. 9143. [Elevated structures and crossings must not ob- struct travel; subways must not impair streets nor prevent use of sewers, etc.] Such elevated structures and crossings shall be of such height and construction as not to prevent substan- tially the ordinary use of, and traffic upon, such roads, streets, alleys, ways, or grounds, whether by pedestrians, vehicles, street cars or otherwise, except temporarily when necessary in § 9143-1 THE OHIO MUNICIPAL CODE. 942 the construction of the elevated structures and crossings. Such tunnels for elevated railroads or subways for underground rail- roads shall be constructed as not to impair the stability of the roads, streets, alleys, or public grounds, or prevent the use of any sewers, street railway tracks and appliances, pipes, wires, and conduits used for any purpose in the streets, alleys, ways or grounds except temporarily when necessary in the construc- tion of the tunnel or subways, except as hereinafter provided. And such elevated structures and crossings and such tunnels and subways shall be constructed in accordance with general plans approved by the director of public service of the munici- pality. All such work of construction shall be subject to the supervision and control of the director of public service. [102 v. 179; 100 v. 70; 99 v. 452; R. S. See. 3283b. | Sec. 9143-1. [Changes and removals; filing of plans and: specifications required; approval, notice, hearing, bond; direc- tor may modify or reject plans; sewer, water pipe, etc., may be located in subway without compensation; cost, damage and expense.] The council may grant to the company the right to move, change, elevate, depress, relocate and reconstruct at its sole expense any sewer, sewer connection, catch-basin, water pipe, water connection, natural or artificial gas pipes or con- nections, hydrants, conduits, pipes, wires, street railway tracks and appliances, poles, whether for street railway, electric lighting, heating, power, telegraph, telephone, signal service, or any other purpose, or any other obstruction, which may be encountered in the construction of the underground railroad. Any such company shall before proceeding to move, change, elevate, depress, relocate, or reconstruct any such sewer, sewer connection, catch-basin, water pipe, water connection, natural or artificial gas pipes or connections, hydrants, pipes, wires, conduits, poles and street railway tracks or appliances, or other obstructions, file with the director of public service of the municipality detailed plans and specifications for all of said work. No such work shall be commenced unless such plans and specifications shall first be approved by the director of public service of such municipality, after notice and hearing. and unless such company shall file with the director of publie | | | 943 ELEVATED RAILROADS. § 9143-1 service a bond in such amount and with such sureties as the director of public service may determine, conditioned to in- demnify and save harmless the owners of any such sewer, sewer connection, catch basin, water pipe, water connection, natural or artificial gas pipes or connections, hydrants, pipes, wires, conduits, poles or street railway tracks or appliances, and the owners of any other property situated in, on, under, or near any such road, street, alley, way, or public ground, from all cost and expense of such work and damages resulting from in- juries done thereby. Such director of public service may change, modify or reject any such plans or specifications, and such work of construction shall be performed under the super- vision and control of the director of public service. If such plans and specifications shall locate any such sewer, sewer connection, catch basin, water pipe, water connection, natural or artificial gas pipe or connection, hydrants, pipes, wires, conduits, or any other structures within the gallery, sub- way or tunnel of such underground railroad, the owners of the same shall be entitled to use such space within such gallery, subway, or tunnel, without compensation for such use and occupancy, except a reasonable charge to defray the actual cost of maintenance; provided, however, that if any such sewer, pipe, conduit or other conductor shall be of greater capacity than that existing prior to the construction of such under- ground railroad, the underground railroad shall be entitled to charge for the increased capacity of such conductor and not otherwise. All cost, damage, and expense, incidental to the work of removing, supporting, readjusting and reconstructing any such sewer, sewer connection, catch basin, water pipe, water connection, natural or artificial gas pipes or connec- tions, hydrants, pipes, wires, conduits, poles, street railway tracks or appliances, or other structures, and all cost of supervision by the city shall be borne by and paid for by such elevated or underground railroad. Nothing contained in this act shall authorize the permanent removal or exclu- sion from any such road, street, alley, way or ground of any such sewer, sewer connection, catch basin, water pipe, water connection, natural or artificial gas pipe or connections, hydrants, pipes, wires, conduits, poles, street railway tracks § 9143-2 THE OHIO MUNICIPAL CODE. 944 or appliances, and other structures, authorized to be located therein, except when suitable facilities for such services have been otherwise provided for therein, or to prevent the practical construction, repair, operation and use of the same. [102 v. 179%) Sec. 9143-2. [When the grant of such right and privileges deemed valid.] Any ordinance of any city purporting to grant the rights or privileges, or any of them, contained in this act to any company, and which grant has been accepted and on account thereof money has been expended in good faith, is hereby declared to be as valid and effective as if the power in said city to so grant such rights and privileges had been expressly enumerated in the general municipal corporation act. [102 v. 180.] Sec. 9143-3. [Right to lease space in tunnel or subway.] The council may authorize the company to lease space in its tunnel or subway, for the purpose of placing pipes, conduits, tubes and wires for artificial or natural gas, water, sewer, heat- ing, telegraph, telephone, signal service, United States mail, electricity for light, heat and power purposes, to any company which has been duly authorized by the municipality to engage in and which company is actually engaged in the business in connection with which the use of such space is to be made; provided that such lease shall be made and such space occupied in such manner and on such terms and conditions, as the council may determine and approve. And the council shall have the right to place, or cause to be placed in such tunnel or subway any pipes, lines and conduits for any of its service, including those above named, without charge, except for cost of construction, provided that such placing shall not interfere with the company’s use of the subway. [102 v. 180.] Sec. 9144. [Terms of grant.] Such grant shall only be made upon such terms and conditions as are agreed upon by the council of the city, and the company; and every such grant shall provide for the rate of fare within the limits of such municipality. [110 v. 70; R. S. See. 8283b; 100 v. 70; 99 v. 452.] 945 ELEVATED RAILROADS. § 9145 Sec. 9145. [Appropriation of property.] After such grant has been made such company may appropriate private prop- erty necessary for the use and enjoyment of the grant, includ- ing terminals and way stations, for the purpose of constructing and operating its road in the manner and upon the terms pro- vided by law for the appropriation of private property by corporations. [R. S. Sec. 3283b; 100 v. 70; 99 v. 452.] Sec. 9146. [Damages to other property.] Every company which constructs an elevated track upon or a tunnel or an underground railroad below such roads, streets, alleys, ways or grounds, shall be responsible for injuries done thereby to private or public property, lying upon or near such streets, alleys, ways or grounds, which may be recovered by civil action brought by the owner before the proper court at any time within two years from the completion of the road. [R. S. Sec. 3283b ; 100 v. 70; 99 v. 452. ] Sec. 9147. [Purchase of road by city.] Every city making a grant as provided in the five next preceding sections, may provide in such grant, upon such terms and conditions as are agreed upon by the council of the city, and the company, for the ultimate purchase and ownership by the city of such road or any part thereof. [R. S. Sec. 3283¢; 99 v. 452. ] Sec. 9148. [Company to notify authorities of acceptance or rejection of grant.] Every railroad, street railroad company, suburban railroad company or interurban railroad company, to whom a grant has been made as above provided shall notify in writing the authorities making the grant of its rejection or ac- ceptance of the grant at a time fixed by them at the time of making the grant. If after a grant has been made as above provided, and accepted by any railroad, street railroad com- pany, suburban railroad company or interurban railroad com- pany, within sixty days after such acceptance there is filed with the mayor of the city making the grant a petition protest- ing against it and signed by such a number of the electors of the city qualified to vote at the last preceding general election, as equals ten per cent of the number of votes cast for mayor at the last preceding election for mayor, he shall certify such § 9149 THE OHIO MUNICIPAL CODE. 946 fact to the proper election officials. [R. S. Sec. 3283d; 100 v. 70; 99 v. 452.] Sec. 9149. [Submission of grant to electors.] The officials in charge of such general election, in accordance with the stat- utes relating to elections, shall arrange, provide for and con- duct the submission of such question to such electors. The question whether the grant shall be made shall be submitted to the electors of such city at the next succeeding general elec- tion occurring more than thirty days after the expiration of such sixty days. The ballots at such election if the grant be for the construction of elevated tracks shall read ‘‘ Elevated Railroad Grant—Yes’’. ‘‘Elevated Railroad Grant—No’’. If the grant be for the construction of underground tracks they shall read ‘‘Underground Railroad Grant—Yes’’. ‘‘Under- ground Railroad Grant—No’’. If the grant be for the construc- tion of partly elevated and partly underground tracks, they shall read ‘‘Elevated and Underground Railroad Grant—Yes’’, ‘‘Rlevated and Underground Railroad Grant—No’’. If at such election a majority of the votes cast on such question be against such grant, it shall be ineffective and void.t [R. S. See. 83283d; 100 v. 70; 99 v. 452. ] 1) Blank ballots cannot be counted as votes. Brush v. Orgill, 9 N. P.. (N. S.) 633. EQUIPMENT. Sec. 9007-1. [Seats for conductor and motorman.] That it shall be unlawful to operate in Ohio any electric, street or interurban railroad’ car unless it be provided at all times during operation with seats for the motorman and conductor. [107 v. 590.] Sec. 9007-2. [Penalty for failure to provide seats.] A vio- lation of section 1 hereof shall constitute a violation thereof by the president, general manager, general superinténdent, or other officer in charge of operation, and shall be punish- able by a fine of not less than fifty dollars nor more than one hundred dollars, or by imprisonment for not less than ten nor more than thirty days for each offense. An offense 947 ELEVATED RAILROADS. § 9007-3 on any calendar day- and as to any car shall be a separate and distinct offense from a violation on any other such day. [107 v. 590.] Sec. 9007-3. [Prosecution.] It shall be the duty of the prosecuting attorneys of the various counties to prosecute violations of this act. [107 v. 590.] Sec. 9149-1. [Air brakes required on urban and interurban cars.] That from and after January 1, 1924, it shall be un- lawful in the state of Ohio, for any corporation, company, person or persons owning or controlling the same, to operate, use or run or permit to be run, used or operated for carrying passengers or freight on an urban or interurban railroad or street car line, any car propelled by electricity, or any car, cars or train of cars drawn by any car or ears propelled by electricity not equipped, in addition to the hand brake in use on such ear, cars or train of cars with an air or electric power brake so that the same can be operated and controlled by the motorman in charge of and operating such car, cars or train of cars. It shall be the duty of the public utilities commission of Ohio to enforce this act. [109 v. 142; 101 v. 209.] Sec. 9149-2. [Penalty.] Repealed, 109 O. L., 142. Sec. 9149-3. [Protection of third rails.] That every com- pany or person having the control or management of an elec- tric, interurban, or street railroad, which operates its cars by electricity conducted through or along a third rail, shail construct, or cause to be constructed, and maintain in good repair on each side of its right of way through which such third rail extends, a fence sufficient to turn stock; and such company or person shall cause to be maintained at every point where any public road, street, lane, or highway crosses such railroad, safe and sufficient crossings, and on each side of such crossings cattle-guards sufficient to prevent domestic animals from going upon said railroads; and every such company or person shall be liable for all damages sustained in person or property in any manner by reason of any neglect § 9149-4 THE OHIO MUNICIPAL CODE. 948 or carelessness in the construction or maintenance of any such fence, crossing or cattle-guard, whether such damage be sustained from the contact of said domestic animals with said ears or from contact with, or by reason of, electricity passing through or along such third rail. Provided, how- ever, that the provisions of this act shall not require the building and maintenance of such fence between the right- of-way of such electric, interurban, or street railway, and the right-of-way of any steam or electric railway where said rights-of-way are parallel and abut upon each other, and such steam or electric railway maintains a fence on the opposite side of its right-of-way. [103 v. 197.] Sec. 9149-4. [Adjacent owners may build fence.] If any such company or person neglect or refuse to construct and maintain such fence as provided in the preceding section, the owner of any land abutting on the line of the right-of- way of such person or company may construct the fence thereon as herein provided for, so far as his lands abut on the right-of-way; and when he has completed the same, he may present for payment, to the ticket agent of the company at the station nearest the track so fenced, an itemized statement of the expenses thereof; and if such person or company neg- lect or refuse for thirty days to pay such account, such land owner may recover the reasonable cost of such fence from the owner of the road, in any court of competent jurisdic- tion. [103 v. 197.] Sec, 9149-5. [Killing of animal as evidence.] If any do- mestic animal shall receive any injury or be killed upon such right-of-way, either by coming in contact with a moving ear, or by reason of the electricity contained in or passing through a third rail of such railroad, such injury or death shall be prima facie evidence that the person or company operating said railroad has failed to comply with the re- quirements of this act. [103 y. 197.] Sec. 9149-6. [Center aisle, length of car in street or inter- urban cars required.] That it shall be unlawful for each and every street or interurban railroad company in said 949 ELEVATED RAILROADS. § 9149-7 state, or its president, general manager, general superin- tendent, or other officer in charge of operation, to permit or cause to be operated in the state of Ohio any car for the carriage of passengers, or upon which passengers are car- ried, not having parallel with the tracks upon which such car is being operated a center aisle running the length of the car and suitable for quick and easy passage to and fro on the part of the employes of such company and the travel- ing public. [107 v. 602.] Sec. 9149-7. [Certain officers deemed violators.] A viola- tion of this act shall be deemed a violation hereof by the president, general manager, general superintendent, or other officer in charge of operation, of any such company. [107 v. 602. ] Sec. 9149-8. [Fine and imprisonment.] Any violation of this act shall be punishable with a fine of fifty dollars, coupled with imprisonment for not less than 10 days, nor more than thirty days, and each day’s violation shall con- stitute a separate and distinct offense apart from violation on any other day or days. [107 v. 602.] Sec. 9149-9. [Prosecution.] It shall be the duty of the prosecuting attorneys of the various counties to prosecute violations of this act. [107 v. 602.] Sec. 9149-10. [When act shall take effect.] This act shall go into effect on and after April 1, 1920. Provided, however, that on and after ninety days after the filing of this act with the secretary of state, it shall be unlawful to put into the service of any street or interurban railroad, within the state, any car or cars other than those said railroad compa- nies now have in service, unless they be constructed and equipped as provided in this act. And beginning with April 1, 1917, said companies shall reconstruct and equip each year thirty-three and one-third per cent of such of their cars as do not meet the requirements set out in this act, so that they will be in conformity with the said requirements, thus § 12788 THE OHIO MUNICIPAL CODE. 950 having by April 1, 1920, no cars in service that do not meet the requirements of this act. [107 v. 602.] Sec. 12788. [Screen for protection of motormen and con- ductors required; temperature of 60 degrees to be main- tained.] Whoever, being an officer, agent, or employe in authority, of a corporation, individual, or asso- ciation, directs or permits to be operated an electric ear, other than a trail car (whether such electric car be a pas- senger car, a freight car, a sweeper or other car), unpro- vided at the forward end with a screen of glass or other material sufficient to completely protect from dust, wind and storm the motorman or other person or persons sta- tioned there for guiding or operating such car, or who fails to maintain during the entire period succeeding October 31st of each year and ending on each succeeding April 15th, within any electric car so being operated, whether a passen- ger car, a trail car, or other car (except in freight cars) and (excepting in trail cars) within the space behind any such screen, a temperature at all times of not less than sixty de- grees Fahrenheit, shall be fined not less than twenty-five dollars nor more than one hundred dollars, for each day during which at any time such a car is operated while so un- provided, or while such temperature is not so maintained. It shall be the duty of the prosecuting attorneys of the vari- ous counties of the state of Ohio to enforce the provisions of this set. © [108 ves161 98 vy. 5-790 v.-220.] Sec. 12788-1. [Operation of cars without closet and drink- ing water unlawful; penalty.] Whoever engages in the op- erating of interurban car or ears, for a greater distance than ten miles between the corporate limits of municipalities, shall be required to place and maintain within such ear or ears, so run or operated, a water closet or dry hopper closet, properly and sanitarily constructed, and suitable drinking ‘water for the use of the passengers of such car or cars. It shall be the duty of the public utilities commission of Ohio to enforce this act. [109 v. 234; 108 v. 64.] 951 - PUBLIC UTILITIES COMMISSION REGULATIONS. § 9169-3 TERMINAL DEPOTS. Sec. 9169-3. [Powers.] [§3.] Such companies? shall have power to receive grants from the council of a municipality for the use of its streets or alleys upon the same terms as street railways and said grant shall continue as long as the grants and renewal or reletting thereof to any interurban or street railway connecting with the same; to construct, maintain and operate railway lines upon the streets or alleys of a municipality to connect its depot with other street or inter- urban railways; to build, keep, maintain and operate union electric interurban terminals and depots for electric cars and trains; to contract for the use of their tracks for the operation of the cars of any interurban, street or other electric railway company and for furnishing them terminal depot facilities; and any interurban, street or other electric railway company shall have power to contract with such union interurban ter- minal and depot company for the use of their tracks and for terminal depot facilities. [101 v. 168.] (1) Union Interurban Ter- for by §§ 9169-1 G. C. et seq., are minal Depot companies, provided _ referred to. : PUBLIC UTILITIES COMMISSION REGULATIONS. Sec. 504-2. [Abandonment of track, depot, line, pumping station, etc.; forfeiture.]1 No railroad as defined in section 501 of the General Code, operating any railroad in the state of Ohio, and no public utility as defined in section 614-2a of the General Code furnishing service or facilities within the state of Ohio, shall abandon or be required to abandon or withdraw any main track or tracks or depot of a railroad or main pipe line, gas line, telegraph line or telephone toll line, electric light line, water line or steam pipe line, or any portion thereof, pumping station, generating plant, power station, or service station of a publi utility, or the service rendered thereby, which has once been laid, constructed, opened and used for public business, nor shall be closed for traffic or service thereon, therein or thereover except as pro- vided in section 504-3. Any railroad or public utility vio- lating the provisions of this section shall forfeit and pay § 504-3 THE OHIO MUNICIPAL CODE. 5052 into the state treasury not less than one hundred ($100.00) dollars, nor more than one thousand ($1,000.00) dollars, and shall be subject to all other legal and equitable remedies for the enforcement of the provisions of this act. 107 v. 525.] (1) Validity—This section so far as it attempted to make the divisions thereof applicable “to all such service now rendered and facilities furnished” is unconstitutional. Gas Co. v. Cleveland, 106 O. S. 489. See Sec. 504-3. [Application to hearing upon abandonment. ]* [108 v. 372; Cleveland v. Gas Co., 15 Oh. App. 117. Abandonment of interurban rail- road.—See Commissioners v. Pub. Util. Com. 107 O. 8., page 442. commission for abandonment; Any such railroad or any po- litical subdivision desiring to abandon, close, or have aban- doned, withdrawn or closed for traffic or service all or any part of such main track or tracks, or depot, and any such public utility or political subdivision desiring to abandon or close, or have abandoned, withdrawn or closed for traffie or service all or any part of such line or lines, pumping station, generating plant, power station or service station, shall first make application to the public utilities commission in writing who shall thereupon cause reasonable notice thereof to be given, stating the time and place fixed by the commission for the hearing of said application. Upon the hearing of said application said commission shall ascertain the facts, and make its finding thereon, and if such facts satisfy the com- mission that the proposed abandonment, withdrawal or clos- ing for traffic or service is reasonable, having due regard for the welfare of the public and the cost of operating the service or facility, they may allow the same; otherwise it shall be denied, or if the facts warrant, the application may be granted in a modified form. Provided, however, that should the application ask for the abandonment or with- drawal of any main track, main pipe line, gas line, tele- graph line or telephone toll line, electric light line, water line or steam pipe line, pumping station, generating plant, power station, service station, or the service rendered there- by, in such manner as can result in the permanent abandon- ment of service between any two points on such railroad, or of service and facilities of any such public utility, no appli- § 614-29 953 PUBLIC UTILITIES COMMISSION REGULATIONS cation shall be granted unless the company or public utility shall have operated said track, pipe line, gas line, telegraph line or telephone toll line, electric light line, water line, or steam pipe line, pumping station, generating plant, power station or service station for a period of at least five years, and such notice shall be given by publication in a newspaper of general circulation throughout any county or munici- pality which may have granted a franchise to said company or public utility, under which said track, pipe line, gas line, telegraph line or telephone toll line, electric light line, water line or steam pipe line, pumping station, generating plant, power station or service station is operated or in which the same is located, once a week for four consecutive weeks be- fore the hearing of said application, and notice of said hear- ing shall be given such county, municipality or public utility in the manner provided for the service of orders of the com- mission in section 614-71 of the General Code, and except that the provisions of section 504-2 and 504-3 shall not apply to a gas company when removing or exchanging abandoned field lines. | The provisions of this section shall apply to all such serv- ice now rendered and facilities furnished or hereafter built and operated, and an order of the commission authorizing the abandonment or withdrawal of any such service or facility shall not affect rights and obligations of a railroad or public utility beyond the scope of said order, anything in its fran-_ chise to the contrary notwithstanding. [108 v. 373; 107 v. 525, ] (1) Validity.—This section in so far as it attempted to make the divisions thereof applicable ‘‘to all such service now rendered and facilities furnished’’ is unconstitutional. Gas Co. v. Cleveland, 106 O. S. 489. See Cleveland v. Gas Co. 15 Oh. App. 19:7. The public utilities commission by virtue of the powers conferred upon it by Section 504-8, General Code, may allow a gas companv to dis- continue service to a municipality, if satisfied that the gas company no longer has a supply of gas and is unable to procure by contract a supply from another gas company or pipe line company. St. Clairsville v. Pub. Util. Com., 102 O. S. 574. Sec, 614-29. [Use of equipment over street, etc., by other public utility.]' [§ 31.] Every public utility having any equip- § 614-30 THE OHIO MUNICIPAL CODE. 954 ment on, over or under any street or highway, shall, subject to the provisions of section 9103 of the General Code, for a reason- able compensation, permit the use of the same by any other public utility whenever the commission shall determine as pro- vided in section 32 hereof [G. C. § 614-30] that public con- venience, welfare and necessity require such use, or joint use, and such use or joint use will not result in irreparable injury to the owner or other users of such equipment, nor in any substantial detriment to the service to be rendered by such owners or other users. [102 v. 558.] (1) Public Utilities which are act requiring one utility to use owned or operated by a municipal- the poles or equipment of another ity are not included within the utility. Op. Atty. Gen. (1912), p. provisions of the public utilities 1783. Sec. 614-30. [Application on failure to agree.] [§32.] In ease of failure to agree upon such use or joint use or the con- ditions or compensation for such use or joint use, any public utility may apply to the commission, and if after investigation the commission shall ascertain that the public convenience, welfare and necessity require such use or joint use and that it would not result in irreparable injury to the owner or other users of such property or equipment, nor in any substantial detriment to the service to be rendered by such owner or other users of such property or equipment, said commission shall by order direct that such use or joint use be permitted and pre- scribe reasonable conditions and compensations for such joint use. [102 v. 558.] Sec. 614-31. [Conditions and compensation.] [§ 33.] Such use or joint use so ordered shall be permitted and such con- ditions and compensation so prescribed shall be the lawful conditions and compensation to be observed, followed and paid, subject to recourse to the courts by any interested party as provided in this act. Any such order made by the commis- sion may be revoked or from time to time revised by the com- mission. [102 v. 558.] . ais STEAM RAILROADS IN MUNICIPAI, LIMITS. CROSSING REGULATIONS.! Sec, 588. [Gates, bells, devices, or flagmen at crossing.] If, in its opinion,’ the public safety requires that a gate or gates, automatic alarm-bell, or other mechanical device be erected and maintained at any place where a public road or street is crossed at the same level by a railroad, and the cross- ing has been declared by the commission to be dangerous, or the public safety requires that a flagman be stationed and maintained at such dangerous crossing, the commission shall give the superintendent, manager or other officer in charge of such railroad, a written notice of what is required, and such company, person or corporation owning or operating such rail- road shall erect such mechanical device or station such flagman within the time prescribed by the commission.* [R. S. See. 247a; 91 v. 353; 86 v. 367.] (1) Speed regulations— care. Street Ry. Co. v. Murray, 53 Power of municipality to regulate speed of steam railroad locomotives and cars in corporate limits, see § 3781, ante, in Part I. (2) Public utilities commission. —This section and §§ 590, 594 and 595 are part of the first chapter of Division 2, Title 3, Part First, re- lating to the railroad commission (later the public service commis- sion, 102 O. L. 549), and now the public utilities commission, (103 O. L. 804 et seq. (3) Duties of flagman.—See Ry. Co. v. Schneider, 45 O. S. 678. Flagmen and railroad company are chargeable only with ordinary O. S. 570, 583. Municipality has no power to require watchman at a crossing within the corporate limits. Ra- venna v. Penn. Co., 45 O. S. 118. Liability of company.—Per- sons crossing tracks have right to presume that gateman is exercising due diligence. Ry. Co. v. Schneider, 45 O. S. 678. Company is liable in damages to person injured if it fails to exer- cise due care at crossings. Ib. Street railway crossing track. —See § 9125, ante, under “Street Railroads.” Street railway company employes 955 § 590 are not relieved from duty of stop- ping the car and going forward, as required by § 9125 because the flag- man has signalled that crossing is THE OHIO MUNICIPAL CODE. 956 Penalty is provided in § 589 Ge G, Expense of erection and main- tenance of gates to be divided when open. St. Ry. Co. v. Murray, 53 QO. “Ss 570;7583> “$588 ‘and™'$/9125 are not in pari materia. Ib. two or more railroads cross a pub- lic highway or street. See § 591 Gs C2 Sec. 590. [Regulations as to gates, bells, and devices.] All gates, bells or devices erected under the direction of the com- mission shall be built within the time, in the manner and of materials approved by the commission. Such gates shall be located in the highway or street on one or both sides of the railroad track or tracks, as the commission deems the public safety requires, and shall be so constructed that when closed, they shall obstruct or prevent passage across such railroad or railroads from the side on which a gate is located. Such bell must be so constructed that it will ring before the approach of every train of cars or locomotive within three hundred feet or more of such crossing, and continue to ring until such train or locomotive has reached the crossing. A person shall be in charge of such gate who shall close it at the approach of each train or locomotive, and keep it open at all other times. If an automatic bell or other mechanical device is required at such crossing, the railroad shall keep such bell or device at all times in good working order, and for every neglect of duty imposed by this section such railroad shall forfeit and pay the sum of twenty-five dollars. [R. S. Sec. 247b; 91 v. 353; 86 v. 367.] ‘Sec. 594. [Safety devices at grade crossings.] When two steam railroads, a steam railroad and an interurban, electric or street railway, two interurban railroads, or a steam or elec- tric railroad and a street or highway cross at grade, if, in _ its opinion, public safety requires protection, the railroad com- mission, upon its own motion or upon complaint, after notice to the railroads interested and full investigation, may make an order requiring the railroads so intersecting and crossing to install such device or devices as in the opinion of the commis- sion will properly protect such crossing. [99 v. 390 § 2; 92 v. 315; Bates, 247e.] 957 STEAM RAILROADS IN MUNICIPAL LIMITS. § 595 Sec. 595. [Commission may make order as to a crossing.] The railroad commission may make any further or other orders regulating the speed and running of trains or of cars and the switching of cars over such crossing or street, and it shall ap- portion the expense of installation or maintenance of such device or devices between the railroad companies whose tracks are thus protected. [99 v. 390 §2; 92 v. 315; Bates, 247e.] CONSTRUCTION. Sec. 8745. [Six main tracks.] A railroad company may maintain and operate, or construct, maintain and operate a railroad, with such main tracks, not exceeding six and such side tracks, turnouts, offices, depots, round-houses, machine shops, water tanks, telegraph lines, and other necessary ap- pliances, as it deems necessary, between the points named in its articles of incorporation, commencing at or within, and extending to or into any city, village, or place named as a terminus of its road.t_ [101 v. 323; R. S. See. 3270; 99 v. 71; 69 v. 203.] (1) Railroad may be constructed O. S. 445; Cincinnati Interterminal with both terminals in the same _ Ry. v. Murray, 1 N. P. (N.S.) 301. municipality. State v. Railway, 72 Sec. 8758. [Electricity as motive power.] Upon any rail- road in this state, electricity may be used as a motive power in the propulsion of cars. But before a line of poles and wires may be constructed through or along the streets, alleys, or public grounds of a municipal corporation, plans of the construction must be submitted to and approved by its coun- eil. [91 v. 397, § 1; Bates, 3310-1.] Sec. 8759. [Appropriation of land; entry upon for exami- nation or survey.] A company, domestic or foreign, or mu- nicipal corporation which owns or operates a railroad may enter upon any land for the purpose of examining and sur- veying its railroad line, and appropriate so much thereof as is deemed necessary for its railroad, including necessary side-tracks, depots, workshops, round-houses, and water- stations, material for construction, except timber, a right- of-way over adjacent lands sufficient to enable it to econ. THE OHIO MUNICIPAL CODE. § 8763 958 struct and repair its road and the right to conduct water ; by aqueducts and to make proper drains. [106 v. 347; R. S., § 8281; 91 v. 294; 50 v. 274.] Sec. 8763. [Elevated track; use of public way.] If in the location of any part of.a railroad owned or operated by a domestic or foreign corporation, it be necessary to occupy with a surface or elevated track, with the necessary supports there- for, any public road, street, alley, way or ground, of any kind, or part thereof, the municipal or other corporation or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms and condi- tions upon which it can be used or occupied.' In the event of the occupancy of such ground with an elevated track, the agreement shall specify the number, character and location of all supports for the track, any part of which will be upon such public ground, and the vertical and longitudinal clear- ances between such supports.’ 54 v. 183 §12; (S. & C. 278).] (1) Scope of section.—The re- quirement that before a railroad occupy a street or public way it must agree with the company may authorities controlling the street or public way, or condemn, is not lim- ited by § 8773 providing that the company may divert, a road, etc., which it crosses, and in order to cross a street or public way section 8763 must be complied Youngstown v. Railroad, 3 C. C. 214; Cincinnati Northern R. R. v. Cincinnati, 8 'B. 334. The power to fix a terminus with- with. in a municipality does not imply the power to cross intervening streets, and before such crossing can be made section 8763 must be complied with. Ib. The powers conferred on munic- ipal corporations with respect to opening, improving and _ repairing streets and public ways, are held in [R. S. Sec. 3283; 99 v. 589; trust for public purposes and are continuing in their nature, to be exercised from time to time as pub- lic interest may require; and they cannot be granted away or relin- quished, or their exercise suspend- ed or abridged except when, and to the extent legislative authority is expressly given to do so. Rail- road v. Defiance, 52 O. S. 262. As to power of council to grant longitudinal use of the street, prac- tically excluding the public, see Cleveland, ete. Ry. Co. v. East Liverpool, 51 B. 599. There is no power or authority in a municipal council to grant the right to a railway company, either by ordinance or agreement with the company, to occupy, in- cumber and use a street by cross- ing it with five tracks connecting with a railway yard and in reality becoming a part of the yard, 959 particularly where access to the yard can be had without thus oc- cupying the street; nor could the right so to do be acquired by appropriation. Cincinnati v. Rail- way, 24 C. OC. (N. S.) 305. As to construction of this section in connection with statutes abolish- ing grade crossings, see further, Ritter v. Railway, 18 Dec. 846; 6 Ne.PatN2S,) 161. Under this section before amend- ment of 1908, it was held that the municipality had no power to agree with a railway company for the permanent and exclusive occupation of a part of a public street with abutments to support an overhead crossing of a railroad, and that such occupation could not be gained by means of appropriation. See Railroad Co. v. Defiance, 52 O. S. 263; L. S. & M. S. Railway Co. v. Elyria, 69 O. S. 414. See further, L. & N. R. R. Co. v. Cincinnati, 76 O. S. 481. As to the effect of § 8849, see ‘Cincinnati v. L. & N. R. R. Co., 16 Dec. 628; 4. N. P. (N.*S.)° 217. State board of public works can- not authorize a railroad, under pow- ers conferred by this section, to con- struct a road on the berm bank of a canal. State ex rel. v. Railroad, Se On(S.aLB7: Power to lay a track across a street, conditioned that street be restored to its former state, does not authorize company to appropri- ate the highway so as to materially interfere with public travel. Rail- road v. Comm’rs, 31 O. S. 338. And a municipal corporation can- not grant the exclusive use of streets to one railway company to the ex- clusion of all others. Railroad v. Railroad, 36 O. S. 251. STEAM RAILROADS IN MUNICIPAI. LIMITS. § 8763 The municipal corporation can- not fix the compensation to be paid for the use of a track belonging to another corporation. Such compen- sation must be fixed by a jury. Jb. The city authorities may give per- mission to lay branch tracks for convenience of shippers. P. C. & St. L. R. R. v. Cincinnati, 16 B. 367 (afl’d no report 24 B. 416). A court can not declare that the laying of five railway tracks in the street constitutes an un- reasonable and unwarranted dis- regard of the rights of the public in the street and therefore should be enjoined, but the question is one of fact which must be de- termined from all the cireum- stances in the case. Cincinnati v. Railway, 15 N. P. (N. 8.) 317; but see s. c., 24 C. C. (N. S.) 305. A resolution passed by a village council providing that for certain consideration, a railway company should have the use and occupation of a specified street, is neither a grant to the company of the land within the bounds of the street, nor a vacation of the street, but at most is a permission to the company to occupy the street for railway pur- poses. Ry. Co. v. Hartford, 15 Ohio App. 305. Occupation of streets by agreement.—An agreement by a municipality with a railroad grant- ing use of streets, agreeing to make and gravel streets, cannot be rescinded without consent of railroad, and railroad is not re- the company leased from making streets. Rail- way v. Carthage, 36 O. S. 631. Railway company must make street in a reasonable time or a right of action accrues to munic- ipality, and this without notice. Jb. § 8764 The manner of use may be pre- scribed by anunicipality and must be observed by court unless fraudu- lent. Sargent v. O. & M. R. R., 1 Handy 52. But a condition cannot be attach- ed by a municipality compelling the railroad to keep a watchman at a crossing. Ravenna v. Pennsylvania Co., 45 O. S. 118, 123. The county commissioners are au- thorized by this section to contract with a railroad company as to the manner, terms, and conditions upon which .said company shall occupy a portion of a public road. Me- grue v,. Comm’rs, 15 C. C. 242. THE OHIO MUNICIPAL CODE. 960 If a railroad company cannot agree with the authorities of a mu- nicipal corporation, it may resort to the courts, in accordance with the terms of the provisions of §§ 11038, et seq., G. C. State ew rel. v. Railway, 37 O. S. 157, 170. See § 8764, post. Validity.—This section is valid. Cincinnati v. L. & N. Ry. Co., 9 N. P. (N. 8.) 488, 20 Dee. 440 (aff'd 82 O. S. 466). (2) Elevated structure, under the section as amended in 1908, see Cincinnati v. L. & N. Ry Co., 9 N. P. (N. 8S.) 483, 20 Dee. 440 (aff’d 82 O. 8. 466). Sec. 8764. [Appropriation of property for elevated track.] If the parties are unable to agree thereon; and it be necessary in the judgment of the directors of such company, to use or occupy such road, street, alley, way or ground, or a part thereof, for surface tracks, or for crossing with an elevated structure when no piers, supports or obstructions are to be placed therein, the company may appropriate so much thereof as is necessary for the purposes of its road, in the manner and upon the terms provided for the appropriation of the property of individuals. [R. 8S. Sec. 32838; 99 v. 589; 54 v. 183; (S. & C. 278).] (1) Object of appropriation is to acquire such use of the street for surface tracks as could have been granted by agreement and no greater use can be obtained in the one mode than in the other; the right acquirea in either case is lim- ited to the use of so much of the street as may be necessary for tha purposes of the railroad. Neither agreement nor appropriation with- draws the authority over any part of street from the control and su- pervision of the proper municipal officers. Railroad Co. v. Defiance, 52 O. S. 262, 309; 167 U.S. 88. A railroad company has not the absolute right to appropriate pub- lic streets of a municipality for an unlimited number of tracks over and across the same, but the cout in which the appropriation procee4- ings are commenced is required to determine the reasonableness of the appropriation sought to be made. Rockport v. Cleveland, et¢., Ry. Co., 85 O. S. 73. Appropriation of a_ street for 961 railroad yards is not authorized, necessity of use of street for suzn yards does not show necessity for appropriation within meaning of this section. Jb. Appropriation of ground leased from municipality—See Railway v. Cincinnati, 16 N. P. (N. 8.) 587. Occupying without appropria- tion. —- Where company occupies street without agreement or appro- priation, a property owner whose property is injured is not limited to the remedy in § 8765 but may bring an action to compel appropri- ation. Railroad Co. v. Williams, 35 O. S. 168; Railroad Co. v. O’Harra, 48 O. S. 343; Valley Ry. Co. v Pouchot, 4 C. C. 187, And the limitation on such action to compel appropriation is twenty- STEAM RAILROADS IN MUNICIPAL LIMITS: § 8765 one years. Railroad Co. v. O’Harra, 48 O. S. 343. Determination of directors, necessity of, see Cleveland & P. Ry. Co. v. East Liverpool, 51 B. 599. Character of crossing.—In con- denmation proceeding, the right to cross only is determined; the court cannot determine whether the cross- ing shall be at grade or overhead; proceedings for determining the character of the crossing are else- where provided. Toledo v. Toledo E. ete., Ry. Co., 29 C. C. 656; 9 CrGe(N. 8a), 399% Determination by common pleas court of the right to cross, as pro- vided in §§ 8898 et seq., is a pre- requisite to proceedings in probate court to condemn the crossing over a street or alley at grade. Youngs- town etc. Ry. Co. v. Hast Liverpool, LOAN UP. TN Sle bon od (Nemo) 493. (2) Ordinance to proceed.— For form, compare form under § 3825, ante, in Part I. Sec. 8886. [Payment of railroad company’s proportion of cost.] The council of such municipality, may by ordinance prescribe the manner and time or times of payment by such railroad company or companies of the proportion of the cost of such improvement which the railroad company or companies shall be required to pay. [98 v. 191 §3; Bates, 3337-17c; 95 v. 358. ] Sec. 8887. [Height of viaduct.] Any way, crossing or via- duct so constructed over a railroad track or tracks in any municipality shall be of such height as not to be of less than twenty-one feet in the clear from the top surface of the rails in the railroad track to the lowest point of projection of such overhead way, crossing or viaduct, unless such company con- sents to, or the common pleas court orders a less height. But in no event shall such court order a less height than sixteen § 8888 THE OHIO MUNICIPAL CODE. 984 feet and three inches. [100 v. 80 §4; Bates, 3337-17d; 95 v. 358.] Sec. 8888. [How necessary land acquired.]’ The land or property required to make alterations in the street, road, alley ‘ or other way or any right, title or interest in a public street, alley or other way, required for the erection of piers or sup- ports in any municipality, necessitated by the proposed im- provement, shall be purchased or appropriated by the muni- cipality or company after the manner provided by law for the appropriation of private property for public use. The land or property required to make any alteration in a rail- road or railroads or any right, title or interest in a public street, road, alley or way required to permit the erection of piers or supports in any municipality, and structure necessi- tated by the proposed improvements, shall be purchased or appropriated by the railroad company or companies after the manner provided for the appropriation of private prop- erty by such corporation. But the municipality shall not appropriate land held or owned by a railroad company and necessary for the use of the company in maintaining and op- erating this road. [103 v. 268, 269; 100 v. 80, §5; Bates, 3337-17e; 95 v. 358. ] (1) As to right of abutting land vacated street adjacent to new owner to compensation and dam-_ street, see Port Clinton v. Fall, ages where property abuts on a 99 O. 8S. 153. Sec. 8889. [Cost of maintenance.] After the completion of the work the crossings and approaches shall be kept in repair as follows: When the public way crosses a railroad by an overhead bridge, the cost of maintenance must be borne by the municipality. When the public way passes under the railroad, the bridge and its abutments shall be kept and maintained by the railroad company, and the public way and its approaches be maintained and kept in repair by the munic- ipality in which they are situated. [95 v. 359 §6; Bates, 3337-17f. ] Sec. 8890. [Bond issue.] For the purpose of raising the money to pay the proportion of the cost of such improvement y 985 STEAM RAILROADS IN MUNICIPAL LIMITS. § 8891 payable by the municipality, the bonds of the municipality may be issued in the necessary amount and shall be of such denomination and payable at such place and times as the council determines, and bear interest not exceeding six per cent per annum, and shall not be sold for less than par value." [109 v. 530; 103 v. 268, 269; 100 v. 80, §7; Bates, 3337-17; 95 v. 359. ] (1) Bonds issued to pay mu- Longworth act. Cleveland v. Cleve- nicipality’s portion of cost were held land, 18 Dec. 619; 7 N: P(N) subject to the limitations of the 249, (aff’'d, 76 O. S. 594). Sec. 8891. [Tax levy.] A tax on the taxable property of the municipality in addition to all other levies now allowed by law may be levied to pay the principal and interest of such bonds as they mature. After completion of the improve- ment, a tax in addition to all other levies allowed by law may be levied by the municipality to pay the cost of maintaining and keeping in repair that part of the work required to be maintained and kept in repair by the municipality. [100 v. 80 § 7; Bates, 3337-17g; 95 v. 359.] Sec. 8892. [Street railway company to bear share of expense.]! In case the track or tracks of any street railway company or companies within the limits of a municipality where the improvements hereinbefore authorized are made, cross at grade or otherwise a public street or the right of way of any railroad company or companies at a point where, under the plans and specifications above provided for, it has been determined to construct such improvements, the munici- pality by ordinance may require such street railway company or companies to bear a reasonable proportion of the cost assumed by it, in making the improvement, not exceeding one- half the portion payable by the municipality; and it shall have a right of action against such street railway company or companies for that part of the cost which the ordinance requires it or them to bear.2. Such part of the cost also shall be a lien upon all the property, real and personal, of such company or companies situated in the same county with the § 8893 THE OHIO MUNICIPAL CODE. 986 municipality from and after the date of the passage of such ordinance. (1) Walidity.—§§ 8892, 8893 and 8894 are constitutional. Traction Co. Vv.) Akron, 23-0. C. CN. 8.) 4973. (ait’d 91° 0.28, 382). (2) Right not limited by franchise. — A street railway franchise in the street in no way limits the right of the municipal- ity to change either the grade or the location of the street as the public necessity or convenience may require, particularly where the reasonableness of the change is not questioned, and the trac- tion company must adapt its tracks to the changes so made. Cincinnati v. Traction Co., 25 C. BI CNe 8518, [98 v. 192 § 8; Bates, 3337-17h; 95 v. 359.] provement without notice to such company. Cincinnati v. Traction Co.,-20.'C. CCN. 8.) 518: Reasonable proportion. — The municipality may, by ordinance, fix the amount to be paid by the company and institute an action in court for its recov- ery, but the recovery in such case will not be as upon a judg- ment, but tor such amount as the jury shall determine to be a reasonable portion of the cost of the improvement. Traction Co: .¥wAkron, 923), Con€. -GNs Se) 497 (aff’d 91 O. 8S. 382). A judgment, based upon a verdict, against the traction com- Traction company not necessary party to contract.—A municipality in contracting with a steam rail- way company for the elimination of a grade crossing is not bound to make the traction company oc- cupying the street a party thereto, but may proceed with the im- pany occupying the street for its share of the cost of the im- provement, which was fixed at $61,220.09, which was something less than one-half of the share paid by the city; held reason- able. Cincinnati v. Traction Co., De AO BOF GNIR TS) OO Bs Sec, 8893. [Time and manner of payment of proportion.] The council of such municipality may by ordinance provide the mode and time or times of payment for the proportion of the cost of such improvement to be borne by such street rail- way company or companies. [98 v. 192 § 8; Bates, 3337-17h; 95 v. 359.] Sec, 8894, [Repairs.] Such street railway company or companies shall keep in repair at its or their own expense all tracks affected by such improvement and all construction work of whatever character, necessary to support such tracks. [98 v. 192 § 8; Bates, 3337-17h; 95 v. 359.] Sec. 8895. [Crossings to be above or below grade.] Except as hereinafter provided, all crossings, hereinafter constructed, STEAM RAILROADS IN MUNICIPAL LIMITS. 987 § 8896 whether of highways by railroads, or of railroads by high- ways, shall be above or below the grade thereof.t [97 v. 546 § 1; Bates, 3337-17). ] Power of court.—Determination by court does not dispense with (1) ‘Applies to steam rail- roads only.—Commissioners _ v. Traction Co., 75 O. S. 548; In re. Wie ek, © bys Co., +16. Dee: 87; 3.N. P. (N. S.) 561. agreement with municipality or con- demnation. Ib. Sec. 8896. [Railroad crossings.] Every railroad company building a new line of road, under its charter powers, across a highway, shall construct it.above or below the grade of the highway, unless in the manner hereinafter provided, allowed to build it at grade. Such company may exercise the power contained in its charter and the general laws, for altering the grade and location of highways in order to avoid grade crossings. [97 v. 546 § 2; Bates, 3337-17k.] Sec. 8897. [Highway crossings.]} Every municipality or other authority hereafter building a highway across an exist- ing railroad, shall construct it above or below the grade thereof, unless in the manner hereinafter provided allowed to build at grade. The cost of such work shall be paid, thirty- five per cent by such municipality or other authority, and sixty-five per cent by the company owning the railroad. The word ‘‘railroad’’ shall include interurban railroads and the words ‘‘railroad company’’ shall include interurban railroad companies engaged in the operation of cars by electricity or other lawful motive power which said companies may adopt or use. The method or procedure for the construction of such highway and the manner of construction thereof shall be governed by the statutes regulating the abolition of grade crossings. [103 v. 501, 502; 97 v. 546, §3; Bates, 3337-171.] (1) Validity—This and the both sections may be tried in succeeding two sections are valid and constitutional. They do not operate to supersede the provis- ions of section 8677 nor in any- wise modify its provisions. Un- der proper pleadings all the ques- tions to be determined vunider one proceeding by the court of common pleas. Railroad Co. v. Martins Ferry, 92 O. 8S. 157. Cincinnati v. Railway, 23 C. C. (N. 8S.) 289; reversing Cincinnati v. Railway, 13.N. P. (N. 8.) 276. Joint liability—Where a rail- § 8898 way over which it is sought to carry a highway otherwise than at grade has passed under the control of another company which has acquired its privileges and assumed its liabilities and THE OHIO MUNICIPAL CODE. 988 duties, the one-half of the cost .of obviating such grade crossing which the law imposes on the railway becomes a liability of both companies. Cincinnati v. Railway, 23 ©. C. (N. 8.) 289. Sec. 8898. [Grade crossings.]! When it is desired by a rail- road company constructing a new railroad, or in changing or in altering the location of one heretofore constructed, or by any municipality or authority constructing a new highway that the railroad or highway should be so constructed that the railroad and highway will cross each other at the same grade or if it is desired to divert, change or alter an existing public highway, a petition shall be presented by the party desiring such construction or diversion, to the common pleas court of the county within which the crossing or diversion is situated, and if it is a highway asking for the right to cross a railroad, the railroad company shall be the defendant. If it is a railroad company asking for the right to cross a highway, or divert, change or alter any existing public highway, in a municipality, such municipality shall be the defendant. If outside the municipality, the trustees of the township and the board of county commissioners of the county shall be the defendants. Summons shall be served and the rule days and the rights of the defendants to plead shall be the same as in civil actions in such court. [99 v. 58 §4; Bates, 3337-17m; 97 v. 546. ] (1) Validity.—Held tional. Railway Co. v. AS OAC. CN ere pus nati v. Railway, 23 C. C. (N. 8.) 289; reversing Cincinnati v. Rail- way, 13 WN. #P.) (NN. SiyU206. constitu- Akron, Cincin- Sec. 8899. [Petition, what to contain.] Such petition shall set forth the reasons that are supposed to make such change or alteration necessary or desirable; and the court of common pleas thereupon shall have the jurisdiction of the parties and the subject matter of the petition, and may proceed to exam- ine the matter, either by evidence, by reference to a master commissioner or otherwise. If satisfied that such construction is reasonably required to accommodate the public, or to avoid 989 STEAM RAILROADS IN MUNICIPAL LIMITS. § 8900 excessive expense, in view of the small amount of traffic on the highway or railroad, and considering the future uses to which the highway may be adapted, or in view of the difficulties of other methods of construction, or for other good and suffi- cient reasons, the court shall make an order or orders per- mitting such crossing at a grade or diversion to be estab- lished. In such order, or orders, in its discretion the court may prescribe that gates, signals, watchmen, or other safe- guards shall be maintained by the railroad company, in addi- tion to the signals and safeguards prescribed by statute, and all such orders shall be binding upon the parties and be observed by them. [99 v. 58 §4; Bates, 3337-17m; 97 v. 546.] Sec. 8900. [Costs and expenses.] All costs and expenses of the proceedings shall be ascertained and allowed by the court of common pleas and be paid by such party as it decides; or by it apportioned between the parties, and may be collected by execution out of such court. [99 v. 58 § 4; Bates, 3337-17m ; 97 v. 546.] Sec. 8901. [Appeals.] Appeals may be taken and error prosecuted from the decision of the common pleas court to the court of appeals in such proceedings, as in civil actions. The decision of that court shall be final and conclusive. In both the common pleas court and court of appeals proceedings brought hereunder shall be advanced over other civil causes. [103 v. 405, 425; 99 v. 58, § 4; Bates, 3337-17m; 97 v. 546.) Sec. 8902. [Additional tracks and switches.] Nothing in sections eighty-eight hundred and ninety-five to eighty-nine hundred and one both inclusive, shall prevent a railroad com- pany from laying additional tracks at previously existing crossings, or from constructing switches, sidings and branch lines from their lines of road to a mill, factory, or other manufacturing establishment, or other industrial plant, or an elevator, wharf or pier, or gravel, marl, or clay bed, or any mine, or from laying additional track to increase their yard facilities at terminal or other points across public highways at the grade thereof.1 Such signposts and signals shall be employed for the protection of such crossings as are by law § 8903 THE OHIO MUNICIPAL CODE. 990 prescribed for railroad crossings of public highways. [97 v. 547 § 6; Bates, 3337-170; 97 v. 547.] (1) Spur-tracks.—Where the proposed crossing is by a spur-track leading to manufacturing establish- ments, commercial houses and cer- tain docks, it falls within the ex- ception as to tracks for increasing “yard facilities at terminal or other right under the statute to cross at grade. Toledo v. Toledo ete. R. R. Co 9° CC. CNL Sy S99 “gee also Cincinnati v. Railway, 15 N. P. (N. 8.), 219. , Adff’d by the Sup. Ct. without opinion. 89 OS. 416; points,” and the company has the Sec. 8903. [Height of over railroads.] Except cases in which the state railroad commission finds that such construction is impracticable, bridges, viaducts, overhead roadways, foot- bridges, wire or other structure hereafter built over the track or tracks of a railroad or railroads, by a county, municipality, township, railroad company, other corporation or person, shall be not less than twenty-one feet in the clear from the top of the rails of such track or tracks, to such wire or other struc- ture or to the bottom of the lowest sill, girder or crossbeam, and the lowest downward projection on the bridge, viaduct, overhead roadway or foot-bridge. [94 v. 297 §1; Bates, 3337- 18; 91 v. 365.] Sec. 8904. [Exceptions.] The exception in the next preced- ing section shall not apply to the structures therein named when built over the main tracks of railroads; and in cases wherein it is allowed, the railroad commission shall file in its office a written statement of the facts upon which it relied in finding the required construction impracticable. [94 v. 297 §1; 91 v. 365; Bates, 3337-18.] Sec. 8905. [Costs.] In case of the rebuilding of bridges or the other structures above provided for, if the structure is at or in line with a public street or highway, and a cross- street or streets, the cost of making such streets or highways conform to a new grade, with all damages to owners of prop- erty abutting thereon because of such change, shall be deter- mined and paid, as follows: The railroad company or its assigns shall pay all costs or damages resulting from the a NE ————— 991 STEAM RAILROADS IN MUNICIPAL LIMITS. § 8906 raising or building of its bridges or structures in the line of a street or highway at a greater height than heretofore was required. If such company is only part owner of such struc- ture it shall pay its proportionate share of the cost of such change in grade and damages. Should a railroad company, or its assigns, hereafter raise the grade of its track or tracks under any of such structures not owned by it, thereby causing a bridge or structure to be put at a higher grade when rebuilt, the company shall pay all costs and damages thereby made necessary. [94 v. 297 § 1; 91 v. 365; Bates, 3337-18. | Sec. 8906. [Plans and specifications to be filed with rail- road commission.] Every railroad company, public or pri- vate corporation, or person building or permitting to be built, any such bridge, viaduct, overhead roadway, foot bridge, wire and other structure, before proceeding therewith, shall file with the state railroad commission, plans and specifications therefor, and have its permit for the erection of such struc- ture or wire. [91 v. 366 §2; Bates, 3337-19. ] Sec. 8907. [How enforced.] Observance of the provisions of the four next preceding sections may be enforced by an injunction on complaint of any person, corporation or board interested therein. [91 v. 366 § 2; Bates, 3337-19. ] UNION DEPOT COMPANIES. Sec. 9163. [Use of streets, alleys, roads, etc.] The compa- niest whose boards of directors authorize the filing of the ar- ticles of incorporation, or assent thereto, shall each be held to own and be liable to pay an equal proportion of the capital stock, or when such union depot and terminal companies are organized by any number of persons, not less than five, the stock thereof may be acquired and held by such railroad companies as agree to use said union depot and terminals, in such proportions as said railroad companies may agree upon, and the provisions of the law authorizing railroad companies to enter upon and appropriate lands for depots, work shops, side tracks and materials therefor, shall be applicable to such union depot company, whether organized by the presidents of § 9163 THE OHIO MUNICIPAL CODE. 992 two.or more railroad companies or by not less than five indi- viduals, as provided in this chapter; and any municipality in which such company is located, owning or having charge of any public road, street, alley, way or ground of any kind, except a public landing, may grant to such union depot and terminal company the right to construct, maintain and operate by elevated, surface and underground tracks, so far as may be necessary to carry out the purpose of said union depot and terminal company, along, over and under said public roads, streets, alleys, ways or grounds, subject to existing laws con- cerning crossings so far as the same may be applicable, and to erect and maintain therein the necessary tracks, piers, stays, supports and stations and the approaches for the same, and also to construct suitable terminals and way stations; provided that before making such grant said union depot and terminal company shall file with the city or village, maps showing the location and character of the construction, and said grant shall provide for such manner of construction so that the ordinary use of and traffic upon said roads, streets, alleys, ways or grounds, whether by pedestrians, vehicles, street cars or otherwise, except temporarily when necessary in the construction of such structure, shall not be interfered with; and said grant shall further provide that any tunnel construction shall not impair the stability of said roads, streets, alleys, ways or grounds, or prevent the use of any sewers, water pipes, gas pipes, and conduits used for such pur- poses, or for telephone or telegraph purposes in said streets, alleys, ways or grounds, except temporarily when necessary in the construction of said tunnels. Said grant can only be made upon such terms and econdi- tions as are agreed upon by the council of the city and the company ; and said grants shall provide for its acceptance by such union depot and terminal company within the time to be fixed by the council of the municipality. [109 v. 78; 101 v. 71; R.S. See. 3448. ] (1) Companies referred to are Union Depot Companies provided for in § 9160 G. C. Revocation of franchise.—Where such franchise is granted and a deposit made with the city pursuant to its terms which is to be forfeited if the franchise is forfeited, and there- after the city undertakes to forfeit a franchise for non-compliance with its terms and orders the return of the deposit to the company, it was 993 held that under these facts the return of the deposit was not a gift by the city and its repayment was within the power of the city council. Depot Co. v. Cincinnati, 105 O. 8. 311. Control of depot property.— Depot company may grant exclusive privilege to transfer company for CINCINNATI SOUTHERN RAILROAD. § 9163 to permit his vehicle to stand in front of a certain railroad passenger station ‘“‘unless the permission to stand has been granted by the person having the supervision over such passenger station’? was held invalid. Cincinnati v. Cook, 107 O. S. -223. Terminal railroad companies hack stand. State ew rel. v. Depot Go. 1 O:.8.. 379. But an ordinance making it un- lawful for the driver of any vehicle authorized under general railroad laws. See State ex rel. v. Union Terminal R. R. Co., 72 O. S. 455. RAILROADS OWNED BY MUNICIPALITIES. THE CINCINNATI SOUTHERN RAILROAD. 1. Act authorizing construction and bond issue of $10,000,000; trus- tees; appropriation of land, etc. 66 O. L. 80. Held constitutional. Walker v. Cincinnati, 1 C. S. C. R., 121; affirmed, 21 0. S. 14. But see Ry. Co. v. Martin, 53 O. S. 386; Taylor v. Com- missioners of Ross County, 23 0. S. 22; Wyscaver v. Atkinson, 37 0. S. 80; Counterman v. Dublin Tp., 38 O. S. 515. 2. Act authorizing city to advance funds to trustees. 67 O. L. 28. This act was also involved in Walker v. Cincinnati, 21 O. 8. 14. 3. Act relating to rights of bondholders and authorizing trustees to complete and lease the road. 70 O. L. 1389. 4. Act authorizing trustees to borrow six million ($6,000,000) dollars more and to issue bonds therefor upon a vote of the people. 73 O. L. 13. Upheld in Thoms v. Greenwood, 7 Am. L. Rec. 320%; affirmed by the Supreme Court 3 B. 157. 5. Act authorizing trustees to contract for completing and leasing the road. 74 O. L. 115. 6. Act authorizing trustees to borrow two million ($2,000,000) dollars more upon a vote of the people, and providing for terminal facilities right to use streets and lease of finished parts of road. 75 O. L. 115. The vote on this question was against the bond issue, and thereupon the succeeding act of May 15, 1878 was passed. 7. Act authorizing trustees to borrow $2,000,000 more, upon a vote of the people, and to contract to complete the road. 75 O. L. 559. In a suit to enjoin the performance of the contract made in pursuance of the above act and to enjoin the issuance of the bonds therein author- ized, the constitutionality of the original Southern Railway act of May 4, 1869, and all subsequent acts supplementary thereto, was questioned. The constitutionality of all this legislation was sustained in Thoms v. Greenwood, 7 Am. L. Rec. 32014 (affirmed by Supreme Court 10: B. 1057), See reference to this affirmation in dissenting opinion of Judge Okey in State v. Pugh, 43 0. S., at page 139. §$ 9163 THE OHIO MUNICIPAL CODE. 994. 8. Act authorizing trustees to borrow $300,000 more, and to acquire land for terminal facilities without submission to a popular vote. 77 O. L. 153. 9. Act requiring the Southern Railway trustees to give new bonds and providing for the renewal of bonds. 77 O. L. 175. 10. Act authorizing trustees to lease or sell the Southern Railroad. 78 O. L. 58. Repealed April 23, 1898 (93 O. L. 637). Under this act a lease was made of the railway for twenty-five years to the Cincinnati, New Orleans & Texas Pacific Railway Company, October 11, 1881. Held that the powers of the trustees did not cease with the making of a lease. Cincinnati v. Bishop et al., 6 C. C. 247 (affirmed 52 O. S. 6387). 11. Act providing for compensation of trustees. 80 O. L. 168. 12. Act giving power to fill and improve lands for terminal facilities. 82 O. L. 143. 13. Act amending section 3 of the act of February 24, 1876 (73 O. L. 13), as to actions against the trustees, 83) O. L. 38. 14, Act authorizing the city of Cincinnati to adjust claims growing out of construction of Southern Railway. 83 O. L. 152. 15. Act authorizing sale of The Southern Railway upon resolution of council and vote of the people. 84 O. L. 82. In a suit brought to enjoin the proposed sale, the petition was dismissed on demurrer, and the judgment affirmed by the Supreme Court. Cincin- nati v. Dexter, 55 O. S. 93. The vote on the question was against said proposed sale. This act was repealed April 23, 1898 (93 O. L. 637). 16. Act authorizing the railway trustees to extend lease of Southern Road and authorizing Sinking Fund Trustees to extend outstanding bonds, 86 O. L. 67. No action was taken under this law, and it was repealed April 25, 1898 (93-0. Tx” 672) 17. Act authorizing modification and extension of Southern Railway lease conditioned on a vote of the people; also authorizing trustees to borrow $2,500,000 for terminal facilities. 93 O. L. 637. Held constitutional and the action of the boards thereunder found to be in all respects regular and legal. Cincinnati v. Ferguson et al., 12 Dee. 439; affirmed by Supreme Court 47 B. 220, 66 O. S. 658. Held that bonds for terminal facilities and permanent betterments pro- vided for in section 2 of this act could be issued only after execution of the supplemental agreement provided for in section 3 and a favorable vote of the people required in section 4. Cincinnati v. Ferguson et al., 8 N. P. 361; affirmed by Supreme Court without report, 45 B. 443. Held action of board in relocating terminals and modifying plan as to amount of property, regular and valid. Cincinnati v. Trustees, 1 N. P. (N.S.) 361; 14 Dee. 466 (aff’a Supreme Ct., 49 B. 220). 18. Act providing that net earnings of the road shall be paid into the 995 CINCINNATI SOUTHERN RAILROAD. § 9163 city treasury, and in case of sale, purchase money shall be paid into city treasury to the credit of the Sinking Fund and applied to the reduction of the bonded debt, ete. 93 O. L. 647. 19. Act authorizing Southern Railway trustee to extend outstanding bonds, 93 O. L. 672. In Cincinnati v. Guckenberger, 60 O. S. 353, it was held that the Sink- ing Fund Trustees had not power without advertising and public bidding, to make a contract with Roberts & Company providing for the sale of city bonds to raise money with which to refund the bonded Southern Railway debt; and whether the above act of April 25, 1898, gave the power to extend the time of payment of Southern Railway bonds solely to the Southern Railway trustees or the Sinking Fund Trustees to be exercised by either, was not decided. For other decisions affecting Cincinnati Southern Railroad, see Felton v. City, 95 Fed. 336; Roberts and Co. v. Taft, 109 Fed. 825; Thomas v. C., N. O. & T. P. Ry. Co., U. S. Cir. Ct., S. D. Ohio, W. D., No. 4598. 20. Act relating to compensation of trustees. 80 O. L. 168. 21. Act authorizing expenditure for improving lands for terminal facil- ities. 82 O. L. 143. 22. Act authorizing Cincinnati to adjust claims growing out of con- struction of railway. 83 O. L. 152. 23. Act authorizing extension of lease to be voted on. 93 O. L. 637. 24. Act authorizing extension of time of payment of outstanding bonds. 93 O. L. 672. 25. Act providing for disposition of net earnings of railway. 93 O. L. 647. 26. Act authorizing bonds for terminal facilities. 102 O. L. 111. OTHER Acts AUTHORIZING MUNICIPALITIES TO ConsTRUCT RAILWAYS. For other acts authorizing railroads to be constructed by municipali- ties, see, as to Toledo, 66:0. L. 83; 75 O. L. 1138; Zanesville, 66 O. L. 11; Mt. Gilead, 75 O. L. 110; 77 O. L. 91; 78 O. L. 45; 93 O. L. 679; Hills- boro, 76 O. L. 65; 79 O. L. 82; Georgetown, 76 O. L. 138; 88 O. L. 141; Ripley, 76 O. L. 149; St. Clairsville, 76 O. L. 180; Norwalk, 89 O. L. 323; Pomeroy, 87 O. L. 110; 89 O. L. 303; 90 O. L. 356; 94 O. L. 648; Salem, 88 O. L. 593 (held unconstitutional in Ry. Co. v. Martin, 53 O. S. 386). EV: TAXATION. ASSESSORS. Assessors of Personal Property. Sec. 3349. [Election of assessors; assessment districts. ] At the regular election to be held in November, 1915, and biennially thereafter, assessors shall be elected in the man- ner provided by law for the election of ward, district, city, village and township officers as follows: In municipal cor- porations divided into wards, one assessor shall be elected in each ward; in villages one assessor shall be elected; in cities not divided into wards, the board of deputy state su- pervisors of elections or the board of deputy state super- visors and inspectors of elections, as the case may be, shall, acting in conjunction with the county auditor, within ten days after this act shall become effective, divide such cities or such part or parts thereof as may be located in their county, into such number of assessment districts as in the judgment of the county auditor may be necessary in order to provide for the assessment of all the property therein; a division so fixed shall remain in effect for a period of four years, at the expiration of which and quadrennially there- after a like division shall be made in the same manner and by the same authority. One assessor shall, at the time specified in this section, be elected in each assessment dis- trict so created; provided, however, that nothing therein shall be so construed as to require a division of any munici- pal corporation or part thereof into assessment districts when, in the judgment of the county auditor, such division is not necessary, in which event one assessor shall be elected in the entire municipal corporation or in that part thereof which may be located in one county as the case may be; in townships not having a municipal corporation therein, one 996 997 TAXATION, § 3350 assessor shall be elected in such township; in townships composed in part of a municipal corporation, one assessor shall be elected in the territory outside such municipal cor- poration. An assessor shall be a citizen possessing the quali- fications of an elector! of such ward, district, city, village® or township. Such assessor shall take and hold his office for the term of two years from and after the first day of January following his election. Upon the election and qualli- fication of such assessor, the right of the deputy assessor, theretofore appointed under any provision of law to ex ercise any powers or perform any duties as such deputy assessor shall cease and determine, and he shall turn over to the person so elected and qualified all the books, records, papers and furniture of said office. Such elected assessor shall be the successor of said appointed officer, with ful’ power to take up, carry on and complete any and all of the unfinished business thereof, and he shall perform all the duties, exercise all the powers and be subject to all the lip- bilities and penalties devolved, conferred or imposed by law upon the deputy assessor so appointed. [106 v. 246, 250.] (1) An elector of a municipal township as herein contemplated. corporation located within a town- Op. Atty. Gen. (1915), p. 2203. ship is not an elector of said Sec. 3350. [Appointment of assistant assessors; qualifica- tions, oath, duties.] An assessor who is unable within the time prescribed to complete his work, may appoint such per- son or persons as the county auditor may in writing authorize and approve, as assistant assessors for his ward, district, city, village or township. An assistant assessor shall pos- sess all the qualifications of an elected assessor, and after giving bond, and taking the oath prescribed by law, shall perform such services under the direction of the assessor, as he may require, in delivering notices, forms and blanks for the listing of property, and in procuring facts and in- formation relative to the amount, character and descrip- tion of all property which the assessor is required by law to list, as will aid such assessor in ascertaining the true value thereof in listing such property for taxation. He shall § 3351 THE OHIO MUNICIPAL CODE. 998 also, under the direction of such assessor, administer to the proper persons listing property for taxation, the oath re- quired by law, and shall deliver such tax lists, together with such information and description of property, to said as- *sessor. The assessor shall examine the lists made and deliv- ered to the assistant assessor by each person listing property to him, and if the assessor from such examination together with the facts relating thereto, obtained by such assistant, believes the return incorrect either in value or articles listed or omitted, he shall correct the same, and if he deems it necessary, may view the property, examine the owner un- der further oath, and determine its true value in money. [107 v. 29, 36; 106 v. 246.] Sec. 3351. [Bond of assessors; form prescribed by tax commission; execution, approval, liability.] Each assessor and assistant assessor shall give bond, payable to the state, for the faithful performance of his duties. The form of such bonds shall be prescribed by the attorney-general and fur- nished by the tax commission of Ohio, and their execution shall be approved by the prosecuting attorney of the proper eounty. Each bond when executed shall be submitted, with the oath of office endorsed thereon, to the auditor of the county wherein the principal resides. If the auditor approves the surety thereon, he shall endorse his approval on the bond and file it in his office and there safely keep it. The sureties on such bonds may be released from liability thereon in the manner and subject to the limitations provided by sections twelve thousand one hundred and ninety-five to twelve thousand one hundred and ninety-seven, inclusive of the General Code. Each such bond, and the principal thereon, personally, shall be liable, in addition to any other liability growing out of the exercise of the powers and duties of his office by the principal, for any damage to any person caused by neglect, default, fraud, or unlawful act of the principal, of which he may be guilty while acting within the scope of his official duties or under color of his official authority. The bond of an assessor shall be in the sum of one thousand dollars, and that of an assistant assessor in the sum of five hundred dollars. [107 v. 29, 36; 106 v. 246.] 999 TAXATION. § 3352 Sec. 3352, [Oath of assessor and members of board of re- vision.] Each assessor, before entering upon the discharge of the duties of his office, shall take and subscribe an oath, faithfully and impartially to assess the personal property in his district, and otherwise faithfully to perform the duties imposed upon him and impartially to exercise the powers vested in him by law. lHach assistant assessor shall, before entering upon the discharge of the duties of his office, takr and subscribe an oath, faithfully and impartially to perform the duties imposed upon him by law. Each member of a county board of revision shall, before entering upon the dis- charge of the duties of his office, take and subscribe an oath faithfully and impartially to discharge the duties of his of- fice. [107 v. 29, 36; 106 v. 246.] Sec. 3353. [Removal of assessors or assistants; causes. ] The county auditor may summarily remove any appointed assessor or assistant assessor when, in his judgment, the pub- le interest so requires. He may also remove any elected as- sessor for want of moral character, inefficiency, incompetency, neglect or breach of duty or malfeasance in office, giving to him a copy of the charges against him, and an opportunity to be publicly heard thereon upon not less than ten days’ notice. The decision of the county auditor therein shall be final. The county auditor may suspend without pay such as sessor during the pendency of such proceedings for his re- moval. [106 v. 246, 252.] Sec. 3353-1. [Vacancies, how filled.] If there shall be a failure to elect an assessor in any ward, district, city, village or township, or if a person elected assessor fails to give bond and take the oath of office within thirty days after his elec- tion, or if after his appointment or election an assessor shali remove from the ward, district, city, village or township for which he was appointed or elected, the office shall be deemed vacant. Should there be at any time a vacancy in such of- fice for any of the causes aforesaid, or from any other cause, the county auditor shall fill such vacaney by appointing any competent and suitable elector of such ward, district, city, § 3354 THE OHIO MUNICIPAL CODE. 1000 village or township, who will accept and perform the duties of such office. [106 v. 246, 252.] Sec. 3354. [Listing and valuation under direction of coun- ty auditor.] Assessors, within their respective districts, shall, under the direction of the county auditor, list and value for taxation the property subject to taxation therein, except as otherwise provided by law. [107 v. 29, 36; 106 v. 246. | Sec. 3355. [Shall administer an oath.] The assessor shall actually administer an oath, as required by law, to each per- son upon whom he calls to list property for taxation, and per- sonally urges and insists upon a strict compliance with law in the making of such list. Should the assessor neglect to administer such oath, or knowingly omit the performance of any other duty, for every such offense he shall be fined not less than ten nor more than two hundred dollars, and stand committed until the fine and costs are paid. He shall not be liable for failure to administer it if the person declines to take such oath, or is unable from sickness or absence. [R. S. See. 1521; 86 v. 162; 77 v. 185; 58 v. 42.] Sec. 3356. [Statistics to be gathered and returned by assessors.] Annually, at the time of taking the lists of per- sonal property for taxation, the assessor shall require and take for each person, company and corporation in his township or precinct verified by oath, the statements for the preceding year following: Agriculture. The number of sheep killed by dogs, their value, and the number of sheep injured by dogs, and the esti- mate of the amount of damages by such injury; the number of acres put in wheat, rye, barley, corn, oats, and buckwheat, and the number of bushels of each produced; the number of acres in timothy and other grass, except clover, and the num- ber of tons of grass and bushels of seed produced therefrom ; the number of acres in clover, the number of tons of hay made therefrom, the number of bushels of seed obtained there from, and the number of acres of clover plowed under for manure; the number of acres planted in tobacco, and the num- | | 1001 TAXATION. § 3356 ber of pounds obtained therefrom; the number of acres put in flax, the number of pounds of fiber gathered, and the number of bushels of seed obtained; the number of acres planted in sorgo, the number of gallons of syrup, and pounds of sugar manufactured; the number of pounds of maple sugar, and the number of gallons of maple syrup manufactured; the number of pounds, each, of butter and cheese manufactured ; ‘the number of acres planted in potatoes, and the number of bushels produced; the number of acres planted in sweet pota- toes, and the number of bushels produced; the number of acres in vineyard, the number of acres planted within the year, the number of pounds of grapes gathered, and the num- ber of gallons of wine produced; the number of pounds of wool shorn; the number of acres in orchard, and the number of bushels of apples, peaches, cherries, plums, and pears pro- duced; the number of acres used for pasturage, and the num- ber of acres not cultivated or pastured; the number of hives of bees, and the number of pounds of honey produced; the num- ber of dozens of eggs shipped to places beyond the state; the number of acres sowed, planted or to be sowed in wheat, rye, barley, oats, corn, and potatoes, for the harvest of the then present year. Manufactured. The number of tons each of cold-blast pig- iron manufactured from native ore smelted with charcoal, of hot-blast pig metal manufactured from the same material, and of pig metal made from native or foreign ore, smelted with stone coal; the number of tons each manufactured of bar and nail-rod iron, nails, hoop-iron, sheet-iron, stoves and hollow- ware, all other castings, spikes and railroad chairs, car wheels, and of railroad iron; the number each of locomotives built, steam engines constructed, plantation sugar-mills made, port- able saw-mills made, and the number in use; the number, each, of reaping and mowing-machines, and of threshing- machines. Water Crafts. The number of steamboats built upon the Ohio river and its navigable tributaries, and the number of barges, flat-boats, and store-boats, and the value of each; the number of steam-boats and of sail-vessels built upon Lake Erie and its tributaries within the borders of this state, and § 3357 THE OHIO MUNICIPAL CODE. 1002 the value of each; the number of canal-boats built and used in navigating the canals. Mines and Miners. The number of bushels of stone coal mined; the number of persons engaged in mining stone coal, and the average rate of wages paid; the number of tons of iron ore mined; the number of persons engaged in mining iron ores, and the average rate of wages paid; the number of bushels of salt manufactured; the number of gallons of petro- leum produced; the number of barrels of lime made; the num- ber of barrels of water cement; the number of gallons of stone- ware made. Wages. The number of adult male persons engaged in each of the mechanic arts, and the average monthly or daily wages of each; the number of common laborers, and the average daily wages of each; the number of common farm laborers, and the average monthly wages of each; the average monthly wages paid to clerks and salesmen and saleswomen; the aver- age monthly wages paid to book-keepers. Investments. The amount of United States bonds owned; the amount of legal tender notes or moneys exempt from taxa- tion; and the amount of state bonds or certificates. Social. The number of marriages between persons related to each other by blood, and the degree of such relationship ; the number of persons born with imperfect senses or idiotic, and how many of such persons are the offspring of parents related to each other by blood; the number of houses of prosti- tution or assignation, and the number of prostitutes. [R. S. Sec. 1522; 80 v. 68; S. & S. 738; 8. & C. 87.] Sec. 3357. [Return of statistics; agricultural statistics.] At the time he returns the lists of personal property for taxa- tion, the assessor shall make return of all such statistics to the county auditor. On or before the first day of August, each year, the county auditor shall make return to the auditor of state of all statistics returned to his office, except those statistics under the head of ‘‘agriculture,’? which he shall return to the agricultural commission on or before the tenth day of July, each year, and the commission may compile and publish them in the monthly crop and stock bulletins and an- 1 1 : a 1003 TAXATION, § 3358 nual report. [103 v. 304, 338; R. S. See. 1523; 93 v. 14; 68 v. 95.] Sec. 3358. [Penalty for not making out and returning sta- tistics.] An assessor who neglects or refuses to make out and return statistics as herein required, shall forfeit and pay to the state not less than twenty nor more than one hundred dollars, to be recovered by action which shall be brought by the prosecuting attorney, on the request of the auditor of state. The amount recovered, shall be paid into the state treasury to the credit of the school fund. [R. S. See. 1524; 68 v. 95 § 2.] Sec. 3359. [Penalty for refusing to make statements.] Any person, company or corporation, refusing to make out and deliver a statement of the facts, or any of them, herein required, shall forfeit and pay to the state not less than fifty nor more than one hundred dollars, to be recovered and paid as provided in the next preceding section. [R. S. See. 1525; 66 v. 351 § 2.] Sec. 3360. [Quadrennial enumeration of unfortunates.] Quadrennially at the time of taking a list of property for taxation, each assessor shall take an enumeration of all deaf and dumb, blind, epileptic and epileptic insane, insane and idiotic persons, whose usual place of residence is in any family, jail or infirmary in his township or precinct, on the day pre- ceding the second Monday of April, with their names in full, their age, sex, race, residence, whether in charge of parents or guardian, and, where known, the cause and duration of such deficiency. He shall make a list of such deaf and dumb, blind, epileptic and epileptic insane, insane and idiotic per- sons, designating those of each class, and the names of their parents or guardians, and post-office address, and return it to the county auditor, on or before the third Monday of May in the same year. [R. S. Sec. 1526; 91 v. 97; 63 v. 64 §1.] Sec. 3364. [Compensation; when and how paid.] The compensation of assessors and assistant assessors, which shall § 5349 THE OHIO MUNICIPAL CODE. 1004 be paid out of the county treasury, shall be four dollars per day for each day of not less than eight full hours of actual service they are necessarily engaged in the performance of their duties. Each assessor and assistant assessor shall make and file with the county auditor a statement giving in de-- tail the date of each day on which he was necessarily en- gaged in the performance of his duties, the number of hours he worked each such day and verify it by oath, which oath the county auditor may administer. If the county auditor is satisfied that such statement is correct he shall draw his warrant on the county treasurer for the amount thereof. No such warrant shall be drawn until such assessor or assistant assessor has filed with the county auditor all the statements and returns of property listed by him, the lists of the owners of property,’ the statistics and enumerations required of him by law, and the county auditor is satisfied that the same are as full and accurate as could be made. The county auditor shall fix the time within which such officers shall complete their work and they shall not receive compensation for a longer period, unless the county auditor, for good cause shown, shall extend the same. [107 v. 29, 36; 106 v. 246.] (1) Duties of assessors.—As to Assessment of real property.— listing personal property and du- See G. C. §§5548 et seq. (as ties of assessors relative thereto amended, 108 O. L. 557). see G. C., §§ 5320 et seq. EXEMPT PROPERTY.? Sec. 5349. [School houses, churches, colleges, etc.] Public school houses and houses used exclusively for public worship, the books and furniture therein and the ground attached to such buildings necessary for the proper occupancy, use and enjoyment thereof and not leased or otherwise used with a view to profit, public colleges and academies and all buildings connected therewith, and all lands connected with public insti- tutions of learning, not used with a view to profit, shall be exempt from taxation.? This section shall not extend to lease- hold estates or real property held under the authority of a college or university of learning in this state, but leaseholds, or other estates or property, real or personal, the rents, issues, “a _—— TAXATION. 1005 § 5351 profits and income of which is given to a city, village, school district, or subdistrict in this state, exclusively for the use, endowment or support of schools for the free education of youth without charge, shall be exempt from taxation as long as such property, or the rents, issues, profits or income thereof is used and exclusively applied for the support of free education by such city, village, district or subdistrict. [R. S. See. 2732; 99 v. 449; 91 v. 393, 216; 88 v. 95; 61 v. 39; S. & S. 761.] Relief for erro= (1) Exemptions strictly con- strued.—Exemptions from taxation must be strictly construed. Library Ass’n v. Pelton, 36 O. S. 253, 258: Sturges v. Carter, 114 U. S. 521; Lee v. Sturges, 46 O. S. 153. And an exemption does not relieve from a local assessment. Lima -v. Cemetery Ass’n, 42 O. S. 128. property neously taxed may be had under § 2588 et seq. G. C. Butler v. Comm’rs, 39 O. S. 169. (2) Schools and churches.— See Gerke v. Purcell, 25 O. S. 229; State v. Cappelar, 6 B. 339; Com- missioners v. Mannix, 11] B. 184; Kendrick v. Farquhar, 8 O. 189; College v. State, 19 O. 110. Sec. 5351. [Public property.] Real or personal property belonging exclusively to the state or United States, and public property used for a public purpose shall be exempt from tax- ation. [110 v. 77, 78.] Sec. 5353. [Lands, etc., for poor exempt.] Lands, houses and other buildings belonging to a county, township, city or village, used exclusively for the accommodation or support of the poor, or leased to the state or any political subdivision thereof for public purposes, and property belonging to insti- tutions used exclusively for charitable purposes, shall be ex- empt from taxation.: [110 v. 77; 103 v. 548; R. S. Sec. 2732; 99 v. 449; 91 v. 398, 216; 88 v. 95; 61 v. 39; S. & S. 761.] Hayslip, 23 O. 8S. 144; Library stitutions of purely public charac- Ass’n v. Pelton, 36 O. S. 253; Davis ter see Gerke vy. Purcell, 25 O. S. v. Camp Meeting Ass’n, 57 O. S. 229; Humphreys v. Little Sisters 257. of the Poor, 29 O. 8S. 201; Lodge v. (1) Public charities.—For in- Sec, 5353-1. [Property used for support of children’s home exempt.] Property, real, personal, and mixed, the net in- come of which is used solely for the support of institutions § 5356 THE OHIO MUNICIPAL CODE. 1006 used exclusively for children’s homes for poor children, the real estate on which said institutions are located, and the buildings connected therewith, shall be exempt from taxa- tion: [L06:viAL 792) Sec. 5356. [Property exempt from taxation.] Market houses, public squares, or other public grounds of a city, village or township, houses or halls used exclusively for public purposes or erected by taxation for such pur- poses, notwithstanding that parts thereof may be lawfully leased, and property belonging to park districts, created pur- suant to the provisions of section 2976-1 et seq. of the Gen- eral Code, shall be exempt from taxation.’ [108 v. 1285; R.S...See., 2732; 99. v.. 449; 91... vs. $93, 216; 88 v. 95> Gian 39; S. & S. 761.] (1) Public property.—Appara- tus belonging to city used for sup- plying gas to its citizens is used for a public purpose and is exempt. ‘oledo v. Hosler, 54 O. S. 418. For taxation of municipal prop- erty leased for more than fourteen years, see Zumstein v. Coal & Min- ing Co., 54 O. S. 264. Property owned by a municipvl corporation is not exempt from tax- ation unless it is used for municipal purposes, and this is true, although it is leased by the municipality and the money realized is applied to a publie purpose. Cincinnati v. Lewis, 66 O. S. 49; Cincinnati v. Hynicka, 9 NN. PL (N8.)o° S73: “Babee property, owned by municipality, cannot be sold to pay the tax, and an attempted sale will be enjoined. Cincinnati v. Hynicka, 9 N. P. (N.S.) 273; 20 Dec. 365. Property acquired by and be- ing improved by a municipality with view of being turned over to a lessee railroad exempt. Railway v. Roth, 17 C. C. (N. 8.) 562; re- versing 13 N. P. (N. 8.) 633. Sec. 5357. [Water works, etc.] Works, machinery, pipe- lines and fixtures belonging to a city or village and used exclusively for conveying water to it, or for heating or lighting it, shall be exempt from taxation. [R. S. See. 2732; 99 v. 449; 91 v. 393, 216; 88 v. 95; 61 v. 39; 8. & S. 761.] Sec. 5359. [Monuments and funds therefor.] Funds raised and set apart for the purpose of building monuments to the soldiers of this state, and monuments and monumental build- ings, shall be exempt from taxation. [R. S. See. 2732; 99 v. 449; 91 v. 398, 216; 88 v. 95; 61 v. 39; S. & S. 761.] TALZATION, - LH; SRANEPER OF PUBLIC PUNE.’ Bec, 2296. [By whom funds may be transferred] The | county commissioners, township trustees, the board of edu- cation of a school district, or the council or other board hav- ing the legislatve power of 4 municipality, may transfer public funds except the proceeds or balances of special levies, loans or bond issues, under their supervision, from one fund to another, or to 4 new fund created under their respective supervision, in the manner hereinafter provided, ) which shall be in addition to all other procedure now pro- vided by law. [102 v. 521, 522; 95 v. 371, $$1, 2] (1) See $ 2800, ante, in Part L Sec, 2297. [Resolution and petition.] A resolution of such officers or board shall be duly passed by a majority of all the members thereof, declaring the necessity therefor, and such officers or board shall file a petition in the court of common pleas of the county in which the funds are held. The petition . shall set forth the name and amount of the fund, the fund or ) funds to which it is desired to be transferred, a copy of such resolution with a full statement of the proceedings pertaining to its passage, and the reason or necessity for the transfer. (95 v. 371 § 2.) Sec. 2298. [Notice of the petition.] The petitioner shall give notice of the filing, objects and prayer of the petition, and | of the time when it will be for hearing. The notice shall be jgiven by one publication in two newspapers of opposite poli- ties, having a general circulation in the territory to be affected by such transfer of funds, preference being given to news |papers published within the territory. If there are no such newspapers, the notice shall be posted in ten most conspicuous places within the territory for the period of four weeks. [95 v- 371 § 2.) Sec. 2299. [Hearing and objections.] The petition may be heard at the time stated in the notice, or as soon thereafter as convenient for the court, but such cause shall be heard, upon request of the petitioners in preference to all other cases on § 2300 THE OHIO MUNICIPAL CODE. 1008 the docket. Any person or persons, objecting to the prayer of such petition, shall file their objections in such cause on or before the time fixed in the notice for hearing, and they shall be entitled to be heard. [95 v. 371 § 2.] Sec. 2300. [Finding of court.] If, upon the hearing the court finds that the notice has been given as herein required, that the petition states sufficient facts, that there are good - reasons, or that a necessity exists for the transfer, and that no injury will result therefrom, it shall grant the prayer of the petition and order the petitioners to make such transfer. The court may make an order for the reimbursement, in whole or in part, of the fund from which such transfer is made. [103 v. 521, 522; 95 v. 371, §2.] Sec, 2301. [Findings to be entered in records.] A copy of the findings, orders and judgments of the court, shall be certi- fied by the clerk and entered on the records of the petitioning officers or board, and thereupon the petitioners may make the transfer of funds as directed therein. All costs of such pro- ceeding shall be paid by the petitioners, except in case objec- tions are filed, the court may order such objectors to pay all or a portion thereof as is just and equitable. [95 v. 371 § 2.] Sec. 2302. [Appeal and error.] The petitioners or any per- son or persons who filed objections to the petition, may appeal such cause to the circuit court of the county, and the proceed- ings in appeal shall be the same as provided for appeals from the common pleas to the circuit court in other cases, and such cause may be reviewed on error in the supreme court. When the cause is appealed and the circuit court shall have the same power and make the same orders, and all proceedings therein shall be had as herein provided for in the court of common pleas, except the question of costs shall be within the discretion of such court. [95 v. 371 § 2.] Sec. 5654. [Proceeds of special levies shall not be used for other purpose; transfer of surplus.] The proceeds of a special tax, loan or bond issue shall not be used for any other purpose than that for which the same was levied, issued or 1009 TAXATION. § 5649-1 made, except as herein provided. When there is in the treasury of any city, village, county, township or school dis- trict a surplus of the proceeds of a special tax or of the pro- ceeds of a loan or bond issue which cannot be used, or which is not needed for the purpose for which the tax was levied, or the loan made, or the bonds issued, all of such surplus shall be transferred immediately by the officer, board or council having charge of such surplus, to the sinking fund of such city, village, county, township or school district, an‘ thereafter shall be subject to the uses of such sinking fund. [103 v. 521; R. S. See. 2834; 92 v. 77; 75 v. 182, §1.] LIMITATIONS ON TAX LEVY.* Sec. 5649-1. [Tax levy for sinking fund and interest.] In any taxing district, the taxing authority shall, within the limi- tations and in the manner prescribed by law, levy a tax suffi- cient to provide for interest and maturity payment purposes for all serial bonds issued by any political subdivision, and for interest and for sinking fund purposes of all bonds here- tofore issued by such political subdivision,? which tax shall be placed before and in preference to all other items, and for the full amount thereof. [109 v. 336, 346, §19; 104 v. 12; 101 v. 430. |] (1) Smith one per cent. tax law.—The sections under this - heading are commonly referred to as the ‘‘Smith One Per Cent. Tax Uaw.’’ The original of this act will be found in 101 O. L. 430. See §§ 3784-3811 in Part I, and notes to those sections. (2) Sewage disposal bonds.— poration to provide funds to com- ply with orders promulgated by the state board of health, and approved by the governor and attorney general, as provided by Sec. 1249 et seq., G. C., are sub- ject to the provisions of this sec- tion. State ex rel. v. Dean, Audi- tor, 95 O. S. 108. Bonds issued by a municipal cor- Sec. 5649-la. [Former bonds shall be legal.] All bonds heretofore issued by any political subdivision for a lawful purpose which have been sold for not less than par and ac- erued interest and the proceeds thereof paid into the treas- ury, shall be held to be legal, valid and binding obligations of the political subdivision issuing the same. [104 v. 12.] § 5649-1b THE OHIO MUNICIPAL CODE. 1010 Sec. 5649-1b. [Resolution or ordinance shall contain tax levy and be included in annual budget.] The resolution, or- dinance or other measure under which bonds are issued or authorized shall, within the limitations prescribed by law, provide for a levy of taxes, in the manner prescribed by law, sufficient to pay the interest and principal of the bonds as they mature and every such resolution, ordinance or measure shall be certified by the fiseal officer of the political subdivision to the county auditor of the county in which the subdivision is located. Thereafter, the county auditor, with- out further action by the tax-levying authority of the sub- division, shall inelude said annual levies in the appropriate annual budgets submitted by him to the budget commission- ers as provided in section 5649-3¢e of the General Code, in- eluding the county budgets; provided, however, that the county commissioners of any county, board of education of any school district, trustees of any township or council or chief legislative body of any municipality or other political subdivision may appropriate for the purpose of paying any part of the annual interest or principal of such bonds of the political subdivision maturing in any year any surplus in the sinking fund or other bond retirement fund! of the polit- ical subdivision not required for the purpose for which the said sinking or other bond retirement fund was raised or assessments collected and appheable to the payment of such interest or principal or any such assessments due and _ pay- able during such year or proceeds of bonds and notes author- ized by law to be applied to the payment of such interest or principal or collected inheritance taxes or surplus in the fund of any public utility or the estimated revenues of such utility in such year not required for operating expense or unexpended balances in funds created by issues of bonds and no longer needed for the purposes for which such funds were created or premiums and accrued interest from sale of bonds authorized by law to be applied to the payment of such interest or principal or any other fund authorized by law to be applied to such payment, and certify such appro- priation to the county auditor; but nothing herein contained shall be construed to authorize the surplus or revenues of any public utility to be used for or applied to the payment 1011 See : § 5649-1c of the interest or principal of any bonds or indebtedness other than bonds issued or indebtedness incurred for such public utility. In the annual budgets submitted by the county auditor to the budget commissioners, the county au- ditor shall reduce the levy for said annual interest or prin- cipal by the amount of the sums or funds so appropriated, and such sums of funds shall be used for no other purpose than the payment of such interest or principal, until and unless said interest and principal be otherwise fully paid or liquidated ; provided that no such appropriation shall be made from the sinking fund without the approval of the sinking fund trustees or commissioners. The sums thus included in any budget submitted to the budget commissioners shall not be reduced by said commissioners and shall be given by said auditor and commissioners and other taxing authorities .all the precedence and priorities provided by law for interest and sinking fund and principal levies. The annual budget submitted to the county auditor, as required by law, by any county, school district, municipal corporation or other polit- ical subdivision shall, for the assistance of the county au- ditor, contain itemized and detailed statements of the amounts required for such annual interest and _ principal and of said sums or funds appropriated for their payment. [110 v. 456, 462; 109 v. 344.] (1) Disposition of surplus in the ticular bond retirement fund. See sinking fund and surplus in a par- Op. Atty. Gen. (1922) p. 1130. Sec. 5649-1c. [Certification by fiscal officers of tax neces- sary to pay judgments.] On or before the first Monday in May of each year, the fiscal officer of the municipal corpora- tion or other political subdivision shall certify to the council, county commissioners, board of education or other tax levy- ing authority of his political subdivision the amount of tax necessary to provide for the payment of final judgments’ against the political subdivision, except in condemnation of property cases, and said tax levying authority shall place such amount in the annual tax levying ordinance, resolution or other measure for the full amount certified. [109 v. 336, 345, § 16. | § 5649-2 THE OHIO MUNICIPAL CODE. 1012 (1) Anticipation of amounts ments. See Op. Atty. Gen. (1922) needed for payment of future judg- _ p. 593. Sec. 5649-2. [Tax levy limitation.] Except as otherwise provided in section 5649-4 and section 5649-5 of the General Code, the aggregate amount of taxes that may be levied on the taxable property in any county, township, city, village, school district or other taxing district, shall not in any one year exceed ten mills on each dollar of the tax valuation of the taxable property of such county, township, city, village, school district or other taxing district for that year, and such levies in addition thereto for sinking fund and interest pur- poses as may be necessary to provide for any indebtedness heretofore incurred or any indebtedness that may hereafter be incurred by a vote of the people. [103 v. 552; 102 v. 268; 101 v. 4380.] (1) The only “change made in the original §5649-2 by the amendment of Apr. 16, 1913 (103 O. L. 552), is the elimination of the part of the original section that is not included in the amend- ment. The words ‘‘heretofore’’ and ‘‘hereafter’’, found in both, refer to the date of the passage of the original act, June 2, 1911. State v. Spiegel, 91 O. S. 13. See note 1 to §5649-5b, post. Vote required.—The vote required to authorize such additional levy requires the approval of two-thirds of the ‘voters, voting upon the question of issuing bonds as provided by §§ 3942-3947. A majority vote authorized by ordinance is not comprehended within the meaning of this section. State ex rel. v. Bish, 104 O. 8. 206. , Sewage disposal bonds.—In pro- Sec. 5649-3a, viding funds for sinking fund and interest to discharge obliga- tions arising from bonds issued after June 1, 1915, in compliance with orders of the state board of health issued and approved prior to June 1, 1915, the taxing au- thorities of municipal corpora- tions shall disregard the limita- tions on tax levies provided by § 5649-2, General Code. Taxing authorities shall likewise disregard § 5649-3a, General Code, in so far as it limits to five mills the ag- gregate of all taxes that may be levied by a municipal corporation on the taxable property in a mu- nicipal corporation, for the pur- pose of providing funds for sink- ing fund and interest on account of bonds so issued. State ex rel. v. Dean, Auditor, 95 O. 8. 108. [When tax levies to be made; budget; county; municipal corporation; township; school; blanks.]! On or be- fore the first Monday in June, each year, the county commis- 1013 TAXATION, § 5649-3a sioners of each county, the council of each municipal corpora- tion, the trustees of each township, each board of education and all other boards or officers authorized by law to levy taxes, within the county, except taxes levied by the state or for state purposes, shall submit or cause to be submitted to the county auditor an annual budget, setting forth in itemized form an estimate stating the amount of money needed for their wants for the incoming year, and for each month there- of. Such annual budgets shall specifically set forth: (1) The amount to be raised for each and every purpose allowed by law for which it is desired to raise money for the incoming year. (2) The balance standing to the credit or debit of the sev- eral funds at the end of the last fiscal year. (3) The monthly expenditures from each fund in the twelve months and the monthly expenditures from all funds in the twelve months of the last fiscal year. (4) The annual expenditures from each fund for each year of the last five fiscal years. (5) The monthly average of such expenditures from each of the several funds for the last fiscal year, and also the total monthly average of all of them for the last five fiscal years. (6) The amount of money received from any other source and available for any purpose in each of the last five fiscal years, together with an estimate of the probable amount that may be received during the incoming year, from such source or sources. (7) The amount of the bonded indebtedness, setting out each issue and the purpose for which issued, the date of issue and the date of maturity, the original amount issued and the amount outstanding, the rate of interest, the sum necessary for interest and sinking fund purposes, and the amount required for all interest and sinking fund purposes for the incoming year. (8) The amount of all other indebtedness incurred, with a statement of the sections under which such indebtedness was incurred, and the amount of such additional taxes as may have been authorized as provided in section 5649-5 or 5649-4 or any other section of the General Code under which taxes have been levied outside of usual tax limitations or by a § 5649-3a THE OHIO MUNICIPAU CODE. 1014 vote of the people, setting out in detail each item of indebt- ness as provided in the next preceding paragraph and giving the details as to dates of such levies, their rates and the pe- riods for which they run. (9) Such other facts and information as the tax commission of Ohio or the budget commissioners may require. The aggregate of all taxes that may be levied by a county, for county purposes, on the taxable property in the county on the tax list, shall not exceed in any one year three mills. The aggregate of all taxes that may be levied by a municipal corporation on the taxable property in the corporation, for corporation purposes, on the tax list, shall not exceed in any one year five mills. The aggregate of all taxes that may be levied by a township, for township purposes, on the taxable property in the township on the tax list, shall not exceed in any one year one and five-tenths mills. The local tax levy for all school purposes shall not exceed in any one year three mills on the dollar of valuation of taxable property in any school district. Such limits for county, township, municipal and school levies shall be exclusive of any special levy pro- vided for by a vote of the electors, any levy excepted from the limitation provided for in section 5649-2 of the General Code or authorized by said section or by any other provision of law to be made in addition to the limitation provided for in said section; nor shall such limits include special assess- ments, levies for road taxes that may be worked out by the taxpayers, and levies and assessments in special districts ere- ated for road or ditch improvements, over which the budget commissioners shall have no control. Such budget shall be made up annually at the time or times now fixed by law when such boards or officers are required to determine the amount in money to be raised or the rate of taxes to be levied in their respective taxing districts. The county auditor shall provide and furnish such boards and officers blank forms and instructions for making up such budgets: [109 v. 146; 108 v. 1308; 102 v. 270.] (1) Effect on existing contracts. ment, see State ex rel. v. Sayre, —Effect of Smith one per cent. 12 N. P. (N. 8S.) 120. See Op. law on contracts entered into by Atty. Gen. (1918), p. 1101. municipality prior to its enact- The boundaries of a municipal 1015 TAXATION. ; § 5649-3b corporation for tax levying pur- the first Monday of June. See Op. poses are to be determined as of Atty. Gen. (1920), p. 1008. Sec. 5649-3b. [County budget commission; members of; powers and duties.] There is hereby created in each county a board for the annual adjustment of the rates of taxation and fixing the amount of taxes to be levied therein, to be known as the budget commissioners. The county auditor, the county treasurer and the prosecuting attorney shall con- stitute such board.t The budget commissioners shall meet at the auditor’s office in each county on the first Monday in August annually, and shall complete their work on or before the third Monday in that month, unless for good cause the tax commission of Ohio shall extend the time for completing the work. Hach member shall be sworn faithfully and im- partially to perform the duties imposed upon him by law. Two members shall constitute a quorum. The auditor shall be the secretary of the board and shall keep a full and accurate record of all proceedings. The auditor shall ap- point such messengers and clerks as the board deems neces- sary, who shall receive not to exceed three dollars per day for their services for the time actually employed, which shall be paid out of the county treasury. The budget commis- sioners shall be allowed their actual and necessary expenses. such expenses shall be itemized and sworn to by the per- son who incurred them and paid out of the county treasury when approved by the board. For the purpose of adjusting the rates of taxation and fixing the amount of taxes to be levied each year the county auditor and the budget com- missioners shall be governed by the amount of the taxable property as shown on the auditor’s tax list for the current year; provided, that if the auditor’s tax list has not been completed, the county auditor shall estimate as nearly as practicable the amount of the taxable property for such year and such officers shall be governed by such estimate.’ [106 v. 180; 104 v. 237; 103 v. 552; 102 v. 271.] - (1) Validity. — §§5649-3b and _ gaticn of legislative power. State 5649-3e, General Code, creating ex rel. v. Cooper, 97 O. S. 86. the budget commission and de- (This section, in designating the fining its duties, are not a dele- members of the Budget Commis- § 5649-3¢ sion from county officers, avoids the objections to the previous forms of this law which led to their being declared unconstitu- tional in State v. Groom, 91 O. S. 1, in which case it was held that the duties being for the county, the designation of officers not elected by the county was in- THE OHIO MUNICIPAL CODE. 1016 (2) This act is not a law pro- viding for Tax Levies within the meaning of those terms as used in Sec. 1d of Art. II of the Con- stitution and did not go into ef- fect until ninety days after it was filed with the Secretary of State. The State ex rel. v. Milroy, 88 OQ. 8. 301. valid.) Sec, 5649-3c, [Examination of budgets; adjustment and certification.] The auditor shall lay before the budget com- missioners the annual budgets submitted to him by the boards and officers named in section 5649-3a of this act, together with an estimate to be prepared by the auditor of the amount of money to be raised for state purposes in each taxing district in the county, and such other information as the budget commis- sioners may request, or the tax commission of Ohio may pre- seribe. The budget commissioners shall examine such budgets and estimates prepared by the county auditor, and ascertain the total amount proposed to be raised in each taxing district for state, county, township, city, village, school district, or other taxing district purposes. If the budget commissioners find that the total amount of taxes to be raised therein does not exceed the amount authorized to be raised in any township, city, village, school district, or other taxing district in the county, the fact shall be certified to the county auditor. If such total is found to exceed such authorized amount in any township, city, village, school district, or other taxing district in the county, the budget commissioners shall adjust the va- rious amounts to be raised so that the total amount thereof shall not exceed in any taxing district the sum authorized to be levied therein. In making such adjustment the budget com- missioners may revise and change the annual estimates con- tained in such budgets, and may reduce any or all the items in any such budget, but shall not increase the total of any such budget, or any item therein. The budget commissioners shall reduce the estimates contained in any or all such budgets by such amount or amounts as will bring the total for each town- ship, city, village, school district, or other taxing district, a : 1017 TAXATION. § 5649-3d within the limits provided by law, but if the aggregate of the items of any school district budget for’ purposes for which taxes subject to the limitations imposed by section 5649-3a of the General Code are to be levied would require a total levy, subject to such limitation, of two mills in such districts in which all the limitations imposed by such section are operative, or of two and two-tenths mills in such dis- tricts in any part of which the township limitation therein imposed is not operative, the budget commissioners shall not reduce such items of such school district budget below an amount which would be produced by a levy in the whole district at the greater of the two rates mentioned in this sec- tion. When the budget commissioners have completed their work they shall certify their action to the county auditor, who shall ascertain the rate of taxes necessary to be levied upon the tax- able property therein of such county, and of each township, city, village, school district, or other taxing district, returned on the grand duplicate, and place it on the tax list of the county. [108 v. 1303; 102 v. 271.] (1) No power to reduce state levy.—The budget commissioners have power under this section to reduce the items in the annual budgets submitted by the boards and officers named in See. 5649-3a, but they have no authority to re- duce the levy certified for state purposes. State ex rel. v. Hd- mondson, 89 O. 8S. 93. Findings of Budget Commission final—The adjustment of the vari- ous amounts of taxes to be raised Sec. 5649-3d. in a taxing district and the re- vising of estimates contained in the budget, require the exercise of judgment and discretion on the part of the budget commis- sioners, and, in the absence of fraud or abuse of discretion the courts can not interfere. Manda- mus will not lie to control such discretion or to correct an error of judgment. State ex rel. v. Patterson, 93 O. S. 25. [Appropriations each fiscal half year.] At the beginning of each fiscal half year the various boards men- tioned in section 5649-3a of this act shall make appropriations for each of the several objects for which money has to be pro- vided, from the moneys known to be in the treasury from the collection of taxes and all other sources of revenue, and all expenditures within the following six months shall be made from and within such appropriations and balances thereof, but § 5649-3e THE OHIO MUNICIPAL CODE. 1018 no appropriation shall be made for any purpose not set forth in the annual budget nor for a greater amount for such purpose than the total amount fixed by the budget commissioners, exclusive of receipts and balances. [102 v. 272.] Sec, 5649-3e. [Balances unexpended.] Unexpended appro- priations of balances of appropriations remaining over at the end of the year, and the balances remaining over at any time after a fixed charge shall have been terminated by reason of the object of the appropriation having been satisfied or abandoned, shall revert to the general fund, and shall then be subject to other authorized uses, as such board or officers may determine. [102 v. 272.] Sec. 5649-4. [Emergencies.]! For the emergencies mentioned in sections forty-four hundred and fifty, forty-four hundred and fifty-one, fifty-six hundred and twenty-nine, and 7630-1 of the General Code, and for school purposes authorized by a vote of the electors under the provisions. of sections 5649-5 and 5649-5a of the General Code, to the extent of three mills for such school purposes, the taxing authorities of any district may levy a tax sufficient to provide therefor, irrespective of any of the limitations of this chapter. [108 v. 13803; 103 v. 527; 101 v. 481.] (1) Neglect or inattention of emergency. State ex rel. v. public officers to repair of high- Zangerle, 95 O. S. 1. ways does not constitute such Sec. 5649-5. [Proceedings when maximum rate insufficient. ] The county commissioners of any county, the council of any municipal corporation, the trustee of any township, or any ‘board of education may, at any time, by a majority vote of all the members elected or appointed thereto, declare by resolu- tion’ that the amount of taxes that may be raised by the levy of taxes at the maximum rate authorized by sections 5649-2 and 5649-3 of the General Code as herein enacted within its taxing district, will be insufficient and that it is expedient to levy taxes at a rate, in excess of such rate and cause a copy of such resolution to be certified to the deputy state supervisors of the proper county. Such resolution shall specify the amount of such proposed increase of rate above the maximum 1019 TAXATION. § 5649-5a rate of taxation and the number of years not exceeding five during which such increased rate may be continued to be levied. [102 v. 272.] (1) Form of resolution, see §3794 in Part I. Sec. 5649-5a. [Vote; notice; ballot.] Such a proposition shall be submitted to the electors of such taxing district at the November election that occurs more than twenty days after the adoption of such resolution. The deputy state supervisors shall prepare the ballots and make the necessary arrangements for the submission of such question to the electors of such tax- ing district, and the election shall be conducted, canvassed and certified in like manner, except as otherwise provided by law, as regular elections in such taxing district for the election of officers thereof. Twenty days’ notice of the election shall be given in one or more newspapers printed in the taxing district once a week for four consecutive weeks prior thereto, stating the amount of the additional rate to be levied, the purpose for which it is to be levied, and the number of years during which such increased rate may be continued to be levied, and the time and place of holding the election. If no newspaper is printed therein, the notice shall be posted in a conspicuous place and published once a week for four consecutive weeks in a newspaper of general circulation in such taxing district. The form of the ballots cast at such election shall be: ‘‘Wor an additional levy of taxes for the purpose of........ RGAE T ON not exceeding ............. mills, for not to GIOEECKEL .50-REO DNA years, Yes.”’ ‘‘Mor an additional levy of taxes for the purpose of........ MR A NakS A. aloe not exceeding ...........-.. mills, for not to emcee ay, Suh pak years, No.’’ [102 v. 272.] Sec. 5649-5b. [Result.] Ifa majority of the electors voting thereon at such election vote in favor thereof, it shall be lawful to levy taxes within such taxing district at a rate not to exceed such increased rate for and during the period provided for in such resolution, but in no case shall the combined max- imum rate for all taxes levied in any year in any county, city, village, school district or other taxing district, under the pro- § 5649-6 THE OHIO MUNICIPAL CODE. 1020 visions of this and the two preceding sections and sections 5649-1, 5649-2 and 5649-3 of the General Code as herein en- acted, exceed fifteen mills.? (1) §§ 5649-2 to 5649-5b limit the rate of taxes that can be levied in any taxing district for any and all _ purposes. Any statutes existing at the time of the passage of these sections, in direct conflict therewith and not specifically repealed thereby, are repealed by implication. These sections furnish the basis of cal- culation for the issue of bonds in anticipafion of income from taxes levied or to be levied. Rabe et al. v. The Board of Education et al, 88 O. S. 403. The budget commissioners cannot be compelled to approve and certify, [103 v. 57; 102 v. 273.] amount sufficient to pay interest and sinking fund on bonds for the city’s portion of the cost of a street im- provement if the item sought to be approved, together with other local levies combined, exceeds the fifteen- mill limitation stipulated in Section 5649-5b, General Code. State ex rel. v. Bish, 104 O. S. 206. A levy made against the tax- able property of a township for the construction of a road im- provement under §§ 6926 and 6928 is a tax and not an assessment, and is within the limitation pro- vided in § 5649-5b. State ex rel. v. Moenter, 99 O. S. 110. as part of the tax levy of a city, an Sec. 5649-6. [Consolidated districts.] Whenever two or more taxing districts are consolidated by annexation or other- wise, the aggregate amount of taxes authorized under section two of this act, for such consolidated district shall not exceed the sum of the aggregate amounts which would have -been au- thorized for all of said taxing districts separately. [101 v. 430.] Sec. 5649-6a. [Taxing authorities permitted to remove in- terest and sinking fund levies from limitations on tax rates on majority vote of electors.] The commissioners of any county, the trustees of any township, the council or other legislative body of any municipal corporation, or the board of education of any school district having a bonded indebt- edness on January 20, 1920, or having authority by a vote of the electors at an election held prior to said date, to issue such bonds, or having provided for the issuance of such bonds without a vote of the electors by ordinance or resolution adopted on or before said date, whether the effectiveness thereof was postponed until after said date by laws or charter provisions requiring publication or subjecting such 1021 | | TAXATION, § 5649-6b ordinance or resolution to a referendum, or not, may, at any regular or primary election held in the year 1920 or in any year thereafter during the life of any such bonds submit to the electors of such county, township, municipal corporation, or school district, in the manner provided by sections 5649-5 and 5649-5a of the General Code the propo- . sition of exempting from the limitations of sections 5649-2, 5649-3a and 5649-5b of the General Code all subsequent levies for interest and sinking fund purposes on account of such bonds. In the resolution providing for such submis- sion, the rate of taxes that would be required for such pur- poses in the next succeeding year on the basis of the duplicate made up in the year in which the resolution is adopted shall be set forth, together with the number of years during which the exemption would apply. The form of ballots cast at such election shall be: ‘‘Wor exempting interest and sinking fund levies on ac- count of outstanding bonds from all tax limitations ‘Yes’. “Wor exempting interest and sinking fund levies on ac- count of outstanding bonds from all tax limitations ‘No’.’’ [108 v. 1199.] Sec. 5649-6b. [Rate may run during life of bonds.] If a majority of the electors voting thereon at such election vote in favor thereof, it shall be lawful to levy taxes within such taxing district for such purposes during the remainder of the life of such bonds at such rate, annually, as may be necessary to pay the interest on such bonds and to provide a sinking fund for their retirement at maturity, irrespective of any of the limitations prescribed by the sections of the General Code mentioned in section 1 of this act. [108 v. 1199, 1200. ] Sec. 5649-6c. [Not applicable to current levies.] Nothing in this act shall apply to current levies in anticipation of which bonds have been issued; and such bonds shall not be considered as a part of the bonded indebtedness of any polit- ical subdivision for the purposes of this act. [108 v. 1199, 1200. ] § 5649-6d THE OHIO MUNICIPAL CODE. 1022 Sec. 5649-6d. [What interest and sinking fund levies ex- cluded.] All interest and sinking fund levies on account of bonds issued by any municipal corporation under authority of H. B. No. 712 of the 83rd general assembly passed Janu- ary 22, 1920, entitled ‘‘to authorize the taxing authorities of municipal corporations to fund deficiencies in operating revenues for the year 1920, issue bonds and levy taxes for such purposes’’ shall be excluded from the operation of any and all limitations on tax rates imposed by any law now in foree, anything in the provisions of said H. B. No. 712 or in such tax limitation laws to the contrary notwithstanding. [108 v. 1199, 1200.] Sec. 5649-7. [Joint session of commissions to adjust tax rates; powers.] Whenever a taxing district is located in two or more counties, the budget commission of the counties in which such district is located shall meet in joint session at the call of the chairman of the commission of the county wherein the greatest amount in value of taxable property in such taxing district is located, and adjust the rates of taxa- tion for the purpose of such district so as to enforce the limitation of the preceding section and to produce uniform rates throughout the districts. Provided, however, that the levies for such taxing district purposes shall not be reduced by such joint budget commission below what would be re- quired to enforce such limitation in such part of such dis- trict in which the least reduction of such levies is necessary to enforce such limitation; and such levies so fixed shall be applied uniformly throughout such district, anything to the contrary in the provisions of the preceding sections of this chapter notwithstanding. [108 v. 1226.] BONDS WHEN TAXES ENJOINED. Sec, 5659-1. [Taxing districts authorized to issue bonds when 50 per cent of tax collections is enjoined or in litiga- tion.] All municipal corporations, the board of education of any district and the commissioners of any county, through their proper officers, shall have power to borrow money and to issue bonds in payment therefor, to provide funds, to meet - Se 1023 TAXATION, § 5659-2 the payment of current expenses and sinking fund indebted- ness, when the collection of general taxes aggregating fifty per cent (50%) or more of the general tax duplicate, for any fiscal year, of their respective taxing districts, has been enjoined by any court or the collection of which is in litiga- tion. The bonds so issued may be made to run for a term not to exceed ten years and shall not bear a greater rate of interest than six per cent. (6%), nor be sold for less than par with accrued interest. All moneys received from the sale of bonds, as herein provided, shall become a part of the gen- eral fund of the taxing district wherein bonds are so issued, and shall be used for only such purposes as the enjoined or otherwise litigated collection of taxes were appropriated for. [106 v. 11.] Sec. 5659-2. [Application of money derived from bond is- sue.] All tax collections which are paid into the treasury of any taxing district, which have theretofore been enjoined or the collection of which has been in litigation, and for which deficit bonds have been issued, under authority of the preced- ing section, shall be turned over to the trustees of the sink- ing fund of said taxing district, to be applied toward the payment of the principal and interest of the deficit bonds so issued. [106 v. 11.] INHERITANCE TAX DISTRIBUTION.1 Sec. 5348-11. [Division of tax between state and subdi- vision.] Fifty per centum of the gross amount of any taxes levied and paid under the provisions of this subdivision of this chapter? shall be for the use of the municipal corporation or township in which the tax originates, and shall be eredited, one-half to the sinking fund, if any, of such municipal cor- poration or township, and the residue to the general revenue fund thereof; the remainder of such taxes, after deducting the fees and costs charged against the proceeds thereof under this subdivision of this chapter, shall be for the use of the state, and shall be paid into the state treasury to the credit of the general revenue fund therein. [108 v. 561, 575.] § 5348-12 (1) Inheritance tax.—For act providing for tax on inheritances and for distribution of such tax, see 108 O. L., p. 561; amended 108 O. L., p. 1192. The sections here carried relate to the distribu- tion of a portion of such tax to municipalities. Portion of the tax payable to THE OHIO MUNICIPAL CODE. 1024 city or village in which real es- tate is located, regardless of resi- dence of the decedent. Belle Center v. Round Head Tp., 99 O. 8. 50. ; (2) The reference is to Chapter 2, Title I, Part II, and the sub- division referred to comprises §§ 5331 to 5348-14 G. C. city or village is payable to the Sec. 5348-12. [Certification to auditor of other county por- tion of tax due; payment.] At each semi-annual settlement provided for under this subdivision of this chapter, the county auditor shall certify to the auditor of any other county in which may be located in whole or in part, any mu- nicipal corporation or township, to which any part of the taxes collected under this subdivision of this chapter, and not previously accounted for, is due, a statement of the amount of such taxes due to each municipal corporation or township in such county entitled to share in the distribution thereof. The amount respectively due upon such settlement to each such municipal corporation or township, and to each municipality and township in the county in which the taxes are collected shall be paid upon the warrant of the county auditor to the treasurer or other proper officer of such mu- -nicipal corporation or township. The amount of any refunder chargeable against any such municipal corporation or town- ship at the time of making such settlement, shall be ad- justed in determining the amount due to such municipal corporation or township at such settlement ; provided, how- ever, that if the municipal corporation or township against which such refunder is chargeable is not entitled to share in the fund to be distributed at such settlement, the county auditor shall draw his warrant for the amount thereof in favor of the county treasurer payable from any undivided veneral taxes in the possession of such treasurer, unless such municipal corporation or township is located in another county, in which event the county auditor shall issue a cer- tificate for such amount to the auditor of the proper county, who shall draw a like warrant therefor payable from any un- divided general taxes in the possession of the treasurer of 1025 TAXATION. § 5348-13 such county; and in either case at the next semi-annual set- tlement of such undivided general taxes, the amount of such warrant shall be deducted from the distribution of taxes of such municipal corporation or township and charged against the proceeds of levies for the general revenue fund of such municipal corporation or township. [108 v. 561, 575.] Sec. 5348-13. [Where tax deemed to originate on property within the state.] When the property passing is real estate or tangible personal property within this state the tax on the succession thereto shall be deemed to have originated in the municipal corporation or township in which such prop- erty is physically located. In case of real estate located in more than one municipal corporation or township the tax on the succession thereto, or to any interest therein, shall be ap- portioned between the municipal corporation or townships in which it is located in the proportions in which the tract is assessed for general property taxation in such townships or municipal corporations respectively. [108 v. 561, 576.] Sec. 5348-14. [Where tax deemed to originate on property not within the state; where tax on property of non-resident deemed to have originated; how determined.] The tax on the succession to intangible property or tangible personal property not within this state from a resident of this state shall be deemed to have originated in the municipal corpora- tion or township in which the decedent resided. The municipal corporation or township in which the tax on the succession to the intangible property of a non-resident accruing under the provisions of this subdivision of this chap- ter, shall be deemed to have originated, shall be determined as follows: 1. In the case of shares of stock in a corporation organ- ized or existing under the laws of this state, such taxes shall be deemed to have originated in the municipal corporation or township in which such corporation has its principal place of business in this state. 2. In ease of bonds, notes, or other securities or assets, in the possession or in the control or custody of a corpora- tion, institution or person in this state; such taxes shall be § 5900 THE OHIO MUNICIPAL CODE. 1026 deemed to have originated in the municipal corporation or township in which such corporation, institution or person had the same in possession, control or custody at the time of the succession. 3. In the case of moneys on deposit with any corporation, bank, or other institution, person or persons, such tax shall be deemed to have originated in the municipal corporation or township in which such corporation, bank or other insti- tution had its principal place of business, or in which such person or persons resided at the time of such succession. [108 v. 561, 576.]} CIGARETTE TAX DISTRIBUTION.1 Sec. 5900. [Distribution of tax.] The revenues and fines collected under the provisions of this chapter and the penal laws relating to cigarettes, shall be distributed as follows, to-wit: In each county, three-fourths of the money paid into the county treasury on account of such business in a city, village or township therein, shall be placed to the credit of the general revenue fund of the state, and paid into the state treasury by the county treasury as provided in other eases. [108 v. 1222; 91 v. 313, §10; 90 v. 235; Bates, 4864-40. ] (1) Cigarette tax—See §§5894 et seg. G. C. See Op. Atty. Gen. (1912), p. 252. Sec. 5901. [Same in city and township.] One-eighth of the money paid into the county treasury on account of such business in a municipal corporation shall be paid, upon the warrant of the county auditor, into the treasury of such cor- poration to the credit of the police fund, or in a corporation having no police fund, to the credit of the general revenue fund. The remaining one-eighth thereof shall be credited to the poor fund of such county; but in counties having no county infirmary, it shall be credited to the infirmary fund or poor fund of the township, village or city in which it was collected. In counties where such money is paid on acount of such busi-: ness conducted in a township outside of a municipal corpora- tion, the last named two-eighths shall be eredited to the j ' , ; ] ’ : 1027 TAXATION. § 6309 infirmary fund or the poor fund of such township. [108 v. 1222; 91 v. 318, § 10; 90 v. 235; Bates, 4364-40.] MOTOR VEHICLE TAX DISTRIBUTION.1 Sec. 6309. [Account with registration districts; payment into state treasury apportionment.] The secretary of state shall open an account with each municipal corporation and county district of registration in the state.» All registration and duplicate registration fees he shall pay weekly into the state treasury with other receipts of his office. The tax col- lections he shall apportion between the state and the several districts of registration, and pay the state’s portion thereof weekly into the state treasury with other receipts of his of- fice. He shall deposit the proceeds of tax collections due districts of registration weekly with the treasurer of state, who shall be the custodian of such funds and shall disburse the same in the manner provided in section 6309-1 of the Gen- eral Code. The treasurer of state shall give a separate and additional bond, in the sum of three hundred thousand dol- lars, the premium on which, if any, shall be paid by the sec- retary of state from his appropriation for defraying the ex- penses incident to carrying out and enforcing the provisions of this chapter and the sureties on which shall be approved by the auditor of state, conditioned for the faithful perform- ance of his duties as,such custodian. Such bond shall be de- posited in the office of the secretary of state. [108 v. 1165: 108 v. 1078; 104 v. 6; 103 v. 763; 99 v. 545.] (1) Motor vehicle tax.—For act 1165. The sections here carried providing for tax on operation of relate to the distribution of a por- motor vehicles, see 108 O. L., p. tion of such tax to municipalities. 1078, as amended 108 O. L., p. Sec. 6309-1. [Deposit of funds due districts; credit of funds; monthly transmittal and statement of distribution.] The treasurer of state is hereby authorized to deposit any portion of the funds due districts of registration under this chapter not needed for immediate distribution, in the same manner and subject to all the provisions of the § 6309-2 THE OHIO MUNICIPAL CODE. 1028 law with respect to the deposit of active state funds by such treasurer; and all interest earned by such funds so deposited shall be collected by him and placed in the state treasury to — the credit of the ‘‘state maintenance and repair fund.’’ On the first business day of each month the secretary of state shall draw and transmit to the auditor of each county a voucher on the treasurer of state for the amount of the tax collection apportioned to districts of registration located wholly or in part in his county, accompanying the same with a statement showing the distribution of the amount rep- resented thereby to each such district of registration. The county auditor shall certify the amount so transmitted into the county treasury to the credit of the undivided tax funds therein. [108 v. 1165; 108 v. 1078.] Sec. 6309-2. [Distribution and application of revenue col- lected.] The revenue collected under the provisions of this chapter shall be distributed as follows: (1) All fees collected under this chapter shall be paid into the state treasury to the credit of a fund to be designated as the ‘‘State maintenance and repair fund.’’ (2) Fifty per centum of all taxes collected under the pro- visions of this chapter shall be for the use of the municipal corporation or county which constitutes the district of regis- tration as provided in this chapter. Such moneys shall be paid into the treasury of the proper county as provided herein and distributed as are other taxes. In the treasuries of such municipal corporations and counties, such moneys shall constitute a fund which shall be used for the mainte- nance and repair of public roads and highways and streets and for no other purpose,? and shall not be subject to trans- fer to any other fund. ‘‘Maintenance and repair’’ as used in this section includes all work done upon any public road or highway, or upon any street, in which the existing foun- dation thereof is used as the sub-surface of the improvement thereof, in whole or in substantial part. (3) Fifty per centum of all taxes collected under the pro- visions of this chapter, shall be paid by the secretary of state : 1029 TAXATION. § 6309-2 into the state treasury to the credit of the ‘‘State mainte- nance and repair fund.’’ The ‘‘state maintenance and repair fund’’ provided for herein shall be available for the use of the secretary of state in defraying the expenses incident to carrying out and en- forcing the provisions of this chapter and for the use of the state highway commissioner in the manner provided by law. The general assembly shall make appropriations therefrom for such purpose. [108 v. 1078.] (1) Proceeds of motor vehicle road repair equipment. See Op. tax cannot be used for purchase of Atty. Gen. (1920), p. 802. V. GAS, WATER AND ELECTRICITY.’ PUBLIC UTILITIES COMMISSION REGULATIONS.1 Sec. 499-8. [Valuation of property to determine justice of rates.] The commission, for the purpose of ascertaining the reasonableness and justice of rates and charges for the service rendered by public utilities or railroads of this state, or for any other purpose authorized by law may investigate and ascertain the value of the property of any public utility or railroad in this state, used or useful for the service and convenience of the public.2 At the request of the council of any municipality the commission after hearing and deter- mining that such a valuation is necessary may also investi- gate and ascertain the value of the property of any public utility used and useful for the service and convenience of the public where the whole or major portion of such utility is situated in such municipality. Every public utility or railroad shall furnish to the commission, its engineers, ex- perts or other assistants from time to time and as the com- mission may require maps, profiles, contracts, reports of en- gineers and other documents, records and papers or copies of any or all of the same, in aid of any investigation and ascertainment of the value of its property, and shall grant to the commission or its agents free access to all of its prem- ises and property and its accounts, records and memoranda whenever and wherever requested by any such duly author- ized agent, and every public utility or railroad is hereby di- rected and required to co-operate with and aid the commis- sion in the work of the valuation of its property in such further particulars and to such extent as the commission may require and direct. The commission shall have such power to make all rules and regulations, as to it may seem neces- 1030 1031 GAS, WATER AND ELECTRICITY. § 499-15 sary, to ascertain the value of each and every utility or rail- road in the state. (1) Public Utilities Commission. —The railroad commission of Ohio was created by an act passed April 2, 1906 (98 O. L. 342). This act and other sections relating to railroads and telegraphs con- stituted Chapter 1, Division 2, Title 8, Part 1 of the General Code. Subsequently the name of the railroad commission was changed to the ‘‘Public Service Commission,’’ and its powers and duties extended to public utilities [106 v. 225; 103 v. 804.] was changed to the ‘‘Publie Utili- ties Commission,’’ and its powers and jurisdiction further enlarged (103 O. L. 804). Chapter 1, above referred to, now embraces §§487 to 614-84 Ee 40h (2) Valuation by Commission.— As to methods of making valua- tion, see Cincinnati v. Pub. Util. Commission, 96 O. 8. 554. §§ 499-9 to 499-13 prescribe the procedure of the commission in generally (102 O. L. 549). Still later the name of the commission making such valuation. Sec, 499-15. [Hearing to ascertain value of property; no- tice.] For the purpose of ascertaining the value of the property of every public utility or railroad in this state, in- eluding municipally owned or operated utilities, the com- mission may cause a hearing or hearings to be held at such time or times and place or places as the commission may designate. Before any hearing is had, the commission shall give the public utility or railroad affected thereby, or if the whole or the major portion of said utility or railroad is sit- uated in any municipality, then to the mayor of such munici- pality, at least thirty days’ written notice specifying the time and place of hearing, and such notice shall be sufficient to authorize the commission to inquire into the matters desig- nated in this section, but this provision shall not prevent the commission from making any preliminary examination or investigation into the matters herein referred to, or from inquiring into such matters in any other investigation or hearing. All public utilities or railroads affected, and any municipality in which the whole or the major portion of said utility or railroad is located, shall be entitled to be heard and to introduce evidence at such hearing or hearings. The commission is empowered to resort to any other source of information available. The evidence introduced at such - § 499-16 THE OHIO MUNICIPAL CODE. 1032 hearing shall be reduced to writing and certified under the seal of the commission. [103 v. 804.] Sec. 499-16. [Filing finding of facts; review.] The com- mission shall make and file its findings of fact in writing upon all matters concerning which evidence shall have been introduced before it which in its judgment have bearing on the value of the property of the public utility or railroad af- fected. Such findings shall be subject to review by the su- preme court of this state in the same manner and within the same time as other orders and decisions of the commis- sion. [103 v. 804.] Sec. 499-17. [Admissibility in evidence of finding.] The findings of the commission so made and filed, when properly certified under the seal of the commission, shall be admis- sible in evidence in any action, proceeding or hearing before the commission or any court, in which the commission, the state or any officer, department or institution thereof, or any county, city, municipality or other body politic and the pub- lic utility railroad affected may be interested, whether aris- ing under the provision of this chapter or otherwise, and such findings, when so introduced, shall be evidence of the facts therein stated as of the date therein stated under con- ditions then existing. [103 v. 804.] Sec. 614-44. [Power of municipality to fix rate, price, charge, etc; written complaint; hearing.]' Any municipal corporation in which any public utility is established may, by ordinance, at any time within one year before the expiration of any contract entered into under the provisions of sections 3644, 3982 and 3983 of the General Code between the munici- pality and such publie utility with request (respect) to the rate, price, charge, toll, or rental to be made, charged, de- manded, collected, ‘or exacted, for any commodity, utility or service by such public utility, or at any other time authorized by law proceed to fix the price, rate, charge, toll or rental that such public utility may charge, demand, exact or collect there- for for an ensuing period as provided in sections 3644, 3982 and 3983 of the General Code. Thereupon, the commission, upon 1033 GAS, WATER AND ELECTRICITY. § 614-44 complaint in writing, of such public utilities or upon complaint of one per centum of the electors of such municipal corpo- ration, which complaints shall be filed within sixty days after the passage of such ordinance, shall give thirty days’ notice of the filing and pendency of such complaint to the public utility and the mayor of such municipality, of the time and place of the hearing thereof, and which shall plainly state the matters and things complained of. Provided, however, if the council of any municipality fails by ordinance to regulate the rates to be charged by any public utility engaged in business of supplying water for puble or private consumption within sixty days after the expiration of any lawful rate, such water company or one per ecentum of qualified electors of the municipality may petition the public utilities commission to fix the just and reasonable rates for the furnishing of such services, and the public utilities commission may thereupon proceed to fix the just and reasonable rates, tolls and charges for such services which may be charged for a period of two years from the date of the filing of such petition and thereafter until changed, altered or modified by the council of such munici- pality or further order of the commission upon like appli- cation.” If any public utility shall have accepted any rate, price, charge, toll, or rental fixed by ordinance of such municipal- ity, the same shall become operative, unless within sixty days after such acceptance there shall have been filed with the commission, a complaint signed by not less than three per centum of the qualified electors of such municipality. Upon such filing, the commission shall forthwith give notice of the filing and pendency of such complaint to the mayor of such municipality and fix a time and place for the hear- ing thereof. The commission shall, at such time and place, proceed to hear such complaint, and may adjourn the hear- ing thereof from day to day. The filing of a complaint by a public utility, as herein provided, shall be taken and held to be the consent of such public utility to continue to furnish its product or service, and devote its property engaged therein to such public use § 614-44 THE OHIO MUNICIPAL CODE. 1034 during the term so fixed by ordinance or by the provisions of this act. Parties thereto shall be entitled to be heard, represented by counsel, and to have process to force the at- tendance of witnesses. (1) Public utilities commission. —This section and the several succeeding sections to 614-73 ince., are part of Chapter 1, Division II, Title III, Part I of the Gen- eral Code, relating originally to the railroad commission, later the public service commission (102 O. L. 549), and now the public utili- ties commission (103 O. L. 804 et seq.). Other provisions—Waterworks. —Municipal power to establish waterworks and provisions gov- erning them generally are found in Part I. See -$§ 3619, 3955 to 3981, 4326, 4356 and 4357. Municipal power to regulate charges by private companies, see § 3982; and to contract with private company, see § 3809, in Part I. For Cincinnati waterworks act, providing for commissioners to con- struct waterworks, see §§ 14793 to 14815 Appendix, General Code. For cases relating to the validity and construction of the act, see Alter v. Cincinnati, 56 O. S. 47; Ampt v. Cincinnati, 15 Dec. 237; 2 N. P. (N. 8.) 489; State v. Hermann, 63 O. S. 440; Coppin v. Hermann, 6 N. P. 452; 7 N. P. 6; New York & B. Co. v. Hermann, 27 C. C. 694. For special act as to management of electric light plant owned in con- nection with waterworks in certain villages, see § 14777 Appendix, Gen- eral Code. Gas and electricity Municipal power to erect, maintain and operate lighting and heating plants and che [109 v. 217; 108 v. 428; 102 v. 561.] management thereof are given in sections contained in Part I. See §§ 3618, 3990, 3991, 3992, 3995 to 4000, 4326, 4356 and 4357. Control of municipality over pri- vate corporations for furnishing gas and electric light is provided for in sections contained in Part I. See §§ 3982 to 3989 and 3993. See also Gas Co. v. Pub. Util. Com., 103 O. S. 168. Contracts of municipality with private corporations for lighting streets, etc., are provided for in §§ 3809 and 3994, ante, in Part I. For special act relating to sub- ways and conduits for electric wires in Cincinnati, see §§14817 and 14819 Appendix, General Code. For special act extending provi- sions of former chapter of Revised Statutes relating to gas and water to company supplying natural gas in cities of third grade, second class, see §14776 Appen- dix, General Code. companies Appeal from gas rate.—As to appeal by company from rate fixed by ordinance see Lighting Co. v. Pub. Util. Com., 108 O. S. 207. (2) Utilities commission not au- thorized to fix rate.—The public utilities commission is not au- thorized by statute to summarily fix a rate to be charged consum- ers of natural gas subsequent to the expiration of a contract be- tween the public utility and the municipality served during the period within which the opera- tion of a new ordinance prescrib- 1035 ing such rate is suspended by reason of the filing of a refer- endum petition. Cincinnati v. Pub. Util. Com., 96 O. S. 270. In the absence of an effective ordinance prescribing rates for service by a public utility, such rates should be established in ac- cordance with the provisions of Section 614-16 et seq. General Code. Ib. The public utilities act has no application to the provisions of a franchise ordinance which fixes rates for a definite period. Co- lumbus v. Telephone Co., 28 O. Cc. A. 102. Where, by virtue of § 4, Art. XVIII, a contract is made between a municipality and a utility company, the terms thereof are not subject to review by the public utilities com- mission. Link v. Pub. Util. Com., 102 O. 8. 336. By virtue of the provisions of §§ 614-44 and 614-47 municipalities may fix by ordinance the rates which public utility companies may charge private consumers for electric current furnished for heat, light and power. In the absence of an _ ordinance effective for that purpose such contracts are subject to the regulation of the public utilities commission. Machine Co. v. Public Service Co. 32° 0.0C.0A. 525; 13 Oh. App: 271. In order that the public utilities commission may proceed on a com- plaint filed by a public utility under the provisions of this and following sections, to fix rates to be paid by the utility for its product, or service in a munici- pality, it is necessary that there should be an ordinance in exist- Sec. 614-44a,. GAS, WATER AND ELECTRICITY. § 614-442 ence passed by the municipality fixing the rate or charge com- plained of and that the commis- sion after the hearing shall find that the rate ‘‘so fixed by or- dinance is or will be unjust or unreasonable or insufficient to yield reasonable compensation for the service or product.’? Oak Harbor v. Pub. Util. Com., 99 O. S. 275. Where the council has passed an ordinance regulating the price which may be charged for electric current to private consumers, and the company has not accepted the ordinance, and has not appealed to the commission, the commis- sion is without authority to ap- prove a schedule of rates filed with it by the company. Wash- ington v. Pub. Util. Com., 99 O. S70. Readiness to serve.—Where mu- nicipality and gas company have entered into contract fixing rate, public utilities commission is with- out power to authorize an addi- tional charge for ‘‘readiness to serve.’’ Lima v. Commission, 100 O. S. 416. Where a minimum charge for service to be rendered is made or prohibited by the ordinance under which a public utility is operated, the utility is not authorized to make a readiness to serve charge to be paid in addition to the just and reasonable rate fixed for the ren- dering of the service. Gas Co. v. Pub. Util. Com., 102 O. S. 678. See also Link v. Pub. Util. Com., 102 O. S. 336; State ex rel. v. Court of Appeals, 104 O. S. 96. [Hearing of complaints may be held in com- munity in which cause of action arose.] In all cases arising § 614-45 THE OHIO MUNICIPAL CODE. 1036 under the preceding section and other sections providing for the hearing of complaints or protests against rates, such hearings, when feasible and proper, may be held in the community in which the cause of action arose. [110 v. 451.] Sec. 614-45. [Rate will not be suspended or vacated, etc., without bond.] [§ 47.| No such complaint or appeal to the commission shall suspend, vacate, or set aside the rate, price, charge, toll or rental fixed by ordinance unless such public utility shall elect to charge the rate, price, charge, toll or rental in force and effect immediately prior to the taking effect of the regulation complained of and appealed from, and shall give an undertaking in such amount as the commission shall determine. The undertaking shall be filed with the commission and shall be payable to the state of Ohio for the use and benefit of the consumers affected by the regulation in question. The condition of the undertaking shall be that such public utility shall refund to each of its consumers, public or private, the amount collected by it in excess of the amount which shall finally be determined it was authorized to collect from such consumers. ‘he commission shall make all necessary orders in respect to the form of such undertaking and the manner of making such refunders. [102 v. 549, 562.] Sec. 614-46. [Finding as to rate] If the commission, after such hearing, shall be of the opinion that the rate. price, charge, toll or rental, so fixed by ordinance is or will be unjust or unreasonable, or insufficient to yield reasonable compensation for the service, the commission shall, with due regard to the value of all the property of the public utility actually used and useful for the convenience of the publie, excluding therefrom the value of any franchise or right to own, operate or enjoy the same in excess of the amount (ex- clusive of any tax or annual charge) actually paid to any political subdivision of the state or county as a considera- tion or the grant of such franchise or right; and exclusive of any value added thereto by reason of a monopoly or merger and to the necessity of making reservations from the income for surplus, depreciation and contingencies, and such other matters as may be proper, according to. the facts in each ease, fix and determine the just and reasonable rate,' GAS, WATER AND ELECTRICITY. 1037 § 614-47 price, charge, toll or rental to be charged, demanded; ex- acted or collected by such public utility, during the period so fixed by ordinance, which shall not be less than two years, and order the same substituted for the rate, price, charge, toll or rental so fixed by ordinance or the commis- sion may find and declare that the rate, price, charge, toll or rental, so fixed by ordinance, is just and reasonable, and ratify and confirm the same. [When effective.] No such rate, price, charge, toll or rental so determined by the commission shall become effective or valid until after the commission shall have ascertained and determined the valuation upon which such price, charge, toll or rental is based as provided in this act. And such valuation so determined shall be, at all times, open to public inspection. Thereupon the commission shall make inquiry and investiga- tion with respect to the ability of such public utility to fur- nish its product during such period, if it be found that it is able so to do, the commission shall order the public utility in question to continue to furnish the same for the period and at the rate, price, charge, toll or rental so fixed and de- termined, and such public utility shall continue to furnish its product as provided in such order. [102 v. 549, 562.] (1) When the commission, on appeal from the rate fixed by council, has found a rate to be unreasonable, it is the duty of the commission to proceed to fix and determine a just and reasonable rate. Cleveland v. Pub. Util. Comm., 100 O. S. 121. Sec. 614-47. [When act not applicable.] [§49.] ° This act shall not apply to any rate, fare or regulation now or here- after prescribed by any municipal corporation granting a right, permission, authority or franchise, to use its streets, alleys, avenues or public places, for street railway or street railroad purposes, or to any prices so fixed under sections 3644, 3982! and 3983 of the General Code, except as provided in sections 46, 47 and 48 of this act. [102 v. 549, 563.] (1) Where a rate has been fixed pursuant to Sec. 3982 et seq., and accepted by the utility, such ac- tion constitutes a contract which is specifically exempted from the operation of the statutes relative to the powers of the public utility commission. Power Co. v. Steu- benville, 99 O. S. 421. § 614-51 THE OHIO MUNICIPAL CODE. 1038 Sec. 614-51. [Power to require additions and extensions. ] The council of any municipality shall have the power upon filing of an application therefor by any person, firm or cor- poration, to require of any public utility, by ordinance or otherwise, such additions or extensions to its distributing plant as shall be deemed reasonable and necessary in the in- terest of the public, and subject to the provisions of section 9105 of the General Code, to designate the location and na- ture of all such additions and extensions, the time within which they must be completed, and all conditions under which they must be constructed and operated. Such require- ments and orders of the council shall be subject to review by the commission, as provided in sections 46 and 48 [G. C., §§ 614-44 and 614-46] hereof. The council and commission in determining the practicability of such additions and ex- tensions, shall take into consideration the supply of the product furnished by such public utility available, and the returns upon the cost and expense of constructing said ex- tension and the amount of revenue to be derived therefrom, as well as the earning power of the public utility as a whole.’ [102 v. 549, 564. ] (1) Application to telephone companies.—The provisions of the public service law apply to tele- phone companies, whether such companies are organized for profit or not. Mutual Telephone Co. v. Telephone Co., 92 O. S. 336. Street Railway Extensions.— Under the provisions of this sec- tion the public utilities commis- sion may determine the practi- cability of additions and exten- sions of street railway lines re- quired by a city ordinance. In reaching such determination the commission may consider the phy- sical conditions of the proposed route as well as the necessary plan of operation of cars there- over. If upon such heating the commission finds that operation of cars over the proposed route would entail unusual dangers and jeopardize the lives of passengers it is authorized to relieve the street railway from the obliga- tions sought to be imposed by the ordinance complained of. The Supreme Court will not disturb the commission’s findings unless the record shows them to be un- reasonable or unlawful. Cincin- nati v. Commission, 91 O. S. 331. Sec. 614-52. [Company not permitted to exercise right of franchise where another is giving adequate service.]’ No telephone company shall exercise any permit, right, license 1039 GAS, WATER AND ELECTRICITY. § 614-73 or franchise that may have been heretofore granted but not actually exercised or that may hereafter be granted to own or operate a plant for the furnishing of any telephone ser- vice, thereunder in any municipality or locality, where there is in operation a telephone company furnishing adequate ser- vice, unless such telephone company first secures from the commission a certificate after public hearing of all parties interested that the exercising of such license, permit, right or franchise is proper and necessary for the public conven- ience. [102 v. 549, 564.] (1) Validity—This section held municipality to contract for product constitutional. Telephone Co. v. or service under § 4, Art. XVIII, of Telephone Co., 102 O. S. 524. the constitution. Telephone Co. v. This section does not limit or Telephone Co., 102 O. S. 524. abridge the right or power of the Sec. 614-73. [Limitation.] [§76.] No franchise, permit, license or right to own, operate, manage or control any public utility, herein defined as an electric light company, gas com- pany, water works company or heating and cooling company, shall be hereafter granted or transferred to any corporation not duly incorporated under the laws of Ohio. [102 v. 549, 572. | ELECTRIC LIGHT COMPANIES. Sec. 9193. [Municipal control of electricity; exception.] In order to subject such companies: to municipal control alone, no person or company shall place, string, construct or maintain a line, wire, fixture or appliance of any kind to conduct elec- tricity for lighting, heating or power purposes through a street, alley, lane, square, place or land of a city or village without the consent of such municipality. This inhibition also extends to all levels above or below the surface of such public ways, grounds or places, as well as along their surfaces, but not to rights heretofore received through and exercised under proceedings of a probate court. [101 v. 14; R. 8. See. 3471a; 92 v. 204; 84 v. 7.] (1) Electric light companies, _ ing electric light and power or auto- etc.—The reference is to companies matic package carriers, as provided organized for the purpose of supply- for in § 9192 G. C. § 9194 Consent of council necessary.— Electric wires, or conduits for car- rying such wires, can not be placed in the streets, alleys or public places of a municipality, for the purpose of distributing an electric current for commercial purposes, relying upon the con- sent of the owners of abutting property without obtaining the consent of council. Cincinnati v. Light; Co. (24. 0;.00, CNS: ) 60: 4 Oh. App. 177. (2) Provision prospective.—- Provision of § 9193, prohibiting the placing of wires through a street for conducting electricity, has a pros- pective operation and does not affect wires already properly placed in the street. Henry v. Cincinnati, 25 C. CoLiss UG) Oo UNS e28e A municipality will be enjoined from removing a_ wire already placed.—/b. } But where a company already THE OHIO MUNICIPAL CODE. 1040 occupying the streets with its poles and wires removes and dis- mantles a portion of the same and renders itself wholly unable to furnish any electricity what- ever for the purpose of public lighting, it can not repossess it- self of its rights and replace its equipment without the consent of the municipality. Lighting Co. v. Upper Sandusky, 93 O. 8. 428. Scope of prohibition.—As to whether prohibition extends to case of wires a great distance above or below surface of ground, see Henry v. Cincinnati, 1 C. C. (N.S.) 289; 25 C. C. 178; and Butler v. Cinein- nati, 2 C. C. (N.S.) 376. The word “through” in the sec- tion was held not to apply to wires strung across the street. Henry v. Cincinnati, 1 C. C. (N.S.) 289; 25 C. C. 178, contra; Cincinnati v. Light Co., 21 OC. GC. (N. 8.) 260; 4 Oh. App. 177. Sec. 9194, [Any penalty cumulative.] Any penalty pro- vided by law for enforcing such inhibition shall be cumulative to other means open to the municipality by way of injunction. or otherwise, and not exclusive: [R. 8. Sec. 347la; 92 v. 204; 84 v. 7.] (1) Penalty is provided in STREETS AND PuBLIC GROUNDS. § 12644. See that section under Sec. 9195. [Powers of electric light and power companies. ] A company organized for the purpose of supplying electricity for power purposes, and for lighting the streets and public and private buildings of a city or village, may manufacture, sell and furnish the electric light and power required therein for such or other purposes, and with the consent of the munici- pality, under such reasonable regulations as it prescribes,’ also construct lines for conducting electricity for power and light purposes through the streets, alleys, lanes, lands, squares and public places of such city or village, by the erection of the EL ee ee Se a ee ae 1041 GAS, WATER AND ELECTRICITY. § 9196 necessary fixtures, including posts, piers and abutments necessary for the wires. All wires so erected and operated shall be cov- ered with a waterproof insulation, and the poles, piers, abutments and wires so located and arranged as not to interfere with the successful operation of existing telegraph and telephone wires. [83 v. 143 §1; Bates, 3471-3. ] (1) Scope of regulations.—See Toledo, ete., Co. v. Western, etc., Co., 10 C. GC. 531. Power to require that poles already erected may be used for wires of another company, Jones Bros. Electric Co., 5 C. GC. 340. Exclusive use cannot be given to one company. Morrow, etc., Co. v. Mt. Gilead, 8 N. P. 669. Ib.; Brush Electric Light Co. v. Sec. 9196. [Prior contracts declared valid.] When con- tracts for electric lighting have been heretofore entered into in which there is an omission or error from want of conformity to the statutes of this state but which contracts have been made as herein required, and when by reason of the expenditure of money or labor in the performance of such contracts or on any other account, it is just and equitable to fully execute them, in such cases the courts are authorized to uphold such contracts as binding on all parties to them and to carry them into effect as though no such defect, omission or error existed, any ‘law of this state to the contrary notwithstanding. [92 v. 291 §3; Bates, 3471-5. ] GAS AND WATER COMPANIES. Sec. 9320. [Powers.] A company organized for the pur- pose of supplying gas for lighting the streets and public and private buildings of a city, village, or township, may manu- facture, sell, and furnish the gas required therein for such or other purposes, and a company organized for the purpose of supplying the inhabitants of a city, village or township with water may sell and furnish any quantity of water required therein for such or other purposes.” Such companies may lay conductors for conducting gas or water through the streets, lands, alleys, and squares in such city or village with the consent of the municipal authorities of the city or village, or with the consent of the trustees of the township, under such § 9320 reasonable regulations as they prescribe.® 64 v. 255 § 53.] (1) Powers of gas company.—- Company is not authorized to have exclusive right to lay its conductors in the streets, by virtue of this sec- tion. ‘State v. Hamilton, 47 O. S. 52; Columbus v. Gas Co., 76 O. S. 309; and ordinance granting it ex- clusive use is void. Hamilton v. Gas 'Co., 8 N. P. 319. See also State ex rel. v. Cin. Gas Light and Coke Co., 18 O. S. 262. Gas com- pany organized under special char- ter is subject to the general laws of the state, unless clearly exempted by the terms of its charter. State ex rel. v. Gas Co., 34 O. S. 572. Company organized to furnish il- luminating gas, under earlier laws, cannot substitute natural gas. Findlay Gas Light Co. v. Findlay, 2 C..C. 237. Company organized to furnish gas for lighting purposes, may amend its charter so as to allow it w furnish both gas and electric light- ing. Picard v. Hughey, 58 O. S. 577. Power to borrow money and give mortgage, see Hays v. Galion Gas Co., 29 O. S. 330; Burt v. Rattle, SOS LG: (2) Powers of water company. —Such company has no right to appropriate property under this see- tion. State v. Salem Water Co., 5 CG. Cr 58: Regulation of price of water by council, see § 3982, in Part I. (3) Conditions which may be imposed.—Without consent of the municipality no gas company caa lawfully enter upon and occupy the streets for the purposes of its busi- ness; and a municipality, in grant- THE OHIO MUNICIPAL CODE. 1042 [R. 8. Sec. 3550; ing such consent, may require the gas company to pay annually a rea- sonable sum to compensate for the municipality’s supervision of the work during and after its installa- tion. Columbus v. Gas Co., 76 O. S. 309. A clause in an ordinance that such payments are “for the benefit of the gas company and light fund” does not render the ordinance in- valid as a means to raise general revenue. Ib. That the municipality subse- quently gave permission to other companies to lay pipes in the streets, etc., does not constitute a defense to an action for such payments. Jb. Damages.—As_ to liability of company in action by city for re-imbursement for damages, see Gas. Co. v. Elyria, 18 C. C. (N. 8S.) 156; (aff’d without opinion, ei © ae = Pao Contract can not be abrogated. —A franchise to a gas company to lay its pipes in the streets of a municipality, is a contract be- tween the gas company and the municipality, which can not be abrogated as to one of the streets included therein by vacation of such street and the reversion of the title therein to the abutting owners; but the right to main- tain said pipe continues so long as the right remains in the com- pany to supply gas to the mu- nicipality and its inhabitants. Gas Co. v. Railway, 14 N. P. CNG Ral naa. Mandatory injunction to compel gas company to construct service pipes from its mains as provided 1043 GAS, WATER AND ELECTRICITY. § 9321 by its franchise. See Cincinnati © formerly paid for such service v. Gas Co., 14 N. P. (N. 8.) 513. pipes. Ib. City not estopped from obtain- See further notes to § 3982, ing such relief because it has ante, in Part I. Sec, 9321. [Gas or electric companies may manufacture and supply both electricity and gas.] Every corporation organized under the laws of this state to manufacture and supply arti- ficial gas for light, heat and power purposes or for any of such purposes, and every corporation organized under the laws of this state to manufacture and supply electricity for light, heat and power purposes, or for any of such purposes, in addition to all powers heretofore conferred, but subject to statutory provisions in force relating to the granting of fran- chises by municipalities for either of such purposes at the time of granting the franchise, may manufacture and supply elec- tricity and artificial gas, respectively, for light, heat and power purposes, and to make all contracts, and do all things necessary and convenient for furnishing the same for both public and private objects. [R. S. Sec. 3550a; 98 v. 150; 97 v. 258; 90 v. 291.] Sec. 9322. [Consent of municipality.] Nothing herein con- fers any right to engage in such business or to erect or main- tain structures in a street, alley or public place without the consent of the municipality in which it is to be constructed. [R. S. Sec. 3550a; 98 v. 150; 97 v. 258; 90 v. 291. ] Sec. 9323. [Contract with municipality.] Ordinances and resolutions heretofore passed by any municipal corporation, and contracts heretofore made by and between any munici- pality and company organized to manufacture and supply gas, which were and still are intended to provide for supplying electricity for a municipal purpose and as to which the time of performance has not begun to run, or has not expired, shall be as valid and binding as if this statute had been in force when such ordinance or resolution was passed or contract made. [R. 8. Sec. 3550a; 98 v. 150; 97 v. 258; 90 v. 291.] Sec. 9324. [Contracts with municipality for light and water. ] The municipal authority of any city or village or the trus- THE OHIO MUNICIPAL CODE. § 9325 1044 tees of any township, in which a gas or water company is organized, may contract with such company for lighting or supplying with water the streets, lands, lanes, squares and public places in such city, village, or township.? 3551; 98 v. 150; 71 v. 93.] (1) Contract with municipal- ity.—See § 3809, in Part I, where such contracts are authorized to be made, and are exempted from the requirement of a certificate of money in the treasury before expenditure is made. ‘See also § 3994, where power is given to contract with gas or electric companies. Restrictions in former law.— Before the amendment of 1906, this section provided that “no such com- pany shall go into operation in any city or village where a corporation has been already formed, or is here- after formed, until after the ques- tion of authorizing such operation has been submitted to the qualified voters of such city or village, and [R. S. See. authorized by ordinance.” For cases relating to the question as to when a vote was required under such sec- tion, see Hunter v. Austin, 9 C. C. 583; Circleville L. & P. Co. v. Buck- eye Gas Co., 69 O. S. 259; Gas Co. v. Lima, 4 C. C. 22. Liability of company.—Water company is not liable to inhabitant, because of contract with municipal- ity, for injury due to failure to sup- ply water for fire protection. Blunk v. Dennison Co., 71 O. S. 250. Power of company, as to ap- propriation of property, denied. State ex rel. v. Water Co., 5 C. C. 58. Section cited, see State ew rel. Hamilton, 47 O. S. 52, 69. Sec. 9325. [Gas company may extend mains beyond city.] A gas company in a city or village may extend’ its pipes used for conveying gas to the various localities and inhabitants of the city or village, to any place in the vicinity thereof, out- side the corporate limits; but the right of way must be obtained from the corporate or other authorities, or person having con- trol of the places to be affected by such extension. [R. S. See. 3502; 56 v. 92 §1; 8. & C. 351.] (1) When extension may be granted.—As to what would amount to establishment of com- pany, so that it might be granted an extension, see Cincinnati Gas Co. v. Avondale, 43 O. S. 257. HYDRAULIC COMPANIES. Sec, 10128. [Construction of dams, pipe lines, etc.] Any company or companies organized for the purpose of erecting or building dams across rivers or streams in this state to raise and maintain a head of water, or for constructing and main- 1045 GAS, WATER AND ELECTRICITY, § 10129 taining canals, locks, and race-ways to regulate and carry such head of water to any plant or power house where electricity is to be generated, or for erecting and maintaining a line or lines of poles whereon to attach or string wires or cables to carry and transmit electricity, or for transporting natural gas, petroleum, water or electricity, through tubing, pipes or conduits, or by means of wires, cables or conduits, or for storing, transporting or transmitting water, natural gas or petroleum, or for generat- ing and transmitting electricity, may enter upon any private land for the purpose of examining or surveying a line or lines for its tubing, pipes, conduits, poles and wires, or for a reser- voir, dams, canals, race-ways, plant or power house, and for ascertaining the number of acres overflowed by reason of the construction of such dam or dams, and may appropriate so much thereof as is deemed necessary for the laying down or building of such tubing, conduits, pipes, dams, poles, wires, reservoir, plant and power house, as well as the land over- flowed, and for the erection of tanks and reservoirs for the storage of water for transportation and the erection of sta- tions along such line or lines, and the erection of such build- ing as may be necessary for the purpose aforesaid. [R. S. See. 3878; 97 v. 300; 94 v. 382; 85 v. 115; 72 v. 151; 69 v. 194.] Sec. 10129. [How right acquired.] Such appropriation shall be made in accordance with the law providing for compensa- tion to the owners of private property appropriated to the use of corporations. So far as the rights of the public therein are concerned, the county commissioners as to county and state roads, the township trustees as to township roads, and the councils of municipal corporations as to streets and alleys in their respective jurisdictions, subject to such regulation and restrictions,’ as they prescribe, may grant to such companies, the right to lay such tubing, pipes, conduits, poles and wires therein. But the right to appropriate for any of the purposes above specified, shall not include or extend to the erection of any tank, station, reservoir, or building, or lands therefor, or to more than one continuous pipe, conduit or tubing or land therefor, in or through a municipal corporation, unless the council first consents thereto. [R. 8. Sec. 38878; 97 v. 300; 94 v. 382; 85 v. 115; 72 v. 151; 69 v. 194.] § 10130 (1) Scope of regulations.— Where a statute grants the power to a municipality to grant a franchise, either upon ‘‘terms and conditions’’ or ‘‘regulations and restrictions’’ that it may pre- scribe, large latitude must be al- lowed, for the discretion of the municipality and its officers in the provisions made in _ such franchise contract; and unless ex- THE OHIO MUNICIPAL CODE. 1046 pressly limited by the statute au- thorizing the grant, the munici- pality may exercise its discretion in any reasonable manner compat- ible with the best service and the greatest advantage, pecuniary or otherwise, to the municipality and its wmhabitants. Gas Co. v. Colum- bus, 96 O. S. 531; affirming Colum- bus v. Gas Co., 13 N. P. (N. 8.) 394. See note to Sec. 3714, Part I. Sec. 10130. [Right to appropriate public way, how acquired. ] Nothing in the two‘preceding sections shall be construed to confer power to appropriate any portion of any street, alley, highway or other public way or land, or to confer any right in any street, alley, highway or other public way or land situated within any municipality, without its consent. [R. 8. See. 3878; 97 v. 8300; 94 v. 382; 85 v. 115; 72 v. 151; 69 v. 194.] Sec. 10131. [Reservoirs in certain places prohibited.] No reservoirs for the storage or transportation of water shall be constructed within the corporate limits of any municipal cor- poration or any public park, and all excavations, except reser- voirs for storage and transportation of water, shall be well filled by such company, and so kept by it. [R. S. See. 3878: 97 v. 300; 94 v. 382; 85 -v. 115; 72 v. 151; 69 v. 194.} SO a Vale MUNICIPAL UNIVERSITIES? Sec. 7902. [Municipal university; powers of directors; deeds; by-laws.] As to all matters not herein or otherwise provided by law, the board of directors of a municipal uni- versity, college or institution, shall have all the authority, power and control vested in or belonging to such municipal corporation as to the sale, lease, management and control of the estate, property and funds, given, transferred, covenanted or pledged to such corporation for the trusts and purposes relating thereto and the government, conduct and control of such university, college or institution. It may, unless prohibited by the terms of the trust under which such estate or property is held, sell, or lease perpetually or for any less period and with or without a privilege of purchase at a fixed price, any part or the whole of any such estate or property, and on sale, or on an election to purchase under a lease containing a privi- lege to purchase as aforesaid, convey or transfer such estate or property, and if heretofore any lease with a privilege of pur- chase at a fixed price shall have been: executed and delivered by said board, or any board preceding it in office, for any part or the whole of any such estate or property, said board shall on an election to purchase under such lease convey such premises. All instruments affecting real estate shall be executed on behalf of the board by such of its officers as it shall designate by resolution, authorizing the execution of such instrument and all deeds so executed ‘shall convey all the title of said board and of such municipal corporation in and to the real estate so conveyed; it may appoint a clerk and all agents proper and necessary for the care and administration of the trust prop- erty and the collection of the income, rents and profits thereof ; appoint the president, secretaries, professors, tutors, in- structors, agents and servants, necessary and proper for such university, college or institution and fix their compensation; 1047 § 7903 THE OHIO MUNICIPAL CODE. 1048 provide all the necessary buildings, books, apparatus, means and appliances, and pass such by-laws, rules and regulations concerning the president, secretaries, professors, tutors, in- structors, agents and servants, and the admission, government and tuition of students as it deems wise and proper, and by suitable by-laws, delegate and commit the admission, govern- ment, management and control of the students, courses of studies, discipline and other internal affairs of such university, college or institution to a faculty which the board appoints from among the professors.” [R. S. See. 4099; 101 v. 237; 97 v. 542; 67 v. 86.] (1) Directors of municipal uni- cannot be interfered with by the versities are provided for in §§ 4001- courts, on the ground that an un- 4003. See these sections and notes wise policy is being pursued. State in Part I. ex rel. v. Schauss, 3 C. C. (N.S.) (2) Discretion of board in _ 388. management of affairs of institution, Sec. 7903. [City solicitor to act as attorney.] When re- quested so to do by resolution of such board, the solicitor of such municipal corporation shall prosecute and defend, as the case may be, for and in behalf of the corporation, all com- plaints, suits and controversies in which the corporation or such board is a party, and which relate to any property, funds, trusts, rights, claims, estate or affairs under the control or direction of the board, or which, in any manner, relate to the conduct or government of such university, college or institu- tion. [R. S. See. 4099; 97 v. 542; 67 v. 86 § 3.] Sec. 7904. [When board may confer degrees.] The board of directors of such university, college or institution, upon the recommendation of the faculty thereof, may confer such de- grees and honors as are customary in universities and colleges in the United States, and such others as with reference to the course of studies and attainments of the graduates in special departments it deems proper. [R. S. See. 4102; 97 v. 544; 67 v. 86 § 4.] Sec. 7905. [University defined.] A university supported in whole or in part by municipal taxation, is defined as an assem- 1049 MUNICIPAL UNIVERSITIES. § 7906 blage of colleges united, under one organization or manage- ment, affording instruction in the arts, sciences and the learned professions, and conferring degrees. [R. S. See. 4102; 97° v. 544; 67 v. 86 § 4.] Sec. 7906. [Council may provide site for municipal uni- versity.] The council of any such municipal corporation may set apart, or appropriate as a site for the buildings and grounds of such a university, college or institution, public grounds of the city not especially appropriated or dedicated by ordi- nance to any other use, any other law to the contrary notwith- standing; and the board of education of such a municipal cor- poration also, for a like purpose may set apart, convey or lease for a term of years, any grounds or building owned or con- trolled by such board. [R. S. Sec. 4103; 97 v. 544; 89 v. 251; 82 v. 121; 67 v. 86 § 5.] Sec. 7907. [How such grant changed.]. Any grant for the use of such grounds, or buildings heretofore or hereafter made by any council or board of education, may be modified, changed or extended as to the time when it shall take effect and be in force, or otherwise, by agreement between such coun- cil, or board of education, and the board of directors of such university, college or institution. Such council shall be taken and held to be the representative of such municipal corporation vested with the title, right of possession and entire control of such property for the purposes of a new grant. [R. S. See. 4108; 97 v. 544; 89 v. 251; 82 v. 121; 67 v. 86 § 6.] Sec. 7908. [Tax levies.] The council annually may assess and levy taxes on all the taxable property of such municipal corporation to the amount of five-tenths of one mill on the dollar valuation thereof, less the amount necessary to be levied to pay the interest and sinking fund on all bonds is- sued for the university subsequent to June 1, 1910, to be applied by such board to the support of such university, college or institution and also levy and assess annually five one-hundredths of one mill on the dollar valuation thereof, for the establishment and maintenance of an astronomical observatory, or for other scientific purposes, to be deter- § 7909 THE OHIO MUNICIPAL CODE. 1050 mined by the board of directors and to be used in connec- tion with such university, college or institution, the pro- ceeds of which shall be applied by the board of directors for such purposes exclusively. But such taxes shall only be levied and assessed when the chief work of such univer- sity, college or institution is the maintenance of courses of instruction, in advance of, or supplementary to, the instruc- tion authorized to be maintained in high schools by boards of education. The above tax levies shall not be subject to any limita- tions of rates of taxation or minimum rates provided by law, except the limitations herein provided, and the further exception that the combined maximum rate for all taxes levied in any year in any city or other tax district shall not exceed fifteen mills. [103 v. 472; R. S. Sec. 4104; 98 v. 128; . 97 v. 544; 95 v. 548; 94 v. 399; 90 v. 150; 75 vy. 183, $1 67 v. 86, § 6.] Sec. 7909. [When levy to be made.] Such levies shall be made by the council at the time, and in like manner as other levies for other municipal purposes, and must be certified by it and placed upon the tax duplicate as other municipal levies. The funds of any such university, college or institution shall be paid out by the treasurer upon the order of the board of directors and the warrant of the auditor. [R. S. Sec. 4104; 98 v. 128; 97 v. 544; 95 v. 548; 94 v. 399; 90 v. 150; 75 v. 133 §1; 67 v. 86 § 6.] Sec. 7910. [Municipal university.] - Any municipal corpora- tion having a university supported in whole or part by munic- ipal taxation, may issue bonds! for the erection of additional buildings or the completion of buildings not completed, for such municipal university, and for the equipment thereof. [39 vy. 123-8 1.) (1) Bonds issued under this see- of Longworth Act. Op. Atty. Gen. tion not subject to the limitation (1918), p. 246. Sec. 7911. [Issue of bonds.] Such bonds may be issued under ordinance of the council of such municipality with the 1051 MUNICIPAL UNIVERSITIES. § 7912 approval of the mayor, but only upon the receipt of a certified resolution from the board of directors of such university of the necessity of such issue. The resolution and ordinance must specify the amount of the issue, the denomination of bonds, their rate of interest, their dates, and the times of their maturity. [99 v. 138 § 2.] Sec, 7912. [Disposal of bonds.] The bonds so issued shall be sold according to the provisions of law for the sale of munic- ipal bonds, and the proceeds thereof, excepting the premiums and accrued interest, shall be placed in the treasury of such municipality and:be used only for the purpose of erecting or completing and equipping such additional buildings as may have been specified in the resolution and ordinance calling for their issue. [99 v. 183 § 3.] Sec. 7913. [Power and control vested in directors.] In the use of such fund for such purpose, all power and control shall be vested in the board of directors of the municipal university. Such board shall make any contracts necessary for the erection or completion of the buildings specified, and the equipment thereof; supervise their erection, completion and equipment, and issue proper vouchers for the payment out of such fund of moneys due under such contracts, and for any other ex- penses connected with the erection, completion, and equipment of such buildings. The amount of premium and accrued inter- est arising from the sale of the bonds shall be paid into the sinking fund. [99 v. 1383 § 3.] Sec. 7914. [Duties of trustees of sinking fund.] The trustees of the sinking fund of any municipality issuing bonds under the above authority, annually shall levy a tax sufficient to pay the interest, and to provide a sinking fund for the final redemp- tion of the bonds at maturity. [99 v. 184 § 4.] Sec. 7915. [Board of directors of educational institution may accept educational trusts.] The board of directors of a university, college or other educational institution of any mu- nicipal corporation, in the name and on behalf of such corpora- tion, may accept and take any property or funds heretofore § 7915-1 THE OHIO MUNICIPAL CODE. 1052 or hereafter given to such corporation for the purpose of founding, maintaining or aiding a university, coltege or institu- tion for the promotion of education, and upon such terms, con- ditions and trusts consistent with law as such board deems expedient and proper for that end. [R. 8S. Sec. 4095; 97 v. 541; 92 v. 358; 67 v. 86 § 1.] Sec. 7915-1. [Exemption from taxation.] All such prop- erty, personal or mixed, or real property located within the county in which a university, college or other educational institution of any municipal corporation is located, heretofore or hereafter so given to or received by the board of directors of a university, college or other educational institution of any municipal corporation, the rents, issues, profits and income of which are used exclusively for the use, endowment or support of a university, college or other educational institution of any municipal corporation, shall be exempted from taxation so long as such property or the rents, issues, profits or income thereof is used for and exclusively applied to the endowment or support of such university, college or other educational insti- tution of such municipal corporation. [102 v. 32.] Sec, 7916. [How trust funds to be applied.] For the further endowment, maintenance and aid of any such univer- sity, college or institution heretofore or hereafter founded, the board of directors thereof, in the name and in behalf of such municipal corporation may accept and take as trustee and in trust for the purposes aforesaid any estate, property or funds which may have been or may be lawfully transferred to the municipal corporation for such use by any person, persons or body corporate having them, or any annuity or endowment in the nature of income which may be covenanted or pledged to the municipal corporation, towards such use by any person, persons or body corporate. Any person, persons or body cor- porate having and holding any estate, property or funds in trust or applicable for the promotion of education, or the advancement of any of the arts or sciences, may convey, assign and deliver these to such municipal corporation as trustee in his, their or its place, or covenant or pledge its income or any part thereof to it. Such estate, property, funds or income shall a a 1053 MUNICIPAL UNIVERSITIES. § 7917 be held and applied by such municipal corporation in trust for the further endowment, maintenance and aid of such univer- sity, college or institution, in accordance nevertheless with the terms and true intent of any trust or condition upon which they originally were given or held. 92 v. 358; 67 v. 86, § 2.] (1) Terms of donations.—The directors of an institution of learn- ing are at liberty under § 7916, re- lating to trust funds for the en- dowment, maintenance and aid of such schools, to reject a proposed [R. 8. Sec. 4096; 97 v. 542; donation, if the terms under which it is offered are not acceptable, but donations which are accepted must be accepted in accordance with the terms prescribed. State ew rel. v. Schauss, 3 C. C. (N.S.) 388. Sec. 7917. [Trusteeship to vest in city, etc.] Upon such transfer and the acceptance thereof the municipal corporation and its successors, as trustees shall become and be perpetually obligated and held to observe and execute such trust in all respects according to any other or further terms or conditions lawfully agreed upon at the time of such transfer and accept- ance. Any court having jurisdiction of the appointment of trustees of such trust for educational purposes, in a proceeding therefor, duly instituted and had, may, with the consent of its council, appoint and constitute such municipal corporation, trustee of the estate, property and funds so transferred to it, and dispense with bond and surety upon the part of the munic- ipality for the performance of such trust, unless that is required by the original terms or conditions thereof, and upon the due transfer and acceptance of such trust shall release and fully discharge the trustee or trustees so transferring it. Any acceptance or acceptances by such municipal corporation of any or all property, funds, rights, trust estate or trusts here- tofore given, granted, assigned, or otherwise conveyed or trans- ferred to or bestowed upon such a municipal corporation or to or upon such a university, college or institution in good faith, and which are still held and retained by such municipality or such a university, college or institution, shall be held and deemed to be valid and binding as to all parties. [R. S. See. 4097 ; 97 v. 542; 67 v. 86, § 2.]° Sec. 7918. [Account of receipts and expenditures of endow- ment fund.] The accounts of such trust estate, property and § 7919 ' THE OHIO MUNICIPAL CODE. 1054 funds, and of the income and expenditure thereof, shall be kept by the auditor of such municipal corporation entirely dis- tinct from all other accounts or affairs of the municipality and the moneys must be kept by the treasurer of the municipal cor- poration distinct from other moneys. Such board of directors, at all times, must confine their disbursements for current ex- penses within the income of the trust, estate, property and funds, and annually shall report to the mayor and council of such municipality a full statement of the accounts of adminis- tration of such trust and other funds. [R. 8. See. 4101; 97 v. 543; 80 v. 86; 67 v. 86, § 3.] Sec. 7919. [Investments.] Such board may invest any part of the funds belonging to or set apart for the use of such uni- versity, college or institution or to any department thereof, as it from time to time deems proper in bonds of the United States, or of the State of Ohio, or of any municipal corporation of this state, or any county, or school district herein, or in any other bonds or first mortgage securities approved by it, and may use any funds, including those arising from sales of any property sold under section seventy-nine hundred and two hereof, (provided the terms of the trust do not prohibit such use), in the improvement of any real or leasehold estate belong- ing either to the particular trust of which the property sold was part or to any other trust under its control and manage- ment; or in the improvement of any real or leasehold estate set apart for the use of such university, college or institution. [R. S. See. 4101; 101 v. 238; 97 v. 548; 80 v. 86; 67 v. 86.] Sec. 7920. [Citizens not to be charged; tuition as of other students.] Citizens of such municipalities shall not be charged for instruction in the academic department, except in professional courses therein. Such board of directors may charge fees for any purpose to students in other de- partments and to students in professional courses in the academic department, and may charge fees for purposes other than instruction to students in the academic depart- ment. From time to time they may make such university, college or institution free in any or all of its departments to citizens of the county in which it is located. The board 1055 MUNICIPAL UNIVERSITIES. § 7921 of directors may receive other students on such terms as to tuition or otherwise as they see fit. [110 v. 37; R. S. Sec. 4100; 97 v. 543; 92 v. 859; 67 v. 86, § 3.] Sec, 7921. [Board of education to have control and manage- ment of property held in trust for educational purposes.|! The custody, management and administration of any and all estates or funds, given or transferred in trust to any municipality for the promotion of education, and accepted by the council thereof, and any institution for the promotion of education heretofore or hereafter so founded other than a university as defined in this chapter, shall be committed to, and exercised by, the board of education of the school district including such municipality. Such board of education shall be held the repre- sentative and trustee of such municipality in the management and control of such estates and funds so held in trust and in the administration of such institution, excepting always funds and estates held by any municipality which are used to main- tain a university as heretofore defined. [R. 8S. See. 4105; 97 v. 545; 95 v. 519; 94 v. 241; 70 v. 117 § 1.] (1) Held unconstitutional and donors and accepted by the mu- void in so far as it changes the’ nicipal council of Toledo. Toledo plans and purpose of the terms’ v. Seiders et al, 15 C.C. (N. S.) of the original trust created by 469; aff’d 83 O. S. 495. Sec, 7922. [Tax levy.] For the uses and purposes of such board of education in administering such trusts, the council of such municipality annually may levy taxes on all the taxable property of such municipal corporation to the amount of three- tenths of one mill on the dollar valuation thereof. [R. S. See. 4105; 97 v. 545; 95 v. 519; 94 v. 241; 70 v. 117 §1.] VII. CHARITABLE AND REFORMATORY INSTITUTIONS.’ INSPECTION AND SUPERVISION. Sec. 1352. [Duties of the board; employment of visitors.]* The board of state charities shall investigate by correspond- ence and inspection the system, condition and management of the public and private benevolent and correctional insti- tutions of the state and county, and municipal jails, work- houses, infirmaries and children’s homes as well as all in- stitutions whether incorporated, private, or otherwise, which receive and care for children. Officers in charge of such in- stitutions or responsible for the administration of public funds used for the relief and maintenance of the poor shall furnish the board or its secretary such information as it re- quires. The board may prescribe such forms of report and registration as it deems necessary. For the purpose of such investigation and to carry out the provisions of this chapter it shall employ such visitors as may be necessary, who shall, in addition to other duties, investigate the care and disposi- tion of children made by institutions for receiving children, and by all institutions including within their objects the placing of children in private homes, and, when they deem it desirable they shall visit such children in such homes, and report the result of such inspection to the board. The mem- bers of the board and such of its executive force as it shall designate may attend state and national conferences for the discussion of questions pertinent to their duties. The actual traveling expense so incurred by the members and such of its executive force as it shall designate shall be paid as pro- vided by section 1351 of the General Code. [108 v. 46; 103 v. 864, 865; R. S. Sec. 656; 93 v. 105; 77 v. 227; 73 v. 165, § 2.] 1056 1057 (1) Other provisions.—Provi- sions relating to hospitals, children’s homes, infirmaries, houses of refuge, and workhouses, will be found in Part IJ. See §§ 4021-4052, 4083- 4088, 4089-4096, 4097-4153. For special act for Commercial Hospital of Cincinnati, see §§ 14786- 14792, Appendix to General Code. For special act for Cincinnati Or- phan Asylum, see §§ 14780-14785, Appendix to General Code. For special act authorizing county commissioners to unite with Zanes- ville in erection and maintenance of workhouse, see §§ 14548-14570, Ap- pendix to General Code. For special act authorizing cities of second class to establish homes for CHARITABLE AND REFORMATORY INSTITUTIONS. § 1353 the friendless, see § 14649, Appen- dix to General Code. For act authorizing cities to aid societies incorporated for conducting children’s homes, see § 14654, Ap- pendix to General Code. For act authorizing cities and vil- lages to unite in erecting soldiers’ monuments, see §§$ 14829-14844, Ap- pendix to General Code. For act providing for payment by cities of bounties to soldiers, see §§ 14854-14861, Appendix to General Code. For special act authorizing cities of third grade of first: class to rent hall of soldiers’ memorial association for armory, see § 14866, Appendix to General Code. Sec. 1353. [Plans for public buildings must be submitted to the board. ] Before their adoption by the proper officials, plans for new jails, workhouses, children’s homes, infirmaries, state institutions and municipal lock-ups or prisons and for important additions to or alterations in such existing institutions, shall be submitted to the board of state charities for its approval. [R. S. Sec. 656 ; 93 v. 105; 77 v. 227; 73 v. 165 § 2.] Sec. 1356. [Board may call conferences, other officials and agencies; Ohio welfare conference.] The board of state charities may call an annual conference, of the officials specified in section 1357 and representatives of the various social agencies in the state, to be known as the Ohio welfare conference. The purpose of the conference shall be to facili- tate discussion of the problems and methods of practical hu- man improvement, to increase the efficiency of agencies and institutions devoted to this cause; to disseminate information and to consider such other subjects of general social im- portance as may be determined upon by the conference it- self. For this purpose the conference shall organize by the election of officers, the appointment of the proper committees, and the adoption of rules and regulations. The board may also call other conferences at any time or place for the con- § 1357 THE OHIO MUNICIPAL CODE. 1058 sideration of problems relating to any particular group of institutions and agencies. [108 v. 427; 98 v. 29; R. 8. See. 656a. | ¥ Sec. 1357. [Expenses of officers and employes attending welfare conferences.] The necessary expenses of such officers and employes of the state, county and municipal boards, be- nevolent and correctional institutions, officials responsible for the administration of public funds used for the relief and maintenance of the poor, officials authorized to administer the probation laws, and members of the boards of county visi- tors as are invited by the board of state charities to the con- ferences provided fof in section 1356 shall be paid from any fund available for their respective offices, boards and institu- tions, provided they first procure a certificate from the secre- tary of the board of state charities as evidence that they were invited to and were in attendance at the sessions of such con- ferences. [109 v. 54; 108 v. 427; 98 v. 29; R. S. Sec. 656a. | Sec. 2419-1. [Commissioners may contract with cities for maintenance of county poor.] In any county containing a city which has an infirmary, it shall be competent for the commissioners of such county (if they find it will be condu- cive to economy), to agree with the director of public safety or his successor, or the proper person, persons or board in charge or control of the same of such city upon terms and conditions for the care and maintenance of the county’s poor in such city’s infirmary, and for such city to receive and care for such county poor in its infirmary in accordance with such agreement. The cost and expense of maintaining the county poor in the city infirmary shall be paid out of the county poor fund on the allowance of the county commis- sioners. [103 v. 577,] Sec, 2497. [Institutions subject to inspectors of commis- sioners or board of health.] Each public or private hospital, reformatory home, house of detention, private asylum, reforma- tory and correctional institution shall be open at any and all times to the inspection of the commissioners of the county or the board of health of the township or other municipality, in 1059 CHARITABLE AND REFORMATORY INSTITUTIONS. § 2974 which such institution is situated. [92 v. 212 $1; Bates, 633-11. ] Sec. 2974. [Duties of board of visitors.] The board of vis- itors,! by personal visitation or otherwise, shall keep them- selves fully advised of the condition and management of all ‘charitable or corrective institutions supported in whole or in part by county or municipal taxation, or which are under county or municipal control, and especially the infirmary, county jail, municipal prisons, and children’s home. From time to time they shall recommend to the county commissioners and to other officials responsible therefor, such changes and additional provisions as they deem essential for their econom- ical and efficient administration. At least once in every three months each of such institutions shall be visited by such board, or a committee of its members. Failure in the performance of these duties on the part of any member of the board for one year shall be sufficient cause for his or her removal by the judge of the probate court. [R. S. Sec. 633-16; 98 v. 28; 79 Vere (1) Board of visitors——§2971 the inspection of charitable and cor- G. C. provides for the appointment rectional institutions supported in by the probate court of each county whole or in part from county or of a board of county visitors for municipal funds. Sec. 12933. [Refusing to permit inspection of certain institu- tions.] Whoever refuses to permit, or interferes with the in- spection of a public or private hospital, reformatory, house of detention, private asylum, or institution exercising or pretend- ing to exercise a reformatory or correctional influence over its inmates, by the county commissioners of the county in which such institution is situated or the board of health of the munic- ipality in which it is situated, shall be fined not less than twenty-five dollars or imprisoned for six months, or both, and for each subsequent offense shall be fined not less than one hundred dollars and imprisoned for six months. [92 v. 212 § 4; Bates, 633-14.] § 3476 THE OHIO MUNICIPAL CODE. 1060 RELIEF OF POOR. Sec. 3476. [Trustees and municipal officers shall afford re- lief.]1 Subject to the conditions, provisions and limitations herein, the trustees of each township or the proper officers of each city therein, respectively, shall afford at the expense of such township or municipal corporation public support or relief to all persons therein who are in condition requiring it. It is the intent of this act that townships and cities shall furnish relief in their homes to all persons needing temporary or partial relief who are residents of the state, county and township or city as described in sections 3477 and 3479. Relief to be granted by the county shall be given to those persons who do not have the necessary residence require- ments, and to those who are permanently disabled or have become paupers and to such other persons whose peculiar condition is such they cannot be satisfactorily cared for ex- cept at the county infirmary or under county control. When a city is located within one or more townships, such tempo- rary relief shall be given only by the proper municipal offi- cers, and in such eases the jurisdiction of the township trus- tees shall be limited to persons who reside outside of such a city. [108 v. 266; 98 v. 270; 73 v. 233; R. S. See. 1491.] (1) For construction of this section see Op. Atty. Gen. (1919), p. 1236. Sec. 3477. [Legal settlement defined.] Hach person shall be considered to have obtained. a legal settlement in any county in this state in which he or she has continuously resided and supported himself or herself for twelve consecutive months, without relief under the provisions of law for the relief of the poor, subject to the following exceptions: First—An indentured servant or apprentice legally brought into this state shall be deemed to have obtained a legal settle- ment in the township or municipal corporation in which such servant or apprentice has served his or her master or mistress for one year continuously. Second—The wife or widow of a person whose last legal set- tlement was in a township or municipal corporation in this state, shall be considered to be legally settled in the same town- 1061 | CHARITABLE AND REFORMATORY INSTITUTIONS, § 3478 ship or municipal corporation. If she has not obtained a legal settlement in this state, she shall be doomed to be legally settled in the place where her last legal settlement was pre- vious to her marriage. [R.S. Sec. 1492; 73 v. 233.] Sec. 3478. [Defense of trustees in action for non-support of pauper.] In an action to compel the support or relief of a pauper, or in an action based upon the refusal of such officers to afford support or relief to any person, it shall be a sufficient defense for the township trustees, or proper municipal officers to show that such person, during the period necessary to obtain a legal settlement therein has been supported in whole or in part by others with the intention to thereby make such person a charge upon such township or municipal corporation. The fact that such person, during the period necessary to obtain a legal settlement therein, has been supported in whole or in part by others shall be prima facie evidence of such intention. [R. S. See. 1492a; 98 v. 112.] Sec. 3479. [Who considered having legal settlement.] v.12. 72 v119, 812 TOV. fide 11 v.32.) Sec. 2283. [Officers must deliver volumes to successor. ] Each officer named in section twenty-two hundred and eighty- one, who, by virtue of his office, receives a copy of the laws, journal, or ‘‘Ohio General Statisties,’’ as provided in such section, shall deliver it to his successor in office. If, upon demand, such officer refuses so to do he shall forfeit and pay not less than five dollars, nor more than fifteen dollars. An action to recover such forfeiture may be brought by his suc- cessor in office, in the name of the state, before a justice of the peace of the county. Forfeiture so collected shall be paid into the county treasury. [106 v. 508, 515; R. S. See. 69; 72 V, AUD, §843,.166 Ty a2 SLO: ye oie ot! Sec, 4836. [Election of municipal officers.] All elective municipal officers and judges and clerks of police courts and assessors in municipalities shall be chosen on the first Tuesday after the first Monday in November in the odd numbered years.:. [98 v. 172, § 222; 97.v. 39; 96 v.93, § 222%] (1) Duty of mayor with refer- ence to proclamation of election.. See $4837 post, under this title. Sec. 4963. [Primaries for township and municipal candi- dates; primaries in municipalities under optional plan of gov- ernment.] Primaries under this chapter to nominate candi- dates for members of the house of representatives in the congress of the United States, and for all elective state, dis- trict and county offices, and to select committeemen, shall be held in each county at the usual polling places on the sec- 1085 OFFICERS. § 9571 ond Tuesday in August of the even numbered years; and primaries under this chapter to nominate candidates for township and municipal offices and justices of the peace shall be held in each county at the usual polling places on the second Tuesday in August of the odd numbered years; provided, however, that in a municipality organized under any of the provisions of sections 3515-1 to 3515-71, both in- elusive, of the General Code and in townships lying wholly within and the boundaries of which are co-extensive with the boundaries of such municipality, primaries under this chapter to nominate candidates for all offices not provided for in the plan of government under which such municipality is organized shall be held in such municipality at the usual polling places on the same day on which primary elections are held to nominate the officers of such municipality pro- vided for in its plan of government. Primaries to nominate candidates for United States senator shall be held on the second Tuesday in August of the years in which such sena- tors are to be elected. [110 v. 143; 107 v. 400; 104 v. 8; 103 v. 476.] Sec. 9571. [Sufficiency of bonds executed by guaranty com- pany.] When a bond, recognizance or undertaking is required or permitted by law, with one or more sureties, its execution or the guaranteeing thereof, as the case may be, as sole surety, by a company authorized to guarantee the fidelity of persons holding places of public or private trust, to guarantee the per- formance of contracts other than insurance policies, and to execute and guarantee bonds and undertakings in actions or proceedings or by law allowed is sufficient, and when so executed and guaranteed, shall be a full compliance with every requirement of law, ordinance, rule or regulation that such bond, or recognizance must be executed and guaranteed by one surety or two or more sureties, or that such sureties, shall be residents or householders or freeholders. [R. S. Sec. 3641c; 97 v. 182; 92 v. 320; 90 v. 157; 88 v. 14.] ‘ Sec. 9572. [Allowance of premium.] A judge, court or officer, whose duty it is to pass upon the account of an assignee, trustee, receiver, guardian, executor, administrator or other § 9573 THE OHIO MUNICIPAL CODE. 1086 fiduciary, required by law to give bond as such, whenever any fiduciary has given bond with a surety company as surety thereon, in the settlement of his account as such fiduciary, shall allow a reasonable sum paid such a company authorized under the laws of this state so to do, for becoming his surety, not above half of one per cent. per annum on the amount of the bond; unless it is in double the amount of the liability of the fiduciary, when the sum so allowed must not exceed a fourth of one per cent. per annum. Such company must have com- plied and continued to comply with the laws of this state rela- tive to it, and with requirements as to justification, prescribed by the head of the department, court, judge, or officer required to approve or accept the bond. The bond or recognizance also must be approved by the head of the department, court, judge or officer required to approve or accept it. [R. 8S. Sec. 3641e; 97 v. 182; 92 v. 320; 90 v. 157; 88 v. 14.] Sec. 9573. [Bonds of public officers.] The two preceding sections authorize such company to become surety upon the bond required by law of any state officer, except the superin- tendent of insurance, and of any county, township or munic- ipal officer. Such company may be accepted by the officer or officers required to approve such bond, in lieu of the sureties now required by law.! [R. 8. Sec. 3641¢; 97 v. 182; 92 v. 320; 90 v. 157; 88 v. 14.] (1) The present law permits tain bonds, was held unconstitu- surety companies to act as sureties tional. State ew rel. v. Robbins, 71 on bonds of certain officers. The 0. S. 273; Haunts v. Lanman Co., old law, insofar as it required 15 Dec. 64. surety companies as sureties on cer- Workmen's Compensation. Sec. 1465-60. [Employers subject to law.] The following shall constitute employers subject to the provisions of. this act: -1. The state and each county, city, township, incorporated village and school district therein. 2. Every person, firm; and private corporation including any public service corporation, that has in service three or more workmen or operatives regularly in the same business, 1087 OFFICERS. § 1465-61 or in or about the same establishment under any contract or hire, express or implied, oral or written. [110 v. 224; 108 v. 313; 108 v. 72.]' (1) The ‘‘act’’ here referred to tainance and distribution vf the is the act further defining the state insurance fund, ete. (103 powers and duties of the state vv. 72, et seq., as amended 108 v. liability board of awards with 313 and 110 v. 224.) reference to the collection, main- Sec. 1465-61. [Definition of terms.] The terms ‘‘employe’’, ‘‘workman’’ and ‘‘operative’’ as used in this act, shall be construed to mean: 1. Every person in the service of the state, or of any county, city, township, incorporated village or school dis- trict therein, including regular’ members of lawfully con- | stituted police and fire departments of cities and villages, under any appointment or contract of hire, express or im- plied, oral or written, except any official of the state, or of any county, city, township, incorporated village or school district therein. Provided that nothing in this act shall apply to police or firemen in cities where the injured police- men or firemen are eligible to participate in any policemen’s or firemen’s pension funds which are now or hereafter may be established and maintained by municipal authority un- der existing laws. 2. Every person in the service of any person, firm or private corporation, including any public service corpora- tion, employing three or more workmen or operatives regu- larly in the same business, or in or about the same estab- lishment under any contract of hire, express or implied, oral or written, including aliens and minors, but not including any person whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer. 3. Every person in the service of any independent con- tractor or sub-contractor who has failed to pay into the state insurance fund the amount of premium determined and fixed by the industrial commission of Ohio for his employment or occupation, or to elect to pay compensation direct to his in- jured and to the dependents of his killed employes, as pro- § 1465-62 THE OHIO MUNICIPAL CODE. 1088 vided in section 1465-69, General Code, shall be considered as the employe of the person who has entered into a con- tract, whether written or verbal, with such independent con- tractor unless such employes, or their legal representatives or beneficiaries elect, after injury or death, to regard such independent contractor as the employer. [110 v. 224; 108 v. 3133107 we dT 10S (1) Emergeney police and fire- compensation. Op. Atty. Gen. man not entitled to workman’s (1918), p. 1378. Sec. 1465-62. [Contribution by state, county, city, town- ship, etc.] Every employer mentioned in subdivision one of section thirteen hereof, shall contribute to the state insur- ance fund in proportion to the annual expenditure of money by such employer for the service of persons described in subdivision one of section fourteen hereof, the amount of such payments and the method of making the same to be de- termined as hereinafter provided. [103 v. 72.] Sec. 1465-63. [Percentum to be contributed by state and subdivisions.]' The amount of money to be contributed by the state itself and each county shall be a sum equal to not less than one percentum nor more than two perecentum of the amount of money expended by the state and by each such county respectively, during the next preceding fiscal year for the service of persons described in subdivision one of section fourteen hereof, and the amount to be contrib- uted by each city shall be a sum equal to not less than one perecentum and not more than five percentum of such mon- eys so expended by such city, and the amount to be so contributed by each school district shall be equal to one- tenth of one pereentum of such money so expended by such school district, and the amount to be so contributed by any ineorporated village or other taxing district of the state shall be a sum equal to not less than one percentum nor more than two pereentum of such moneys so expended by such village or other taxing district of the state; the amount of such contribution by each taxing district shall be determined by the industrial commission of Ohio. [110 v. 264; 108 v. 555; 108 v. 72.] 1089 (1) Validity.—The provision of different methods for determining the amount to be contributed by the State and its subdivisions from that for determining the amount to be contributed by pri- OFFICERS, § 1465-65 vate employers is reasonable and does not offend Secs. 26 or 35 of Art. II of the Constitution. Por- ter, et al., v. Hopkins, 91 O. SB. 74; see also, Cincinnati v. Hop- Kins) IGN Ps GN.) 279° Sec. 1465-65. [Annual list for each county showing amount expended by and amount due from taxing districts.] In the month of December of each year, the auditor of state shall prepare a list for each county of the state, showing the amount of money expended by each township, city, village, school district or other taxing district therein for the service of persons described in subdivision one of section fourteen hereof, during the fiscal year last preceding the time of preparing such lists; and shall file a copy of each such list with the auditor of the county for which such list was made, and copies of all such lists with the treasurer of state. Such lists shall also show the amount of money due from the county itself, and from each city, township, village, school district and other taxing district thereof, as its proper contribution to the state insurance fund, and the aggregate sum due from the county and such taxing districts located therein. Provided, however, that should the industrial commission of Ohio on or before the first day of December in any year certify to the auditor of state that sufficient money is in the state insurance fund to the credit of any county or counties to provide for the payment of compensation to the injured and to the dependents of killed employes of such county or counties and the several taxing districts therein for the ensuing year, the auditor of state shall not prepare and file with the county auditors and the treasurer of state said list or lists for such county or counties specified in such certificate; and it shall be the duty of the industrial commis- sion of Ohio to make and file such certificate with the auditor of state whenever in its judgment there is sufficient money in the state insurance fund to the credit of any county or counties to provide for the probable disbursements required to be made to the injured and to the dependents of killed employes of such county or counties and the several § 1465-68 THE OHIO MUNICIPAL CODE. ~ 109u taxing districts therein for the ensuing year.' [105 v. 3; 103 v. 72.] (1) Payments into state insur- insurance fund of the amounts ance fund.—§§ 1465-66 and 1465- due from the several taxing sub- 67 provide for the payment by the divisions and for charging such county treasurer into the state amounts to such subdivisions. Sec. 1465-68. [When fund available.] Every employe mentioned in subdivision one of section fourteen hereof [G. C. § 1465-61], who is injured, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on or before January Ist, 1914, shall be paid such compensation out of the state insurance fund for loss sustained on account of such injury or death as is provided in the case of other injured or killed employes, and shall be entitled to receive such medical, nurse and hospital services and medicines, and such amount of funeral expenses as are payable in the case of other injured or killed employes. Every employe mentioned in subdivision two of section fourteen hereof, who is injured, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on and after January Ist, 1914, shall be en- titled to receive, either directly from his employer as pro- vided in section twenty-two hereof, or from the state in- surance fund, such compensation for loss sustained on ac- count of such injury or death, and such medical, nurse and hospital services and medicines, and such amount of funeral expenses in case of death as is provided by sections thirty- two to forty inclusive of the act. [103 v. 72.] Public Contracts. Sec. 17. [Debts not to be contracted without authority.] An officer or agent of the state or of any county, township or municipal corporation, who is charged or intrusted with the construction, improvement or keeping in repair of a building or work of any kind, or with the management or providing for a public institution, shall make no contract binding or pur- porting to bind the state, or such county, township or munici- 1091 OFFICERS. § 17-1 pal corporation, to pay any sum of money not previously appropriated for the purpose for which such contract is made, and remaining unexpended and applicable thereto, unless such officer or agent has been duly authorized to make such con- tract. If such officer or agent makes or participates in making a contract without such appropriation or authority, he shall be personally lable thereon, and the state, county, township or municipal corporation in whose name or behalf the con- tract was made, shall not be liable thereen. [R. S. Sec. 17; 54.v. 77 §§ 1, 2.] (1) Certificate of funds on _ been hand also required, see § 3806 in Part I. Effect of contract without funds.—When the municipality re- fuses payment to a contractor on the ground that the fund provided by legislative authority has already expended, the corporation must show clearly that at the time of making the contract and enter- ing upon its execution it with others exceeded the amount the fund provided. Otherwise this de- fense can not prevail. vy. Cameron, 33, O. S. 336. Cincinnati Sec. 17-1. [Hours constituting day’s and week’s work on public work.]' Except in cases of extraordinary emergency, not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by con- tract or otherwise; and it shall be unlawful for any person, corporation or association, whose duty it shall be to employ or to direct and control the services of such workmen, to re- quire or permit any of them to labor more than eight hours in any calendar day or more than forty-eight hours in any week, except in cases of extraordinary emergency. This sec- tion shall be construed not to include policemen or firemen. [108 v. 1286; 108 v. 854.] (1) A municipality is not liable, by implied contract, to pay a workhouse guard for extra hours beyond eight hours a day, where said guard accepts said employ- ment by the month, knowing that he is expected to work twelve hours a day, making no objection thereto or demand for extra pay during his employment, and not expecting or intending to claim compensation for extra time. Ibold v. Cincinnati, 21 N. P. (N. 8.) 155 (aff’d by Ct. of App. with- out report). Does not apply to workman en- § 17-la THE OHIO MUNICIPAL CODE. 1092 gaged in operation of municipal p. 604. See also Jb. (1915), p. power, heat, light and water 1713. plants. Op. Atty. Gen. (1917), Sec. 17-la. [Platoons in fire department.] It shall be the duty of the chief of the fire department of each city to di- vide the uniform force into platoons, and the said chief shall not keep a platoon of the uniform force on duty more than twenty-four consecutive hours, except in cases of extraor- dinary emergency, after which the platoon serving twenty- four hours shall be allowed to remain off duty for twenty- four consecutive hours. This section shall not apply to any city that may have adopted or may hereafter adopt the eight-hour regulation for its fire department. [108 v. 1286.] Sec. 17-2. [Penalty for violation.] Any person who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction be fined not to exceed five hundred dollars or be imprisoned not more than six months or both. [103 v. 854.] Sec, 22. [Contracts deemed valid.] When an officer or board of a county, township or municipal corporation, by ordinance, resolution, order or other proceeding, and in pur- suance of a statute of the state, has authorized or caused the issue and delivery of any bonds, obligations or instruments of such county, township or municipal corporation, or has caused any county, township or municipal contracts, grants, fran- chises, rights or privileges to be made or given, which were valid according to judicial construction and adjudication at the date of such action or proceeding, and loans or other things of value have been effected or acquired or expenditures have been made by other persons in reliance upon such con- struction or adjudication, such bonds, obligations, contracts, grants, franchises, rights and privileges, shall be valid and binding, notwithstanding subsequent change of such rule of judicial construction and adjudication with respect to other similar legislation. [95 v. 444.] (1) Effect of validating acts. —See Thomas v. State, 76 0. S. 341, 359. 1093 OFFICERS. § 2363 Sec, 2362. [Separate bids for work and materials.] An officer, board or other authority of the state, a county, town- ship, city, village, school or road district or of any public institution belonging thereto, authorized to contract for the erection, repair, alteration or rebuilding of a public building, institution, bridge, culvert or improvement and required by law to advertise and receive proposals for furnishing of ma- terials and doing the work necessary for the erection thereof, shall require separate and distinct proposals to be made for furnishing such materials or doing such work or both, in their discretion, for each separate and distinct trade or kind of mechanical labor, employment or business entering into the improvement. [R. S. Sec. 794; 85 v. 218; 74 v. 186 § 1.] (1) Municipal contracts.—See buildings generally, applicable to § 4332, ante in Part I, making the contracts in cities. See further provisions as to contracts for public notes to § 4332. Sec. 2363, [When contract shall not be awarded for entire work.] When more than one trade or kind of mechanical labor, employment or business is required no contract for the entire job, or for a greater portion thereof than is embraced - in one such trade or kind of mechanical labor shall be awarded, unless the separate bids do not cover all the work and ma- terials required or the bids for the whole or for two or more kinds of work or materials are lower than the separate bids therefor in the aggregate. [R. S. Sec. 794; 85 v. 218; 74 v. 186 § 1.] Sec. 2364. [Each contract shall be for only one class of labor or material; exceptions.] The contract for doing the work belonging to each separate trade or kind of mechanical labor, employment or business or for the furnishing of materials therefor, or both, shall be awarded by such officer, board or other authority in its discretion, to the lowest and best separate bidder therefor, and shall be made directly with him or them in the manner and upon the terms, conditions and limitations as to giving bond with security and otherwise as prescribed by law, unless it is let as a whole, or to bidders for more than one kind of work or materials. The provisions of this and the pre- ceding two sections shall not apply to the erection of buildings § 2365 THE OHIO MUNICIPAL CODE. 1094 and other structures of a less cost than ten thousand dollars. [R. S. Sec. 794; 85 v. 218; 74 v. 186 § 1.] Sec. 2365. [Limitation on bonds; qualification of sureties.] The bonds provided for in this chapter required to be taken by a board or officer of the county, township, city, village or school district of the state shall not exceed fifty per cent. of the estimated cost of such public building, bridge substructure or superstructure, or repairing, altering or rebuilding thereof. The officers named herein may require the person or persons on the bond of the successful bidder or bidders to qualify that they are residents of the state, and jointly worth a greater sum than the amount named in the bond over and above all liabilities and exemptions allowed by law. [R. S. Sec. 799a; 85 v. 218, 222.] > Sec. 2365-1. [Bond and additional obligation of contractor to pay subcontractors and material men.] That when public buildings or other public works or improvements are about to be constructed, erected, altered or repaired under con- tract, at the expense of the state, or any county, city, village, township or school district thereof, it shall be the duty of the board, officer or agent, contracting on behalf of the state, county, city, village, township, or school district, to require the usual bond as provided for in statute with good and suf- ficient sureties, with an additional obligation for the pay- ment by the contractor, and by all subcontractors, for all labor performed or materials furnished in the construction, erection, alteration or repair of such building, works or im- provements. [107 v. 642.] Sec. 2365-2. [Approval of bond; conditions.] Such bond shall be executed by such contractor with such sureties as shall be approved by the board, officer, or agent acting on behalf of the state, county, city, village, township or school district aforesaid, in an amount equal to at least fifty per cent (50%) of the contract price, and conditioned for the payment by the contractor and by all subcontractors, of all indebtedness which may accrue to any person, firm or cor- poration, on account of any labor performed or materials 1095 OFFICERS. § 2365-3 furnished in the construction, erection, alteration or repair of such building, works or improvement. Such bond shall be deposited with, and held by, such board, officer or agent for the use of any party interested therein. [107 v. 642.] Sec. 2365-3. [Creditor shall furnish statement of amount due to sureties; when and how suit shall be brought.] Any person, firm or corporation to whom any money shall be due on account of having performed any labor, or furnished any material in the construction, erection, alteration or repair of any such building, work or improvement, within ninety (90) days after the acceptance thereof by the duly authorized board or officer, shall furnish the sureties on said bond a statement of the amount due to any such person, firm or cor- poration. No suit shall be brought against said sureties on said bond until the expiration of sixty (60) days after the furnishing of said statement. If said indebtedness shall not be paid in full at the expiration of said sixty days, said per- son, firm or corporation may bring an action in his own name upon such bond, as provided in sections 11242 and 112438 of the General Code of the state of Ohio, said action to be com- menced within one year from the date of the acceptance of said building, work or improvement. [107 v. 642.] Sec. 2365-4. [Form of bond.] The bond hereinbefore pro- vided for shall be in substantially the following form, and recovery of any claimant thereunder shall be subject to the conditions and provisions of this act to the same extent as if such conditions and provisions were fully incorporated in said bond form: KNOW ALL MEN BY THESE PRESENTS, that we, the PEPE RIOT Cee Ae Shs dR Ieee ce aid COE SEP S ie ho cat slan sie as Lvmrieiin SBIkel sereaty a Opie ats JERE SE OL We eas as sureties, are hereby held and firmly bound unto ........-.0.+.+-05-- PUR: BED, AOI EIN D685 in thiespenalsum of « Wanai ine Ha ee ee ad see) dollars, for! thespaymentofe which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors and assigns. BIGMOG HIS Ss eh aw oe Cae Of ii mtlle Bittarctea sles meal Vs § 2366 THE OHIO MUNICIPAL CODE. 1096 THE CONDITION OF THE ABOVE OBLIGATION IS SUCH that whereas the above named principal did on the MEGS SE: 5 day: Ofoinad. dane. Scr dle Dat .aienter anaes contract. witht). . ates. Bihan ek See eee which said contract is made a part of this bond the same as though set forth herein; Now; jfzthecsaid tate fee wat Dim. oe Bo geek Gree shall well and faithfully do and perform the things agreed bY 4. cei Re ee to be done and performed accord- ing to the terms of said contract; and shall pay all lawful claims of subcontractors, material men and laborers, for labor performed and materials furnished in the carrying forward, performing or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any material man or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated. The said surety hereby stipulates and agrees that no modi- fications, omissions, or additions, in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond. [107 v. 642.] Sec, 2366. [Penalty.] Whoever, being an officer, violates any provision of this chapter shall be fined in any sum not to exceed one thousand dollars. [R. 8S. Sec. 799a; 85 v. 218, 222.] Sec. 12910. [Officer or agent interested in contracts.] Who- ever, holding an office of trust or profit by election or appoint- ment, or as agent, servant or employe of such officer or of a board of such officers, is interested in a contract for the pur- chase of property, supplies or fire insurance for the use of the county, township, city, village, board of education or a public institution with which he is connected, shall be imprisoned in the penitentiary not less than one year nor more than ten years. [R. S. Sec. 6969; 94 v. 391; 74 v. 236; 73 v. 31, 43, 86.] 1097 (1) Municipal officer.—Coim- pare § 3808 in Part I and see notes thereto. Interest in contract, what is. —To be interested in a contract it is not necessary that the officer make profits on the same; it is sufficient that, while acting as such officer, he sells property to the OFFICERS. § 12911 municipality for its use, or is per- sonally interested in the proceeds of the contract of sale, and receives the same, or part thereof, or has some pecuniary interest or share in the contract. Doll v. State, 45 O. S. 445, Scope of section.—See Barker v. State, 69 O. 8. 68, 73. Sec. 12911. [Same as to other contracts.] Whoever, holding an office of trust or profit, by election or appointment, or as agent, servant or employe of such officer or of a board of such officers, is interested in a contract for the purchase of prop- erty, supplies or fire insurance for the use of the county, town- ship, city, village, board of education or a public institution with which he is not connected, and the amount of such con- tract exceeds the sum of fifty dollars, unless such contract is let on bids duly advertised as provided by law, shall be im- prisoned in the penitentiary not less than one year nor more than ten years. [R. S. Sec. 6969; 94 v. 391; 74 v. 236; 73 v. 31, 48, 86.] ‘ Sec. 12912. [Contracts, officials forbidden to be interested ; penalty.] Whoever, being an officer of a municipal corporation or member of the council thereof or the trustee of a township, is interested in the profits of a contract, job, work or services for such corporation or township, or acts as commissioner, architect, superintendent or engineer, in work undertaken or prosecuted by such corporation or township during the term for which he was elected or appointed, or for one year thereafter,1 or becomes the employe of the contractor of such contract, job, work, or services while in office, shall be fined not less than fifty dollars nor more than one thousand dol- lars or imprisoned not less than thirty days nor more than six months, or both, and forfeit his office. [101 v. 145; R. S. See. 6976; 94 v. 406; 90 v. 29; 66 v. 164.] his term. See Op. Atty. Gen. (1922), p. 530. (1) Member of council may be appointed director of public service within one year after expiration of § 12918 THE OHIO MUNICIPAL CODE. 1098 Sec. 12918. [Fraud in connection with public work.] Who- ever, being an officer, or a person appointed or employed by an officer or by a board of officers, whose lawful duty it is to superintend the making, construction, erection, enlargement, repair or improvement of a public structure or part thereof, or any public improvement whatever, or make a plan or specification of materials or labor therefor, or an estimate of the cost thereof or the amount of !abor done on or materials furnished therefor, knowingly makes ar incomplete or fraudu- lent plan, specification or estimate or knowingly permits work to be done in a manner other than in accordance with the plans and specifications thereof, or with material different from that required thereby, or, being a contractor or his agent, knowingly permits materials to be used therein, or work to be done thereon, different from the plans and specifications and in violation of his contract, shall be imprisoned in the peniten- tiary not less than one year nor more than five years.’ [101 v. 131; R. 8. See. 6970. ] (1) Sufficiency of indictment.—See State v. Henkel, 11 N. P.(N.S.) 97. Embezzlement. Sec. 12467. [Embezzlement; fraudulent conversion.] Who- ever, being an officer, attorney-at-law, agent, clerk, guardian, executor, administrator, trustee, assignee in insolvency, officer of a lodge or subordinate body of a fraternal or mutual benefit society, servant or employe of a person, except apprentices or persons under eighteen years of age, embezzles or converts to his own use, fraudulently takes or makes away with, or secretes with intent to embezzle or convert to his own use anything of value which shall come into his possession by virtue of his election, appointment or employment thereto, if the total value of the property embezzled in the same continuous employment or term of office, whether embezzled at one time or at different times within three years prior to the inception of the prosecu- tion, is thirty-five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than ten years, or, if such total value is less than thirty-five dollars shall be fined not more than two hundred dollars or imprisoned not more than thirty days, or both. [R. 8S. Sec. 6842; 95 v. 308; 1099 OFFICERS. § 12873 83 v. 23; 82 v. 140; 78 v. 186; 74 v. 249; 73 v. 86; 73 v. 31; 66 v. 29; 55 v. 84.] (1) Policeman, obtaining money by virtue of his office and secret- ing it with intent to convert to his own use, would violate this section. Todd v. Publishing Co., 29 C. C. 155, 160. Sec, 12873. [Embezzlement of public money; deposit with bank.] Whoever, being charged with the collection, receipt, safekeeping, transfer or disbursement of public money or a be- quest, or part thereof, belonging to the state, or to a county, township, municipal corporation, board of education, cemetery association or company, converts to his own use, or to the use of any other person, body corporate, association or party, or uses by way of investment in any kind of security, stock, loan, property, land or merchandise, or in any other manner or form, or loans with or without interest to a company, corpora- tion, association or individual, or, except as provided by law, deposits with a company, corporation or individual, public money or other funds, property, bonds, securities, assets or effects received, controlled or held by him for safekeeping or in trust for a specific purpose, transfer or disbursement, or in any other way or manner, or for any other purpose, shall be guilty of embezzlement of the money or other property thus converted, used, invested, loaned, deposited or paid out, and shall be imprisoned in the penitentiary not less than one year nor more than twenty-one years and fined double the amount of money or other property embezzled. [R. S. Sec. 6841; 91 v. 338 ; 80 v. 43; 74 v. 249 § 11; 55 v. 44 §15; (S.& C. 1610).] When officer charged with officer receives (1) Purpose of this section is to safeguard the public money by keeping it in the custody of the public officer and not to secure for the public any profit or interest he might receive from the use of it. State v. Pierson, 83 O. S. 241; State v. Newton, 26 O. S. 265. Depositing public funds at in- terest either for the officer’s or the bank’s benefit constitutes em- bezzlement. State v. Cameron, et al. 91 0. 8. 50. custody.—Where public money, though under an or- dinance which is invalid, yet where there is a legal duty resting upon him to account for it, then his em- bezzlement of it is within the statute. State v. Carter, 67 O. S. 422. Where the funds embezzled were shown not to have become the property of the municipality or other political the taking of it does not violate the subdivision, § 12874 section. State v. Forbes, 4 N. P. (N. 8.) 394; 17 Dee. 102. Only officers charged with custody included.—Only those of- ficers charged by law with the du- ties, or some of them, mentioned in the statute, are subject to prosecu- tion. State v. Meyers, 56 O. S. 340. THE OHIO MUNICIPAL CODE. 1100 subject to prosecution for violation of the section. Ib. As to what officers would be in- cluded, see further State v: Morton, 21 O. S. 669; Hartford Twp. v. Thompson, 33 O. S. 321; State v. Whetstone, 7 N. P. 631. Interest on public funds.—An officer depositing funds and receiv- For example, a deputy or clerk of county treasurer, not being charged with custody, etc., is not ing the interest for his own use, would be liable to account for the interest. Eshelby v. Board, 66 O. S. yee Sec, 12874. [Fine is a judgment against whole estate.] The fine, provided for in the next preceding section, shall operate as a judgment at law on all of the estate of the person sen- tenced and be enforced to collection by execution or other process for the use only of the owner of the property or effects so embezzled, and such fine shall only be released or entered as satisfied by the person in interest as aforesaid. [R. S. See. 6841; 91 v. 338; 80 v. 43; 74 v. 249 § 11; 55 v. 44 §15; (S. &C. 1610). ] Sec. 12875. [Lawful deposit of certain fees and trust funds.] The provisions of section twelve thousand, eight hundred and seventy-three shall not make it unlawful for the treasurer of a township, municipal corporation, board of education, or cemetery association, to deposit public money with a person, firm, company, or corporation organized to do a banking business under the laws of this state or the United States, but the deposit of such funds in such bank shall not release such treasurer from liability for loss which may occur thereby. Nor shall the provisions of section twelve thousand, eight hundred and seventy-three, make it unlawful for a county auditor, county treasurer, probate judge, sheriff, clerk of courts, or recorder, to deposit fees and trust funds com- ing into their custody as such officers as above, until such time as said aforesaid officers are required to make payment of the official earnings of their offices, so deposited, into their respective fee funds as required by section twenty-nine hun- dred and eighty-three, and until such time as the trust funds, 1101 OFFICERS. § 12876 so held by them in their official capacities, may be paid to the person, persons, firms, or corporations, entitled to same, and any interest earned and paid upon said deposits shall be apportioned to, and become a part of said fees or trust funds, and shall in no instance accrue to, and be received by, the official making said deposits, for his own use. [106 v. 556; R. S. Sec. 6841; 91 v. 338; 80 v. 48; 55 v. 44; (S. & C. 1610).] Sec. 12876. [Embezzlement of public property; fraudulent conversion.] Whoever, being elected or appointed to an office of public trust or profit, or an agent, clerk, servant or employe of such officer or board thereof, embezzles or converts to his own use, or conceals with such intent, anything of value that shall come into his possession by virtue of such office or em- ployment, is guilty of embezzlement, and, if the total value of the property embezzled in the same continuous employment or term of office, whether embezzled at one time or at different times within three years prior to the inception of the prosecu- tion, is thirty-five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than ten years, or, if such total value is less than thirty-five dollars, shall be fined not more than two hundred dollars or imprisoned not more than thirty days, or both. [R. S. Sec. 6842; 91 v. 338; 80 v. 48; 74 v. 249; 55 v. 44.] (1) Return of money immate- rial——-The use of public money in taking up a private loan consti- tutes embezzlement and the fact that the money was promptly re- of that section (12876) and kin- dred statutes to prevent public officers and agents from using public funds in their possession or under their control, in any placed is held immaterial in State v. Baxter, 89 O. 8. 269 in which case the court in the syllabus says, ‘‘It is the design and policy manner or for any purpose not expressly authorized by law.’’ See also State v. Cameron, 91 O. 8. 50. Sec, 12878. [Embezzlement by municipal and school offi- cers.] Whoever, being a member of the council of a municipal corporation, or an officer, agent, clerk or servant of such cor- poration, or board or department thereof, or an officer, clerk or servant of a board of education, knowingly diverts, appropri- ates or applies funds, or a part of a fund raised by taxation or § 12879 THE OHIO MUNICIPAL CODE. 1102 otherwise, to any use or purpose other than that for which it was raised or appropriated, or knowingly diverts, appropriates or applies money borrowed, or a bond of the corporation or part of the proceeds of such bond, to any use or purpose other than that for which such loan was made, or bond issued, shall be imprisoned in the penitentiary not less than one year nor more than twenty-one years and fined in double the amount of money or other property embezzled. [R. S. Sec. 6846; 74 v. 250 § 15; 73 v. 116 § 675: 66 v. 263 § 671.] (1) Purpose of section is to punish as an offense, the diversion, appropriation or application of funds to a use other than that for which the funds were raised; a con- version of money to the officer’s own use is embezzlement under § 12873 and is not within the above sec- tion. State v. Johnson, 53 O. S. 307. Sec. 12879. [Fine is judgment on whole estate.] The fine provided for in the next preceding section, shall be a judgment at law on all of the estate of the person sentenced and be en- forced to collection by execution or other process for the use only of the owner of the property or effects so embezzled, and such fine shall only be released or entered as satisfied by the person in interest as aforesaid. [R. 8S. Sec. 6846; 74 v. 250 § 15; 73 v. 116 § 675; 66 v. 263 § 671.] Sec. 12880. [Selling public property with intent to de- fraud.] Whoever, being intrusted with the care, custody or control of property of the state, county, township or municipal corporation, sells or disposes of it for his own use, with intent to defraud, shall be imprisoned in the penitentiary not less than one year nor more than twenty-one years and fined double the amount of money or other property so embezzled. [R. S. See. 6847; 74 v. 250 § 16; 69 v. 193 § 2.] Sec. 12881. [Fine is a judgment on whole estate.] The fine provided for in the next preceding section shall be a judg- ment at law on all of the estate of the person sentenced, and be enforced to collection by execution or other process for the use only of the owner of the property or effects so embezzled and such fine shall only be released or entered as satisfied by 1103 OFFICERS. § 13674 the person in interest as aforesaid. [R. 8. Sec. 6847; 74 v. 250 § 16; 69 v. 193 § 2.] Sec. 13674. [What is prima facie evidence of embezzle- ment by public officer.] Failure or refusal to pay over, or produce the public money, or part thereof, by an officer or other person charged with the collection, receipt, transfer, disburse- ment or safe-keeping of such money, or part thereof, whether belonging to the state, or a county, township, municipal corpora- tion or board of education in this state, or other public money, or to account to, or make settlement with a legal authority, of the official accounts of such officer or person, shall be prima facie evidence of the embezzlement thereof. Upon the trial of such officer or person for the embezzlement of public money under any provision of law, it shall be sufficient evidence, for ‘the purpose of showing a balance against him, to produce a transcript from the books of the auditor of state, auditor of the county or the records of the commissioners of the county. The’ refusal of such officer or person, whether in or out of office, to pay a draft, order or warrant drawn upon him, by an authorized officer, for public money in his hands, or a refusal by a person or public officer to promptly pay over to his successor public money or secureties on the legal requirement of an authorized officer of the state or county, on the trial of an indictment against him for embezzlement, shall be prima facie evidence thereof.t [R. S. Sec. 7299; 55 v. 44; S. & C. 1610.] (1) Application of section is to the statute. State v. Meyers, 56 persons only who are charged by 0. S. 340. law with the duties mentioned in False Vouchers. Sec. 13105. [False bill, note, bond, etc., for payment out of public treasury prohibited; penalty.] Whoever, knowing it to be false or fraudulent in whole or in part, makes, presents for payment or certifies as correct to the general assembly, either house thereof or a committee thereof, to the auditor of state, other state officer or board thereof, or the auditor, commis- sioners or other officers of a county, or the auditor or other accounting officer of a municipal corporation, or the township § 12893 THE OHIO MUNICIPAL CODE, 1104 trustees or other township officer, a claim, bill, note, bond, account, pay-roll or other evidence of indebtedness, for procur- ing its allowance or an order for the payment thereof out of the treasury of the state, or of such county, township or municipal corporation, or whoever, knowing it to be false and fraudulent in whole or in part, receives payment thereon from the treasurer of the state, or a county, township or municipal corporation, if it is false or fraudulent to the amount of thirty- five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than ten years, or, if it is fraudulent to a sum less than that amount, shall be fined not more than two hundred dollars or imprisoned not more than thirty days, or both.’ [102 v. 115; R. S. See. 7075; 69 v. 193 §1.] (1) Accounting officer means an auditor to whom a false claim such an officer as'may lawfully pass upon and allow a claim or account ‘against a municipal corporation, upon the authority of which allow- ' anee the comptroller may issue his warrant upon the treasurer. Hauck v. State, 45 O. S. 439. A board of infirmary directors of a municipality was held to be in- cluded. Jb. Authority of officer.—Whether has been presented has power in himself to allow or pay the claim or not, the presentation of the fraudulent claim for the purpose of procuring from him or other proper authority its allowance, will consti- tute the offense. State v. Voute, 68 O. S. 274. Sufficiency of indictment.— Must aver wherein claim was false. Du Brul v. State, 80 O. 8. 52. Preferment. to Soldiers. Sec. 12893. [Failure to prefer soldiers for appointments. ] Whoever, being in a public department of the state or a munic- ipal corporation, or upon public works of the state, fails to prefer for appointment and employment honorably discharged soldiers, sailors and marines of the United States, shall be fined not Jess than fifty dollars nor more than one hundred dollars. [92 v. 50 §2; R. S. See. 3107-48. ] Inspection and Supervision of Public Offices. Sec. 274. [Bureau of inspection of public offices; powers and duties.]’ There shall be a bureau of inspection and su- pervision of public offices in the department of auditor of 1105 OFFICERS. § 975 state which shall have power as hereinafter provided in sections two hundred seventy-five to two hundred eighty- nine, inclusive, to inspect and supervise the accounts and reports of all state offices, including every state educational, benevolent, penal and reformatory institution, public insti- tution and the offices of each taxing district or public in- stitution in the state of Ohio. Said bureau shall have the power to examine the accounts of every private institution, association, board or corporation receiving public money for its use and purpose, and may require of them annual reports in such form as it may prescribe. The expense of such examination shall be borne by the taxing district pro- _ viding such public money. By virtue of his office the auditor of state shall be chief inspector and supervisor of public offices, and as such appoint not exceeding two deputy in- spectors and supervisors, and a clerk. No more than one deputy inspector and supervisor shall belong to the same political party. [106 v. 26; 103 v. 246; 101 v. 382; 95 v. 511.] (1) Validity of act.—See State held constitutional. See also State, v. Shumate, 72 O. S. 487, where ex rel., v. Maharry, 97 O. S. 272. Sec. 275. [Traveling expenses of inspectors and super- visors.] All necessary traveling and hotel expenses of the deputy inspectors and supervisors shall be paid from the state treasury. [107 v. 503; 101 v. 382; 95 v. 511.] Sec. 276. [Appointment of examiners; compensation and mileage.] The chief inspector and supervisor shall appoint such assistants as he deems necessary, who shall be known as state examiners, and assistant state examiners. State exam- iners shall receive the same compensation as is paid the audi- tor of the county in which the examination is held, said com- pensation to be reduced to a per diem basis by dividing the annual compensation of said county auditor by three hun- dred; provided, such per diem compensation shall not be more than fifteen dollars nor less than eight dollars per day. As- sistant state examiners shall receive one-half of the above compensation so determined, except that in no event shall the per diem compensation be less than five dollars. Hach state examiner and assistant state examiner shall be allowed mile- § 277 THE OHIO MUNICIPAL CODE. 1106 age at the legal rate of railroad transportation when traveling on official business under orders of the chief inspector and supervisor or the deputy inspectors and supervisors. Should any such examiner or assistant be called upon to testify in any legal proceeding in regard to any official matters, they shall be entitled to the compensation and expense herein pro- vided, to be paid in the same manner, but shall not be entitled to witness fees. [109 v. 98; 108 v. 262; 101 v. 382; 95 v. 511.] Sec. 277. [Uniform system.] The auditor of state, as chief inspector and supervisor, shall prescribe and require the installa- tion of a system of accounting and reporting for the public offices, named in section two hundred seventy-four. Such sys- tem shall be uniform in its application to offices of the same grade and accounts of the same class, and shall prescribe the form of receipt, vouchers and documents, required to separate and verify each transaction, and forms of reports and state- ments required for the administration of such offices or for the information of the public. [95 v. 512 § 2; 101 v. 383.] Sec. 278. [Forms of accounts.] The system shall provide forms of accounts showing the sources from which the public revenue is received, the amount collected from each source, the amount expended for each purpose, and the use and disposition of other public property. It shall also provide forms of ac- counts of every public service industry, showing cost of owner- ship and operation, amount collected from private users, amount received from taxation, and value of service rendered the public. [95 v. 512 §§ 2, 4.] Sec. 279. [Separate appropriation accounts.] A separate account shall be kept of each appropriation made or fund ere- ated by each taxing body, or legislative body, showing date and manner of payment therefrom, name of person or organiza- tion paid, and for what purpose paid. Separate accounts shall be kept for each institution, department, improvement, or public service industry, under the supervision or control of the state, or of a taxing body. [101 v. 383; 97 v. 272 § 3; 95 v. 512.] 1107 . OFFICERS. . § 280 Sec. 280. [Department accounts.] All service rendered and property transferred from one institution, department, improvement, or public service industry, to another, shall be paid for at its full value. No institution, department, improve- ment, or public service industry, shall receive financial benefit from an appropriation made or fund created for the support of another. When an appropriation account is closed, an unex- pended balance shall revert to the fund from which the appro- priation was made. [97 v. 272 §3; 95 v. 512.| Sec. 281. [Certified report of each institution or taxing district; when made and what it shall contain.] A financial report of each public institution or taxing district for each fiscal year shall be made in accordance with forms prescribed by the chief inspector and supervisor. The report shall be certified by the proper officer or board, filed with the bureau within thirty days after the close of the fiscal year, and contain the following: amount of collections and receipts, and accounts due from each source; amount of expenditures for each pur- pose; income of each public service industry owned or operated by a municipality, and the cost of such ownership or opera- tion; amount of public debt of each taxing district, the pur- pose for which each item of such debt was created, and the provision made for the payment thereof. Each county auditor shall receive for his services in making such report the sum of fifty dollars, to be paid out of the county treasury upon the allowance of the county commissioners and to be credited to said auditor’s fee fund. [102 v. 278; 101 v. 383; 97 v. 272; 95 v. 513.] Sec. 282. [Report shall be verified and published.] The report shall be verified by the state inspector and supervisor, a deputy state inspector and supervisor, or a state examiner, and the substance thereof published at the expense of the state in an annual volume of statistics, which shall be submitted to the governor, who shall transmit it to the general assembly at its next session. [97 v. 272 § 5; 95 v. 513.] Sec. 283. [Penalty for refusal to comply with instructions. ] A public officer or employe who refuses or neglects to keep the § 284 THE OHIO MUNICIPAL OODE. 1108 accounts of his office in the form prescribed, or make the reports required by the bureau of inspection and supervision, shall be removed from office on hearing before the proper authority. [97 v. 273 § 6; 95 v. 5138.] Sec. 284. [Biennial and annual examinations.] The bu- reau of inspection and supervision of public offices, shall ex- amine each public office. Such examination of township, vil- lage and school district offices shall be made at least once in every two years, and all other examinations shall be made at least once a year, except that the offices of justices of the peace shall be examined at such times as the bureau shall determine. On examination, inquiry shall be made into the methods, accuracy and legality of the accounts, records, files and reports of the office, whether the laws, ordinances and orders pertaining to the office have been observed, and whether the requirements of the bureau have been complied with. [103 v. 506, 507; 101 v. 388; 97 v. 278; 95 v. 514.] Sec. 285. [Powers of inspection officers; employment of experts.] The chief inspector and supervisor, each deputy . inspector and each state examiner, shall have such authority to issue subpoena and compulsory process, to direct service thereof by a sheriff or constable, to compel the attendance of witnesses and the production of books and papers before him, to administer oaths, and to punish for disobedience of sub- poena, refusal to be sworn, or to answer as a witness, or to produce books and papers, as is conferred upon officers au- thorized to take depositions. Sheriffs and constables shall receive the same fees as for like services in similar cases, and witnesses shall receive the same fees as are allowed in the common pleas court. The chief inspector, and, subject to his approval, each deputy inspector and each state examiner, shall likewise have authority to employ such experts or other assistants as may be necessary to disclose the facts concern- ing any matter under investigation, and fix their compensa- tion. [103 v. 506, 507; 97 v. 273; 95 v. 514,] Sec. 286. [What report of examination shall set forth; where report filed.] | The report of the examination shall set 1109 vPFICERS, § 286 forth, in such detail as may be deemed proper by the bureau, the result of the examination with respect to each and every matter and thing inquired into and shall be made and signed by the state examiner in charge of the examination or by a deputy inspector, and shall be filed in the office of the bureau of inspection and supervision of public offices and certified copies thereof filed as follows: One in the of- fice of the auditing department of the taxing district re- ported upon, and one in the office of the attorney general, prosecuting attorney, city solicitor, or mayor of a village, as hereinafter provided. If the report relates to the ex- penditure of public money from the state treasury or to the disposition of property belonging to the state, the cer- tified copy thereof hereinbefore provided for shall be filed with the attorney general; if it relates to the expenditure of public money belonging to the treasury of a city or city school district or to the disposition of public property be- longing to such city or city school district, the certified copy thereof shall be filed with the city solicitor of such city; if the report relates to the expenditure of public money belonging to the treasury of a village or the dispo- sition of publie property belonging to such village, the cer- tified copy thereof shall be filed with the mayor of such village; if the report relates to the expenditure of public money belonging to the treasury of any other subdivision of the state or of a special taxing district or to any custo- dian of public funds other than the treasurer of state, the treasurer of a city, the treasurer of a city school district or the treasurer of a village, or to the disposition of publie property belonging to such subdivision or special taxing dis- trict, or to any custodian of public property not otherwise mentioned herein, the certified copy thereof shall be filed with the prosecuting attorney of any county in which such political subdivision or special taxing district or part thereof is located, or in which such custodian of public money or public property resides. Such copy of the report may be so filed by expressing or mailing it to the office of the attorney general, city solicitor, mayor or prosecuting attorney, as the case may be. § 286 THE OHIO MUNICIPAL CODE. 1110 [Collection of amounts found due by bureau; officer au- thorized to institute proceedings; employment of counsel.] If the report sets forth that any public money has been ille- gally expended, or that any public money collected has not been accounted for, or that any public money due has not been collected, or that any public property has been con- verted or misappropriated, the officer receiving such certi- fied copy of such report, other than the auditing department of the taxing district, may, within ninety days after the re- ceipt of such certified copy of such report, institute or cause to be instituted, and each of said officers is hereby author- ized and required so to do, civil actions in the proper court in the name of the political subdivision or taxing district to which such public money is due or such public property be- longs, for the recovery of the same, and shall prosecute, or cause to be prosecuted the same to final determination. Any mayor of a village is hereby authorized and required to em- ploy legal counsel for such purpose, who shall be paid out, of the treasury of the village on voucher approved by the mayor and on warrant of the village clerk, and the amount of such compensation shall constitute a charge against said village notwithstanding the failure of the council thereof to appropriate money or levy funds therefor. Each prosecuting attorney, city solicitor, or legal counsel employed by a mayor of a village shall forthwith notify the attorney general of the filing of such actions and keep him fully advised of the progress thereof; and the attorney general or his assistant may appear in any such action on behalf of the particular political subdivision or taxing district and may, either in conjunction with or independent of such prosecuting attor- ney, city solicitor or legal counsel employed by a mayor, prosecute the same to final determination; and the attorney general may, when in his judgment it is proper or there is good reason for so doing, if requested so to do by the auditor of state, bring the action in all cases where the prosecuting attorney, city solicitor or mayor fails or neglects to do so within ninety days after a report of an examination has been so filed. [Criminal proceedings; when instituted.] If a report sets 1111 OFFICERS. § 286-1 forth any malfeasance or gross neglect of duty on the part of any officer or employe for which a criminal penalty is pro- vided by law, a certified copy thereof shall be filed with the prosecuting attorney of the county in which the offense is committed, and such prosecuting attorney shall, within ninety days after receipt thereof, institute criminal proceed- ings against such officer or employe. [Claims shall not be abated or compromised.] No claim for money or property found in any such report to be due to any public treasury or custodian thereof in any such re- port shall be abated or compromised either before or after the filing of civil actions, by any board or officer or by order of any court unless the attorney general shall first give his written approval thereof. [‘‘Public money’’ defined; payment to taxing district.] The term ‘‘public money’’ as used herein shall include all money received or collected under color of office, whether in accordance with or under authority of any law, ordinance or order, or otherwise, and all public officials, shall be liable therefor. All money received under color of office and not otherwise paid out according to law, shall be due to the political subdivision or taxing district with which the officer is connected, and shall be by him paid into the treasury thereof to the credit of a trust fund, there to be retained until claimed by the lawful owner; if not claimed within a period of five years after having been so credited to said special trust fund, such money shall revert to the general fund of the political subdivision where collected. [Submission to attorney general before entry of final or- der.] No judgment or final order shall be entered in any civil action commenced under the authority or direction of this section until such entry shall have been submitted to the attorney general, and the attorney general is hereby constituted an attorney of record in each such action. [108 v. 1115; 103 v. 506; 101 v. 383; 97 v. 273; 95 v. 514.] Sec. 286-1. [Jurisdiction and prosecutions in civil actions.] § 286-2 THE OHIO MUNICIPAL CODE. 1112 The civil actions provided for in section 286 of the General Code may be entertained, heard and determined by any court having jurisdiction of the amount involved or having jurisdiction to afford the remedy prayed for, notwithstanding the absence of any other provision of law authorizing such civil actions to be filed by the attorney general, prosecuting attorney, city solicitor or legal counsel employed by the mayor of a village. In any such action it shall be sufficient for the plaintiff to allege in the petition so much of the re- port of the bureau of inspection and supervision of public offices as relates to the claim against the defendant therein and that the amounts claimed against the defendant are un- paid, and it shall not be necessary in such petition separately to state and number any separate causes of action, the find- ings of such report, upon whatever claims or circumstances based, being considered for that purpose as constituting a single cause of action; nor shall the plaintiff be required to set forth in the petition any other or further matter relating to such claims. A certified copy of any portion thereof shall constitute prima facie evidence of the truth of the allegations © of the petition. [103 v. 506, 509.] Sec. 286-2. [Advancement of causes.] On the application © of the plaintiff the court wherein such action is pending shall advance the cause on the docket. [103 v. 506, 509.] Sec. 286-3. [When cause of action deemed to have ac- crued.] No cause of action on any matter set forth in any report made under authority and direction of section 286, General Code, shall be deemed to have accrued until such report is filed with the officer or legal counsel whose duty it is to institute civil actions for the enforcement thereof, and all statutes of limitations otherwise applicable thereto shall not begin to run until the date of such filing. [103 v. 506, 509.] Sec. 286-4. [Liability of sureties.] In addition to any and all liability of any officer or employe for which he may be sued under the provisions of section 286 and the succeeding sections of the General Code, the sureties on any official bond 1113 OFFICERS. § 287 given by any such officer or employe shall be liable to the same extent as the principal and such actions may be brought upon such official bonds. [103 v. 506, 509.] Sec. 287. [Expenses of bureau.] The necessary expenses of the maintenance and operation of the bureau of inspection and supervision shall be borne by the several counties in pro- portion to their population at the preceding federal census. The auditor of state shall draw on the treasurer of each county for its proportion of such expenses and the county treasurer shall pay such amount from the general revenue fund of the ~ county semi-annually during the months of June and December. All moneys so received by the auditor of state shall be paid into the state treasury to the credit of the bureau of inspection and supervision fund. [95 v. 514 § 9.] Sec. 288. [Expenses of inspection and auditing.] The ex- penses of the inspection and auditing of the public accounts and reports of a taxing district shall be borne by the district, and the auditor of state shall certify the amount of such expenses to the auditor of the county in which the district is situated. The county auditor shall forthwith issue his warrant in favor of the auditor of state on the county treasurer, who shall pay it from the general fund of the county, and the county auditor shall charge the amount so paid to the taxing district at the next semi-annual settlement. Moneys so received by the auditor of state shall be paid into the state treasury to the credit of the public audit expense fund. [97 v. 274 § 10; 95 v. 514.] Sec. 289. [Payment over of public moneys.] Every public officer and employe whose duty it is to collect or receive pay- ments due the public shall deposit all public moneys collected or received by him with the treasurer of the taxing district once every twenty-four consecutive hours. If such officer or employe collects or receives public moneys for a taxing district of which he is not an officer or employe, he shall during Saturday of each week pay to the proper officer of such district the amount so collected or received during the current week. [97 v. 273 § 6; 95 v. 513.] § 4837 THE OHIO MUNICIPAL CODE. 1114 PROVISIONS AS TO CERTAIN OFFICERS. Mayor. Sec. 4837. [Mayor shall issue proclamation of election.] Previous to any election for municipal officers, the mayor shall issue a proclamation to the electors of the corporation or of the respective wards or districts thereof, as the case may require, setting forth the time and places of election and the officers to be chosen, and cause such proclamation to be published in a newspaper printed in the corporation at least ten days previous to the election. If no such newspaper is published in the cor- poration, such notice may be given by posters. [R. S. Sec. 1726; 66 v. 161 § 73.] (1) Abstract of votes.—Duty made by judges and clerks of elec- of mayor with reference to return’ tion, see § 5114 G. C. FORM OF MAYOR’S ELECTION PROCLAMATION. Election Notice. The qualified electors of the city [or village] of ...............--+ State of Ohio, are hereby notified that an election will be held at the usual voting places in said city [or village] on .............+eeeeee , the oe Sietpese F day of ............, 19...., between the hours hit ovith AMS andy Sein sand ate P. M., at which election the following officers will be chosen: (here insert names of officers to be elected.) Given under my hand and the corporate seal of the city [or peel OF orgies % oe ee ee Pai) UR nicicee, es dayrofacai.s talons » AD Sec. 4841. [Proclamation as to sale of liquors on election day.] Three days previous to and on the day of any election, the mayor shall issue a proclamation to the public, setting forth therein the substance of the enactment to prohibit the sale of intoxicating liquors upon that day, and he shall take proper measures for the enforcement of such enactments.1 [R.S. See. 1838; 61 v. 24.] (1) See § 13197 forbidding sale of intoxicating liquors on election day. Auditor. Sec. 5114. [Abstract of vote for municipal officers.] The returns of municipal elections shall be made by the judges and 1115 OFFICERS. § 5115 clerks in each precinct to the clerk or auditor of the munici- pality. Such clerk or auditor, or, in his absence or disability, a person selected by the council, shall call to his assistance the mayor, and, in his presence, make an abstract and ascertain the candidates elected, as herein required with respect to county officers. Such clerk or auditor shall make a certificate as to each candidate so elected, and cause it to be delivered to him. If there is no mayor, or he is absent, disabled or a candidate at such election, the clerk or auditor shall call to his assistance a justice of the peace of the county. [R. S. Sees. 1728, 1729; 97 v. 223 § 8; 66 v. 162.] FORM OF CERTIFICATE OF ELECTION. Tyr Va slog bis , auditor of the city [or clerk of the village] Olea inecee ste State of Ohio, do hereby certify that at the election held in said city lor Village] ON .5..dseeeneeecee PPL Dias tug dase Cites © Sis aera ae Ste was duly elected Se Bie Pee of the said eity ‘Lor Village]. Of]. os cen aeec ous Witness my hand and official seal, this ........ GAY OF Feet. eis eas A Sec. 5115. [How returns made and canvassed in registra- tion cities.] In registration cities the returns of the election of municipal officers, members of boards of education or justices of the peace shall be made to the board of deputy state super- visors of the county in which such city is located, and canvassed by a board of canvassers, consisting of such board of deputy state supervisors and the city auditor. [97 v. 223 §8; 90 v. 61, 266; 89 v. 459. ] Treasurer. Sec. 2303. [Treasurers and sureties may be released.]* When a loss of public funds, entrusted to a county, city, village, township, or school district treasurer, by virtue of his office, heretofore or hereafter results from fire, robbery, burglary, or inability of a bank to refund public money lawfully in its posses- sion belonging to such public funds, the county commissioners, township trustees, a city or village council or a board of educa- tion, respectively, may release and discharge such treasurer and the sureties upon his official bond, from all liability to or de- § 2304 THE OHIO MUNICIPAL CODE. 1116 mands of such county, township, city, village or school district, for loss so created and arising. [99 v. 388 §1; 98 v. 120.] (1) See Op. Atty. Gen. (1915), pp. 794. Sec. 2304. [What finding necessary to release.] Before such release and discharge shall be effected, the board of county commissioners, township trustees, city or village council or board of education shall find that the treasurer was entrusted by law with the care of such public funds, and that the loss thereof was not occasioned by his fault or negligence, and an entry of such findings shall be made upon the record book of the proceedings of such council or board. [99 v. 388 §1; 98 v. 120.] Sec, 2305. [Appeal from findings.] Within five days after such finding of release and discharge is made, a taxpayer of such county, township, municipality or school district, may appeal therefrom to the common pleas court of the county. Until such appeal is finally determined, the finding and other proceedings shall not effect a release and discharge. Notice in writing of intention to appeal shall be filed with the clerk or auditor of the board or council making the findings within five days. Within thirty days after such finding, a transeript thereof and of the other proceedings shall be filed in the common pleas court and docketed as other cases. [99 v. 388 $1; 98 v. 120.] Sec. 2306. [Trial in common pleas court.] The common pleas court shall proceed to try and determine the question whether such public funds were lost by the fault or negligence of the treasurer. If it be found that the funds were so lost, the finding of the board or council ordering the discharge shall be vacated. If it be found that the funds were not so lost, the finding shall remain in full force and the court shall cause its judgment to be certified to the board or council making such finding. [99 v. 388 §1; 98 v. 120. | Sec. 2307. [Questions may be submitted to vote.] If the finding of such county commissioners, township trustees, city or village council or board of education, as the case may be, 1117 OFFICERS. - § 2308 has been made and entered on the record book of its proceed- ings, such board or council may, at the next ensuing general election to be held in the county, township, city, village or school district, submit to the qualified electors thereof, the ques- tion whether such treasurer and the sureties upon his official bond shall be discharged from lability on account of such loss of funds. [99 v. 388 §1; 98 v. 120.] Sec. 2308. [Electors may demand submission to vote.] If twenty-five per cent. of the qualified electors of such county, township, city, village or school district, petition the council or board thereof for the privilege of determining by ballot whether such treasurer and the sureties on his official bond shall be re- leased and discharged, such council or board shall submit the question to the qualified electors of the county, township, city, village or school district as herein provided. [99 v. 388 §1; 98 v. 120.] Sec. 2309. [Notice of election shall be given.] The deputy state supervisors of elections of the county, or within which such township, city, village or school district is located, shall cause notice of the submission of such proposition to the electors there- of. For the release of a county or city treasurer the notice shall be by publication in two newspapers of opposite politics in the county or city, for at least thirty days next prior to the date upon which the election is to be held. For the release of a village or township treasurer, twenty days’ notice of the election shall be given by posting notices thereof in five public places within such village or township. For the release of a school treasurer, ten days’ notice of such election shall be given by posting notice thereof in five public places in the school district. [98 v. 122 § 2.] Sec. 2310. [Form of ballot.] The ballots for such election shall have printed thereon ‘‘Discharge of treasurer and sureties —yes.’’ ‘‘Discharge of treasurer and sureties—no.’’ Such ballot shall have a place at the left of each proposition for the voter to mark according to law, the proposition he favors. [98 v. 122 § 3.] § 2311 THE OHIO MUNICIPAL CODE. Sec. 2311. [Proceedings on result of election.] If a ma- jority of the votes cast upon such proposition at the election are in favor of the discharge of such treasurer and his sureties, the county commissioners, township trustees, city or village council or board of education, as the case may be, shall cause the result of the election to be entered in the record book of its proceed- ings ordering such election, and thereupon shall release and discharge such treasurer and his sureties on his official bond from all liability on account of such loss. If a majority of the votes cast are against the discharge, the result of the election shall be made in the record book of proceedings of the council or board, and no further action therein shall be taken by such council or board. [98 v. 122 § 4.] 1118 County Auditor. Sec. 2602. [Accounts with townships, cities, villages, and special school districts.] The auditor’ shall open an account with each township, city, village, and special school district in the county, in which, immediately after his semi-annual settle- ment with the treasurer in February and August of each year, he shall credit each with the net amount so collected for its use. On application of the township, city, village, or school treas- urer the auditor shall give him a warrant on the county treas- urer, for the amount then due to such treasurer, and charge him with the amount of the warrant but the person so applying for such warrant shall deposit with the auditor a certificate from the clerk of the township, city, village, or district, stating that he is treasurer thereof, was duly elected or appointed, and that he has given bond according to law.2 [R. S. Sec. 1047; 56 v. 128 § 22; (S. & C. 100).] (1) auditor. This refers to county (2) Mandamus to compel treasurer to pay over money, may be allowed, where treasurer re- fuses, upon presentation of the proper orders, 16.0) S238. Old section 1047 R. S. (now 2602 G. C.) cited, Brown v. Van Wert, 4°05 CP407,°422. Cass Tp. v. Dillon, Sec. 2604. [Annual return to auditor of state of live stock statistics.] On or before the first day of July each year, the 1119 OFFICERS, § 2689 auditor shall make and transmit to the auditor of state an abstract of the number of horses, neat cattle, sheep, hogs, mules, and asses in the county, as returned to his office by the assessors. On or before the first day of October each year, he shall transmit to the auditor of state a complete abstract of the funded and un- funded indebtedness of his county, and of each township, city, village, and school district therein as it was on the first day of September preceding, with the rate of interest payable thereon, the date of-maturity, and the purpose for which it was created, and also what provision has been made for the payment of any such indebtedness, what amount has been collected, and whether remaining in the county, township, city, village, or school district treasury. To enable the county auditor to make this statement, the various officers of townships, cities, villages and school districts shall furnish him with the information thereof, at such time and in such manner as he requires, and he shall furnish them blanks for that purpose. [R. S. Sec. 1049; 70 v. 251 §§ 1, 2, 3; 66 v. 26 § 2.] Sec. 2689. [Payment of proceeds of special tax levy to ~ local treasurers.] Immediately after each semi-annual settle- ment with the county auditor, on demand, and presentation of the warrant of the county auditor therefor, the county treasurer shall pay to the township treasurer, city or vil- lage treasurer, the treasurer of the school district, or the treasurer of any legally constituted board authorized by law to receive the funds or proceeds of any special tax levy, or other properly designated officers delegated with author- ity to receive such funds or proceeds by such boards and sub- divisions, all moneys in the county treasury belonging to such boards and sub-divisions.t [110 v. 408; 108 vy. 1192; 108 v. 561; R. S. Sec. 1122; 86 v. 168; 56 v. 101.] (1) See § 4301 in Part I. Sec. 2690. [Money may remain in county treasury.] If a township treasurer or other proper officer so requires, or the trustees of a township, the council of a city, village, or the board of education of a school district, respectively, so direct, such moneys shall remain in the county treasury, to be drawn § 2691 THE OHIO MUNICIPAL CODE. 1120 by the proper treasurer on the warrant of the county auditor, in sums of not less than one hundred dollars. [R. S. See. 1122; 86 v. 168; 56 v. 101.] Sec. 2691. [Moneys shall not be held without authority.] If a county treasurer retains, or if such local treasurer permits such moneys to remain in the county treasury, in any manner other than herein provided, he shall forfeit and pay for such offense not less than one hundred nor more than one thousand dollars, to be recovered in an action at the suit of the state, for the use of the county. [R. S. Sec. 1122; 86 v. 168; 56 v. 101.] Sec. 2692. [Advance payments to local authorities.] When the local authorities so request,’ the county auditor may draw, and the county treasurer shall pay on such draft to township, city and village treasurers, and the treasurer of any board of education, from June twentieth and December twentieth to the date of the semi-annual distribution, each year, any sum not exceeding two-thirds of the current collection of taxes for such local authorities, respectively, including, as to boards of edu- cation, the estimated distribution of the state common schoo) fund and the levy for school purposes retained in the county, to become due to the school district, in advance of the semi- annual settlements. [108 v. 1803; R. S. See. 1123; 97 v. 378; 86 v. 43; 70 v. 184.] (1) Demand upon county audi- Advance of taxes, when not al- tor and treasurer for advance pay- lowed. See Op. Atty. Gen. (1923) ment of municipal taxes must be No. 1050. made by city treasurer... Op. Atty. Gen. (1914), p. 1290. Sec. 4763. [Treasurer of the school funds.] In each city school district, the treasurer of the city funds shall be the treasurer of the school funds. In all exempted village, village and rural school districts which do not provide legal deposi- tories as provided in sections 7604 to 7608 inclusive, the coun- ty treasurer shall be the treasurer of the school funds of such districts. [109 v. 552; 104 v. 158; R. S. See. 4042; 97 v. 367; 85 v. 102, 193; 70 v..24, § 44.] 1121 OFFICERS. § 7965 Sealer of Weights and Measures. Sec. 7965. [State sealer; duties.] The secretary of agri- culture shall be state sealer, and shall make, promulgate and enforce such rules and regulations as may be necessary to the prompt and effective enforcement of the weights and measures laws of this state. The standards of weights and measures adopted by the state shall be deposited in a suit- able room at Columbus, and be kept in suitable cases, to be opened only for the purpose of comparing them with such standards and copies which by law are furnished for the use of the several counties or villages unless by joint resolution of the general assembly, or upon a call of either house for information, or by order of the governor for scientific pur- poses. The secretary of agriculture shall, upon the passage of this act, and once every three years thereafter, require each county auditor and city or village sealer, in this state, to present all standards of weights and measures in their possession to him for comparison with the standards adopted by the state, and he shall condemn and destroy all of such standards as do not conform with the standards adopted by the state. Hach county auditor and each city and village sealer shall be required to procure copies of all the origina! standards adopted by the state named in section 7966 of the General Code, except such standards now in their possession as the secretary of agriculture shall find to conform with the ' standards adopted by the state. It shall be the duty of the secretary of agriculture to advise and assist all county, city and village sealers, and generally be charged with the en- forcement of all laws relating to weights and measures, and in the performance of such duties it may use the service of any person employed in his department. The secretary of agriculture or any person employed by him for that purpose may try and prove any weights, measures, balance, and any other weighing or measuring device, or request from any person, and when the same are found or made to conform to the state standards shall cause the same to be sealed and marked, as provided in section 2616 of the General Code. [107 v. 460, 491; 106 v. 143; 103 v. 304; 103 v. 71.] § 7968 THE OHIO MUNICIPAL CODE. 1122 Sec. 7968. [Like copies to be furnished to cities and vil- lages.] The state sealer shall furnish like copies of the orig- inal standards to the sealer of any city or village upon applica- tion therefor, and payment of the cost thereof, by such city or village [R. S. See. 145; 58 v. 78 §9; (S. & S. 924).] (1) Application of section.— § 7965 provides for the deposit and safe keeping of standards of weights and measures adopted by the state. § 7966 requires copies of the orig- inal standards for each county of the state to be delivered to the county auditors. Appointment of sealers or in= spectors of weights and measures by municipalities was held to be authorized by a section such as this; and incident to the creation of the office, the municipalities would have power to prescribe du- ties of such officers. Huddleson v. Ruffin, 6 O. S. 604. See § 3651 in Part I. Fire and Police Officers. Sec. 824. [Investigation of cause of fire.] The state fire marshal, the chief! of the fire department of each city or vil- lage in which a fire department is established, the mayor of each incorporated village in which no fire department exists, and the township clerk of each organized township without the limits of a village or city, shall investigate the cause, ori- gin and circumstances of each fire occurring in such city, village or township by which property has been destroyed or damaged, and shall make an investigation to determine whether the fire was the result of carelessness or design. The investigation shall be commenced within two days, not in- cluding Sunday, if the fire occurred on that day, and the state fire marshal may superintend and direct the investiga- tion if he deems it necessary. [R. S. Sec. 409-51; 94 v. 387; 95 v. 472.] buildings for inspection. Op. Atty. Gen. (1917), p. 1153. (1) Chief has authority to enter Sec. 825. [Report of fires.] The officer making an inves- tigation of a fire occurring in a city, village or township, shall forthwith notify the state fire marshal, and within one week of the occurrence of the fire shall furnish him a written statement of all facts relating to its cause and origin, and such other infor- 1123 OFFICERS, § 826 mation as is required by forms provided by the state fire marshal. [R.S. Sec. 409-51; 94 v. 387; 95 v. 472.] Sec. 826. [Penalty for official neglect.] An officer named in the last two preceding sections who neglects to comply with any requirement of this chapter, shall be fined not less than twenty-five dollars nor more than two hundred dollars. [R. S. See. 409-55; 94 v. 388; 95 v. 474.] Sec, 834. [Examination of structures or premises.] The state fire marshal, his deputies and subordinates, the chief of the fire department of each city or village where a fire depart- ment is established, the mayor of a city or village where no fire department exists, or the clerk of a township in territory with- out the limits of a city or village, at all reasonable hours may enter into all buildings and upon all premises within their jurisdiction for the purpose of examination. [R. S. Sec. 409-54; 94 v. 388; 95 v. 473.] Sec. 835, [Further duties of state fire marshal.] If the state fire marshal, a deputy state fire marshal, or assistant fire marshal, or any officer mentioned in the preceding sec- tion, upon an examination or inspection finds a building or other structure, which for want of proper repair, by reason of age and dilapidated condition, defective or poorly installed electrical wiring and equipment, defective chimneys, defective gas connections, defective heating apparatus, or for any other cause or reason is especially lable to fire and which building or structure is so situated as to endanger other buildings or property, such officer shall order such building or buildings to be repaired, torn down, demolished, materials removed and all dangerous conditions remedied. If such officer finds in a building or upon any premises any combustible or explosive material, rubbish, rags, waste, oils, gasoline or inflammable conditions of any kind, dangerous to the safety of such build- ings or premises, buildings or property, he shall order such materials removed or conditions remedied. Such order shall be made against and served personally or by registered letter upon the owner, lessee, agent, or occupant of such building or premises, and thereupon such order shall be complied with by § 836-2 THE OHIO MUNICIPAL CODE. 1124 the owner, lessee, agent or occupant and within the time fixed in said order.* [102 v. 480; R. S. See. 409-54; 95 v. 473; 94 v. 388. | (1) Appeal from order.— Section 836-1 provides for appeal Section 836 G. C. provides for ap- from the decision of the state fire peal to the state fire marshal, and marshal to the probate court. Sec. 836-2. [Effect of failure to comply with order.] If any person fail to comply with an order of an officer under the last three preceding sections and within the time fixed, then such officer is empowered and authorized to cause such building or premises to be repaired, torn down, demolished, materials removed and all dangerous conditions remedied, as the case may be and at the expense of such person, and if such person within thirty days thereafter fail, neglect or refuse to repay said officer the expense thereby incurred by him, such officer shall certify said expenses, together with twenty-five percentum penalty thereon to the county auditor of the county in which said property is situate and said county auditor shall enter said expense on the tax duplicates of said county as a special charge against the real estate on which said building is or was situate and the same shall be collected as other taxes and — when collected, shall together with the penalty thereon be refunded to such officer. [102 v. 430.] Sec. 837. [Penalty.] Any person or persons, being the owner, occupant, lessee or agent of buildings or premises who wilfully fails, neglects or refuses to comply with any order of any officer named in the last four preceding sections, shall be guilty of a misdemeanor and shall be fined not more than fifty dollars nor less than ten dollars for each day’s neglect. [102 v. 482; R. S. See. 409-54; 95 v. 473; 94 v. 388.] Sec. 3024. [No witness fees to policeman in cases specified. ] No watchman or other police officer is entitled to witness fees in a cause prosecuted under a criminal law of the state, or an ordinance of a city before a police judge or mayor of such city, justice of the peace, or other officer having jurisdiction in such causes. [R. 8. See. 1315; 56 v. 22 §1; (S. & C. 647).] 1125 OFFICERS. N 12860 Sec. 12860. [Impersonating an officer.] Whoever, not a member of a regularly organized municipal police department, a legally elected public official or commissioned by the proper legal authority, falsely represents himself to be a police officer, sheriff, deputy sheriff or constable, or, being any person not a member of a municipal police department, for the purpose of such false representation, wears a uniform or part thereof similar to the uniform worn by a member of a municipal police department shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned in the workhouse not less than thirty days nor more than six months, or both. [R. 8. Sec. 69138a; 97 v. 319.] Sec. 12937. [Policeman failing to deposit stolen property. ] Whoever, being an officer, patrolman, or other member of the police force in a municipal corporation, neglects or refuses to deposit, in the place designated by the mayor thereof, property taken or found by him in possession of a person arrested, shall be fined not more than three thousand dollars nor less than twice the value of the property, or imprisoned in the county jail not more than one month, or both. Such sentence shall vacate the office of the person so sentenced. [R. S. Sec. 6858-2; 98 v. 60.] Sec. 13492. [Who may arrest.] A sheriff, deputy sheriff, constable, marshal, deputy marshal, watchman or police officer, shall arrest and detain a person found violating a law of this state, or an ordinance of a city or village, until a warrant can be obtained. [R. 8S. Sec. 7129; 74 v. 317 §1; 66 v. 291 § 21.] (1) Arrest without warrant, When not justifiedi—A police when justified, Wolf v. State, 19 O. S. 248; Ballard v. State, 43 O. S. 340; State v. Lewis, 50 O. S. 179; Raitz v. Green, 13 C. C. 455; Britton v. Granger, 13 C. C. 281; Ringland v. Grannan, 31 OC. C. 587; 12 C. C. (N. S.) 255; Kendall v. Scheve, 3 C. C. 526; Murray v. State, 6 N. P. (N. S.) 155; Erie Ry. Co, v. Reigherd, 166 Fed. 247; Dunning v. Cincinnati, 21 N. P. (N. 8.) 468. officer is not authorized to arrest without warrant a person pass- ing peaceably along a highway, without any knowledge or reliable information, though in fact as, afterwards discovered, concealed weapons were found on the per- son so arrested. Rasey, et al., v. Ci¢ecolino; TSMC Ce UNe Ss!) oe Le Defenses to charge of false arrest, see Wolf v. State, 19 O. S. 248; Reinhart v. City, 49 O. S. § 13492 257, 266; State v. Pate, 7, N. P. 543. Village officials are not liable to respond in damages for false imprisonment because of the al- leged infirmity of the ordinance under which the arrest was made, where they acted in good faith and with an honest belief in its validity. Middletown v. Bloom- dale, 26 C. C. (N. 8S.) 565. City is not liable for the action of a police officer in making an arrest under a state law. Burwell v. Columbus, 32 O. C. A. 96. Authority of council to au- thorize arrest, see White v. Kent, 11 O. S. 550. Notice of official character of person making arrest and charge upon which made, when necessary, see Wolf v. State, 19 O. S. 248. Use of force.—Right of officer to use force in making arrest, and THE OHIO MUNICIPAL CODE. 1126 resistance, see Wolf v. State, 19 O. S. 248; State v. Pate, 7 N. P. 543; Ringland v. Grannan, 31 C. C. 587; 12 C. C. (N.8.) 255. 3 Right to search.—A police offi- cer has no authority to search a person passing peaceably along a highway of a municipality until he has placed such person under arrest, and the circumstances must be such as to give reasonabie and probable grounds to justify such arrest. Rasey v. Ciccolino, 18 C. C.\ CN. Baal. Completed offenses. — Arrest without warrant illegal when of- fense has been completed and was not committed in presence of offi- cer. Hopper v. Mabley, 14 Dec. 236, 237. Marshal.—Power of marshal of municipal corporation to make ar- rest without warrant, see § 4386 and: Ballard v. State, 43 O. S. 340. HOS. CIVIL SERVICE.’ Sec. 486-1. [Definitions]: 1. The term ‘‘civil service’’ includes all offices and posi- tions of trust or employment in the service of the state and the counties, cities and city school districts thereof. 2. The ‘‘state service’’ shall include all such offices and positions in the service of the state or the counties thereof, except the cities and city school districts. 3. The term ‘‘classified service’’ signifies the competitive classified civil service of the state, the several counties, cities and city school districts thereof. 4. The term ‘‘state commission’’ signifies the state civil service commission of Ohio. 5. The term ‘‘municipal commission’ pal civil service commission of a city. 6. The term ‘‘appointing authority’’ signifies the officer, commission, board, or body having the power of appoint- ment to or removal from positions in any office, department, commission, board or institution. 7. The term ‘‘commission’’ shall signify either the state ? signifies the munici- i. civil service commission of Ohio or the civil service commis- sion of any municipality. 8. The term ‘‘employe’’ or ‘‘subordinate’’ signifies any person holding a position subject to appointment, removal, promotion or reduction by an appointing officer. [106 v. 400; 103 v. 698, § 1.] (1) Terms of incumbents— _ ex. rel.. v. Schneller, 15 N. P. This and the succeeding sections relating to Civil Service, do not repeal existing statutes which fix the terms of certain officials; nor do they extend such terms. State, (N. 8.) 438. Civil Service does not apply to villages and village school dis- tricts. Op. Atty. Gen. (1916), p. 1186. 1127 § 486-2 THE OHIO MUNICIPAL CODE. 1128 Sec. 486-2. [Method of appointment.] On and after the taking effect of this act, appointments to and promotions in the civil service of the state, the several counties, cities . and city school districts thereof, shall be made only accord- ing to merit and fitness to be ascertained as far as practicable by competitive examination; and thereafter no person shal! be appointed, removed, transferred, laid off, suspended, rein- stated, promoted or reduced as an officer or employe in the civil service of the state, the several counties, cities and city school districts thereof, in any manner or by any means other than those prescribed in this act or by the rules of the state or municipal civil service commissions within their re- spective jurisdictions as herein provided. [106 v. 400; 103 v. 698, § 2.] Sec. 486-3. [Commissioners.]' After this act goes into effect the governor shall appoint, by and with the ad- vice and consent of the senate, two persons of recognized character and ability to serve, one for two years and one for four years, as civil service commissioners, who shall con- stitute the state civil service commission of Ohio. Upon the expiration of the term of office of each commissioner so ap- pointed, his successor shall be appointed by the governor to serve for a period of four years from the date of his ap- pointment and until a successor is appointed and qualified. A vacaney in the office of commissioner shall be filled by the governor for the remainder of the unexpired term. The governor may remove any member of the state civil service commission at any time for inefficiency, neglect of duty, or malfeasance in office, having first given to the com- missioner a copy of the charges against him and an oppor- tunity to be publicly heard in person or by counsel in his own defense, and any such act or removal by the governor shall be final. A statement of the findings of the governor, the reasons for his action, and the answer, if any, of the commissioner, shall be filed by the governor with the secre- tary of state and shall be open to public inspection. At the time of any appointment both commissioners shall not be adherents of the same political party. No commissioner shall hold any other office of profit or 1129 CIVIL SERVICE. § 486-4 trust under the government of the United States, the state of Ohio, or any political subdivision thereof. [106 v. 400, 401; 103 v. 698, § 3.] (1) Right to hold another office commissioner. Op. Atty. Gen. in addition to that of civil service (1914), p. 404. e Sec. 486-4. [Salaries and expenses.] Each commissioner shall devote his entire time to the duties of his office and shall receive an annual salary of four thousand dollars, and his necessary traveling expenses incurred in the discharge of his official duties. [106 v. 400, 401; 103 v. 698, § 4.] Sec. 486-5.. [Organization and expenses.] The governor at the time of the appointment of the commission, or mem- ber thereof, shall designate one of its members as chairman. The commission shall appoint, from an eligible list to be pre- pared by said commission, within thirty days after its ap- pointment, a secretary who shall be ex-officio chief examiner, whose duty it shall be, under the direction of the commission, to keep minutes of the proceedings of the commission, pre- serve all reports made to the commission, keep the records of all examinations, superintend the examinations, and per- form such other and further duties as the commission shall prescribe. The salary of the secretary shall be not to exceed thirty-six hundred dollars per annum, to be fixed by the commission. Two members of the commission shall constitute a quo- rum for the transaction of business. The commission may also appoint such examiners, inspec- tors, clerks and other assistants as may be necessary to carry out the provisions of this act, and fix their salaries within the limits of the appropriation made by the general assembly for that purpose. The commission may designate persons in or out of the official service of the state to serve aS examiners or assistants under its direction. Hach such person shall receive such compensation for each day actually and necessarily spent in the discharge of his duties as ex- aminer or assistant as shall be determined by the commis- sion; provided, however, that if any such examiner or as- § 486-6 THE OHIO MUNICIPAL CODE. 1130 sistant is in the official service of the state, or any political subdivision thereof, it shall be a part of his official duties to render such services in connection with such examina- tions, without extra compensation. The secretary, examiners, inspectors, clerks and assistants shall, in addition to their salaries, receive such necessary traveling and other expenses as are incurred in the actual discharge of their official duties. The commission may also incur the necessary expenses for stationery, printing and other supplies incident to the busi- ness of the department. All salaries and expenses shall be approved and allowed by the commission and paid out of the treasury of the state on the warrant of the auditor, in the same manner as the salaries and expenses of other state officers are paid. [106 v. 400, 402; 103 v. 698, § 5.] Sec. 486-6. [Rooms and accommodations.] The state com- mission shall maintain suitable offices in the city of Colum- bus; and it shall be the duty of the officers of the state, or any political subdivision thereof, at any place where examina- tions are directed to be held by the commission, to allow the reasonable use of public buildings and rooms and to furnish the same with heat and light, for holding such examinations, and in all proper ways to facilitate the work of the commis- sion in carrying out the provisions of this act. [106 v. 400, 402; 103 v. 698, § 6.] Sec. 486-7. [Powers and duties.] The commission shall, First: Prescribe, amend and enforce administrative rules for the purpose of carrying out and making effectual the _ provisions of this act. Second: Keep minutes of its own proceedings and records of its examinations and other official actions. All such rec- ords, except recommendations of former employers, shall be open to public inspection under reasonable regulations; pro- vided, however, that the governor or any person designated by him, may, for the purpose of investigation, have free ac- cess to all such records, whenever he has reason to believe that the provisions of this act or the administrative rules of the commission prescribed thereunder, are being violated. Third: The commission shall prepare, continue and keep 1131 CIVIL SERVICE. § 486-7 in its office, a complete roster of all persons in the classi- fied service. This roster shall be open to public inspection at all reasonable hours. It shall show in reference to each of such persons, his name, address, the date of his appoint- ment to or employment in such service, his salary or com- pensation, the title of the place or office which he holds, the nature of the duties thereof, and, in case of his removal or resignation, the date of the termination of such service. Fourth: Make investigations, either sitting in bane or through a single commissioner or the chief examiner, con- cerning all matters touching the enforcement and effect of the provisions of this act and the administrative rules of the commission prescribed thereunder.? In the course of such in- vestigations each commissioner and the chief examiner shall have the power to administer oaths and affirmations and to take testimony relative to any matter which the commission has authority to investigate. Fifth: Have the power to subpoena and require the at- tendance and testimony of witnesses* and the production thereby of books, papers, public records and other docu- mentary evidence pertinent to the investigations, inquiries, or hearings on appeal from the action or decision of an ap- pointing officer as is herein authorized, and to examine them as it may require in relation to any matter which it has authority to investigate, inquire into or hear. Fees shall be allowed to witnesses, and on their certificate, duly audited, shall be paid by the state treasurer, or in the case of mu- nicipal commissions by the county treasurer, for attendance and traveling, as is provided in section 3012 of the General Code for witnesses in courts of record. All officers in the civil service of the state or any of the political subdivisions thereof and their deputies, clerks, subordinates and employes shall attend and testify when summoned so to do by the commission. Depositions of witnesses may be taken by the commission in the manner prescribed by law for like deposi- tions in civil actions in the courts of common pleas. In ease any person, in disobedience to any subpoena issued by the commission, or any of them, or their chief examiner, fails or refuses to attend and testify to any matter regarding § 486-7 THE OHIO MUNICIPAL CODE. 1132 which he may be lawfully interrogated, or produce any docu. mentary evidence pertinent to any investigation, inquiry or hearing, it shall be the duty of the court of common pleas of any county, or any judge thereof, where such disobedi- ence, failure or refusal occurs, upon application of the state commission, or a municipal commission, or any commissioner thereof, or their chief examiner, to compel obedience by at- tachment proceedings for contempt as in the case of disobe- dience of the requirements of a subpoena issued from such courts or a refusal to testify therein; Sixth: Hear appeals from the decisions of appointing offi- cers of persons in the classified service who have been re- duced in pay or position, laid off, suspended, discharged or discriminated against by such appointing authority ; Seventh: Make a report to the governor annually, on or before the first day of January of each year, showing its own actions, the rules and all exceptions thereto in force, and any recommendations for the more. effectual accomplishment of the purposes of this act. The commission shall also fur- nish any special reports to the governor whenever the same are requested by him. Such reports shall be printed for public distribution, under the same regulations as are the reports of other state officers, boards or commissions. [106 v. 400, 403; 103 v. 698, §7; compare G. C. 4488, 4486, 4492, 4493, 4494, repealed, 103 v. 698, 713.] (1) Validity.—The provision of the civil service act which em- powers the commission to pre- scribe, amend and enforce rules for carrying the act into effect, which rules have the force and effect of law, is not a delegation of the power to make laws, but of administrative powers and duties for the making of this particular act effective. Green v. Commission, 15 N. P. (N. 8.) 385; aff’d Green v. Commission, 90 O. 8. 252. (2) Investigation of Mayor.— This act does not confer power to investigate the act and con- duct of a Mayor of a City, with reference to the enforcement by him of that enactment. Green v. Commission, 90 O. 8. 252. (3) Authority to procure the attendance of witnesses and to issue process therefor is con- ferred only upon state and muni- cipal civil service commissions; Witnesses so summoned paid, how. Op. Atty. Gen. (1916), p. 7O1. Civil service commission may not punish witnesses for con- tempt; it must appeal to com- mon pleas court. Op. Atty. Gen. (1916), p.° 307. Fees of witnesses subpoenaed in 1133 CIVIL SERVICE. § 486-8 hearing before civil service com- County Treasury. Op. Atty. Gen. mission are payable out of (1916), p. 924. Sec. 486-8. [Service—classified and unclassified defined.] The civil service of the state of Ohio and the several counties, cities and city school districts thereof shall be divided into the unclassified service and the classified service. (a) The unclassified service shall comprise the following positions which shall not be included in the classified service, and which shall be exempt from all examinations required in Pisteaet.'shaiy 1. All officers elected by popular vote or persons ap- pointed to fill vacancies in such offices. 2. All election officers and the employes and clerks of persons appointed by boards of deputy supervisors and _ in- spectors of elections. 3. The members of all boards and commissions and heads of principal departments, boards and commission appointed by the governor or by and with his consent; and the mem- bers of all boards and commissions and all heads of depart- ments appointed by the mayor, or if there be no mayor such other similar chief appointing authority of any city or city school district. Provided, however, that nothing contained in this act shall exempt the chiefs of police departments and chiefs of fire departments of municipalities from the com- petitive classified service as provided in this act. 4. The members of county or district licensing boards or commissions, and boards of revision and assistant assessors. 5. All officers and employes elected or appointed by either or both branches of the general assembly, and such employes of the city council as are engaged in legislative duties, 6. All commissioned, non-commissioned officers and en- listed men in the military service of the state including mili- tary appointees in the offices of the adjutant-general. 7. All presidents, directors, superintendents, principals, instructors and teachers connected with the public school system, colleges and universities; and the library staff of any library in the state supported wholly or in part at publie expense. 8. Three secretaries, assistants' or clerks and one per- § 486-8 THE OHIO MUNICIPAL CODE. "1134 sonal stenographer for each of the elective state officers; and two secretaries, assistant or clerks and one personal stenog- rapher for other elective officers and each of the principal appointive executive officers, boards or commissions, except civil service commissions, authorized by law to appoint such secretary, assistant or clerk and stenographer. 9. The deputies of elective or principal executive officers authorized by law to act for and in the place of their prin- cipals and holding a fiduciary relation to such principals. 10. Bailiffs, constables, official stenographers and com- missioners of courts of record, and such officers and em- ployes of courts of record as the commission may find it im- practicable to determine their fitness by competitive exami- nation. , 11. Assistants to the attorney-general, special counsel ap- pointed or employed by the attorney-general, assistants to county prosecuting attorneys and assistants to city solicitors. 12. Such teachers and employes in the agricultural experi- ment stations; such teachers in the benevolent, penal or re- formatory institutions of the state; such student employes in normal schools, colleges and universities of the state; and such unskilled labor positions as the state commission or any municipal commission may find it impracticable to include in the competitive classified service; provided, that such ex- emptions shall be, by order of the commission, duly entered on the record of the commission with the reasons for each such exemption. (b) The classified service shall comprise all persons in the employ of the state, the several counties, cities and city school districts thereof, not specifically included in the un- classified service, to be designated as the competitive class and the unskilled labor class. 1. The competitive class shall inelude all positions and employments now existing or hereafter created in the state, the counties, cities and city school districts thereof, for which it is practicable to determine the merit and fitness of applicants by competitive examinations.? Appointments shall be made to, or employment shall be given in, all positions in the competitive class that are not filled by promotion, rein- 1135 CIVIL SERVICE. § 486-9 statement, transfer or reduction, as provided in this act, and the rules of the commission, by appointment from those cer- tified to the appointing officer in accordance with the pro- visions of this act. 2. The unskilled labor class shall include ordinary un- skilled laborers. Vacancies in the labor class shall be filled by appointment from lists of applicants registered by the commission. The commission shall in its rules require an applicant. for registration in the labor class to furnish such evidence or take such tests as it may deem proper with re- spect to age, residence, physical condition, ability to labor, honesty, sobriety, industry, capacity and experience in the work or employment for which he applies. Laborers who fulfill the requirements shall be placed on the eligible list for the kind of labor or employment sought and preference shall be given in employment in accordance with the rating received from such evidence or in such tests. Upon the re- quest of an appointing officer, stating the kind of labor needed, the pay and probable length of employment, and the number to be employed, the commission shall certify from the highest on the list, double the number to be em- ployed, from which the appointing officer shall appoint the number actually needed for the particular, work. In the event of more than one applicant receiving the same rating, priority in time of application shall determine the order in which their names shall be certified for appointment. [106 v. 400, 404; 103 v. 698, §8; compare G. C. 4479, repealed 103 v. 698, 713.] (1) Who is an ‘‘assistant’’ in vice and the Department of Pub- contemplation of this section. lic Safety are within classified Op. Atty. Gen. (1916), p. 201. service as herein defined. Op. (2) Heads of sub-departments Atty. Gen. (1915), p. 2481. of the Department of Public Ser- Sec. 486-9. [Rules and classification.] As soon as prac- ticable after the taking effect of this act, the commission shall put into effect rules for the classification of offices, positions and employments, in the civil service of the state and the several counties thereof; for appointment, promotions, trans- fers, lay-offs, suspensions, reductions, reinstatements and re- § 486-10 THE OHIO MUNICIPAL CODE. 1136 movals therein and examinations and registrations therefor; and for’ maintaining and keeping records of the efficiency of officers and empioyes in accordance with the provisions of this act. Due notice of the contents of such rules and of all changes therein shall be given to appointing officers af- fected thereby, and such rules shall also be printed for pub- lic distribution: provided, however, that until such rules are adopted and in force, the rules existing when this law takes effect shall continue in force. [106 v. 400, 406; 103 v. 698, §9; compare G. C. § 4486, repealed 103 v. 698, 713.] Sec. 486-10. [Examinations; exception as to soldiers, sail- ors and nurses.] All applicants for positions and places in the classified service shall be subject to examination which shall be public, competitive and free for all, within certain limitations, to be determined by the commission, as to citi- zenship, residence, age, sex, experience, health, habits and moral character; provided, however, that any soldier, sailor, marine or Red Cross nurse who has served in the army or navy or hospital service in the United States in the war of the Rebellion, the war with Spain, or the war with the Cen- tral Powers of Europe who has been honorably discharged therefrom and js a resident of Ohio, may file with the civil service commission a certificate of service and honorable dis- charge, whereupon his name shall be placed upon an eligible list by the commission, from which eligible list he may be ap- pointed to any position in the civil service of the state which such appointing power may deem him qualified to fill.* Such examinations shall be practical in character and shall relate directly to those matters which will fairly test the relative capacity of the person examined to discharge the particular duties of the position for which appointment is sought, and shall, when appropriate, include tests of physical qualifica- tions, health and manual skill. [Notice of time and place of examination.] The state com- mission shall have control of all examinations, except as otherwise provided in this act. No questions in any examina- tion shall relate to political or religious opinions or affilia- tions. Reasonable notice of the time and place and general CIVIL SERVICE. 1137 § 486-11 scope of every competitive examination for appointment to a position in the civil service, except as otherwise provided for in this act, shall be given by the commission. Written or printed notices of every examination for the state classified service shall be sent by the commission to the county clerk of each county in the state, and to the city clerk of each mu- nicipality of the state, and such notices, promptly upon re- ceipt by them, shall be posted in conspicuous public places in the court house of the county and in the city hall of the municipality, respectively. Such notices shall also be posted in a conspicuous place in the office of the commission for at least two weeks before any examination. In case of exami- nations limited by the commission to a district, county or city, the commission shall provide in its rules for adequate publicity of such examinations in the district, county or city, within which competition is permitted. [108 v. 1198; 106 v. 400; 103 v. 698; compare G. C. § 4480, repealed 103 v. 698, 713.] (1) Examination and_ eligible list—The civil service commis- sion may refuse to admit to ex- amination an applicant who lacks the established requirements, and authority to fix by ordinance the qualifications which shall be re- quired of applicants for any office or position in the competitive ser- vice in the respect specified by after examination may refuse to certify one who has passed the examination but has thereafter been found lacking; but the com- mission has no authority to re- move from the eligible list names which have been certified for appointment in answer to the requisition of an appointing offi- cer. Tiernan v. Cincinnati, 18 Nope s CN. (S.) tele: Council cannot fix qualifications. —A municipal council has no Sec. 486-11. the statute, and determination of the amount of experience which shall be required of such appli- cants is specifically conferred on the civil service commission. Tiernan v. Cincinnati, 18 N. P. CN. Su) 145. This section is applicable to both state and municipal commis- sioners. Eligibility of soldiers and sailors. See Op. Atty. Gen., Aug. 12, 1921. [Applications.] The commission shall require persons applying for admission to any examination, pro- vided for by this act or by the rules of the commission pre- scribed thereunder, to file with the commission within a rea- sonable time prior to the proposed examination a formal ap- § 486-11 THE OHIO MUNICIPAL CODE. 1138 plication in which the applicant shall state under oath or af- firmation: (1) Full name, residence and postoffice address. (2) Nationality, age and place and date of birth. (3) Health and physical capacity for the public service sought. (4) Business and employments and residences for five previous years. } (5) Such other information as may be reasonably re- quired touching the applicant’s merit and fitness for the public service sought; but no inquiry shall be made as to any religious or political opinions or affiliations of the ap- plicant. No fee or other assessment shall be charged for examina- tion for positions, provided for by this act or by the rules of the commission prescribed thereunder, where the annual salary does not exceed six hundred dollars; for positions where the annual salary exceeds six hundred dollars and is less than one thousand dollars, an examination fee of fifty cents shall be charged; for positions where the annual salary is one thousand dollars or more, an examination fee of one dollar shall be charged. All fees collected under the pro- visions of this act shall be paid into the state treasury to the credit of the general revenue fund, or in the case of cities into the city treasury. Blank forms for applications shall be furnished by the commission without charge to any persons requesting the same. The commission may require in connection with such application such certificate of persons having knowledge of the applicant as the good of the service may demand. The commission may refuse to examine an applicant, or after an examination to certify an eligible, who is found to lack any of the established preliminary requirements for the examina- tion or who is physically so disabled as to be rendered unfit for the performance of the duties of the position which he seeks, or who is addicted to the habitual use of intoxicating liquors or drugs to excess, or who has been guilty of any crime or of infamous or notoriously disgraceful conduct, or who has been dismissed from either branch of the civil ser- 1139 CIVIL SERVICE. § 486-12 vice for delinquency or misconduct, or who has made false statements of any material fact, or practiced, or attempted to practice, any deception or fraud in his application or in his examination, in establishing his eligibility or securng his appointment. [106 v. 400, 407; 103 v. 698, § 11.] Sec. 486-12. [Eligible lists.] From the returns of the ex- aminations the commission shall prepare an eligible lst of the persons whose general average standing upon examina- tions for such grade or class is not less than the minimum fixed by the rules of the commission and who are otherwise eligible; and such persons shall take rank upon the eligible list as candidates in the order of their relative excellence as determined: by the examination without reference to priority of time of examination. In the event of two or more ap- plicants receiving the same mark in an examination, priority in the time of application shall determine the order in which their names shall be placed on the eligible list. The term of eligibility of each list shall be fixed by the commission at not less than one year nor more than two years. When an eligi- ble list is reduced to three names or less a new list shall be prepared. [106 v. 400, 407; 103 v. 698, § 12; compare G. C. § 4481, repealed 103 v. 698, 713.] Sec. 486-13. [Appointments.]' The head of a department, officer or institution in which a position in the classified set- vice is to be filled shall notify the commission of the fact, and the commission shall, except as provided in sections 486- 14 and 486-15 of the General Code, certify to the appointing officer thereof the names and addresses of the three candi- dates standing highest on the eligible list for the class or grade to which said position belongs. In the event that an eligible list becomes exhausted, through inadvertence or otherwise, and until a new list can be created, or when no eligible list for such position exists, names may be certified from eligible lists most appropriate for the group or class in which the position to be filled is classified. A person certi- fied from an eligible list more than three times to the same appointing officer for the same or similar positions, may be omitted from future certifications to such officer, provided § 486-13 THE OHIO MUNICIPAL CODE. 1140 that certification for a temporary appointment shall not be counted as one of such certifications. ; Appointments to all positions in the classified service, as herein defined, that are not filled by promotion, transfer or reduction, as provided for in this act and the rules of the commission prescribed thereunder, shall be made only from those persons whose' names are certified to the appointing of- ficer in accordance with the provisions of this act, and no employment, except as provided in this act, shall be otherwise given in the classified service of this state or any political subdivision thereof. The appointing officer shall notify the commission of each position to be filled and shall fill such position by appointment of one of the three persons certified to him as provided in this act.? Forthwith, upon such ap- pointment and employment, each appointing officer shall re- port to the proper civil service commission the name of such appointee or employe, the title and character of his office, the duties of same, the date of the commencement of same, and the salary or compensation thereof, and such other in- formation as the commission requires in order to keep the roster herein mentioned. All original and promotional ap- pointments shall be for a probationary period of not to ex- ceed three months to be fixed by the rules of the commis- sion, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a rec- ord of the employe’s service, and if such service is unsatis- factory, the employe may, with the approval of the commis- sion, be removed or reduced without restriction; but dis- missal or reduction may be made during such period as is provided for in section 486-17 and 486-17a of the General Code. Any person who is appointed to a position in the classified service under the provisions of this act, except temporary and exceptional appointments, shall be or become forthwith a resident of the state. [106 v. 400, 408; 103 vy. 698, §13; compare G. C. §§ 4481, 4482, repealed 103 v. 698, 713.] 1141 (1) Filling vacancies.— Former Municipal Code § 166 provided that the mayor should notify the board of public safety of any vacancy which might exist in the classified service, and that the board should certify to the mayor the names of the three candidates standing highest upon the regis- ter. It was held that this pro- vision as to examination did not apply to men who were in office when the code went into effect. State, ex rel., v. Hall, 25 C. C. 361420 C. 0. CN. 83). 237, Certifying names. — Whether mandamus will lie to compel cer- tification of names, quaere. State, ew rel., v. Hall, 25 .C. OC. 361; 2 C. C. (N. 8.) 237. Appointments made other than in the way prescribed are void, and mandamus will lie to com- pel compliance with statutory provisions. State, ex rel., v. Lea, 10 N. P. (N. S.) 364; aff’d., Lea Sec. 486-14. CIVIL SERVICE, § 486-14 v. State, ex rel., 15 0. C. (N. 8.) 28 and 83 O. S. 518. For an ap- pointing officer to refuse to ap- point persons who have been cer- tified to him as eligible and to have such names removed’ from the list is in violation of law, even though he believed such per- sons are incompetent or ineffi- cient or even immoral or vicious. Tiernan ‘v. Cincinnati, 18 N. P. (N. 8.) 145. Creating vacancies.—A vacancy ean not be created in a position in the municipal service by an ordinance which abolishes the position and then re-establishes exactly the same position under a different name. Tiernan v. Cincinnati, 18 N. P. (N. 8S.) 145. (2) Permanent appointments in competitive class may not be legally made from a fewer num- ber than three names. Op. Atty. Gen. (1916), p. 201. [Temporary and exceptional appointments. ]* Positions in the classified service may be filled without com- petition as follows: 1. Whenever there are urgent reasons for filling a va- cancy in any position in the classified service and the com- mission is unable to certify to the appointing officer, upon requisition by the latter, a list of persons eligible for ap- pointment after a competitive examination, the appointing officer may nominate a person to the commission for non- competitive examination, and if such nominee shall be cer. tified by the commission as qualified after such non-com- petitive examination, he may be appointed provisionally to fill such vacaney until a selection and appointment can be made after competitive examination; but such provisional appointment shall continue in force only until regular ap- pointment can be made from eligible lists prepared by the commission, and such eligible lists shall be prepared within § 486-14 THE OHIO MUNICIPAL CODE. 1142 ninety days thereafter. In case of an emergency an ap- pointment may be made without regard to the rules of this act, but in no case to continue longer than thirty days, and in no case shall successive appointments be made: provided, however, that interim or temporary appointments, made necessary by reason of sickness or disability of regular of- ficers, employes or subordinates shall continue only during such period of sickness or disability, subject to rules to be provided for by the commission. 2. In case of a vacancy in a position in the classified ser- vice where peculiar and exceptional qualifications of a scien- tific, managerial, professional, or educational character are required, and upon satisfactory evidence that for specified reasons competition in such special case is impracticable and that the position can best be filled by a selection of some designated person of high and recognized attainments in such qualities, the commission may suspend the provisions of the statute requiring competition in such ease, but no suspension shall be general in its application to such place, and all such eases of suspension shall be reported in the annual report of the commission with the reasons for the same. Y 3. Where the services to be rendered by an appointee are for a temporary period, not to exceed one month, and the need of such service is important and urgent, the ap- pointing officer may select for such temporary service any person on the proper list of those eligible for permanent appointment. Suecessive temporary appointments to the Same position shall not be made under this provision. The acceptance or refusal by an eligible of a temporary appoint- ment shall not affect his standing on the register for per- manent employment; nor shall the period of temporary ser- vice be counted as a part of the probationary service in case of subsequent appointment to a permanent position. [106 v. 400, 409; 103 v. 698, § 14; compare G. C. § 4488, repealed 103 v. 698, 713.] (1) Validity.— Held constitu- The section number, doubtless tional. Green v. Commission, 15 intended for 486-14 is carried in N. P. (N. 8.) 385; aff’d 90 O. 8. the amended act as here shown. 252. : 1143 CIVIL SERVICE. § 486-15 Sec. 486-15. [Promotions.]' Vacancies in positions in the classified service shall be filled in so far as practicable by promotions. The commission shall provide in its rules for keeping a record of efficiency for each employe in the classi- fied service, and for making promotions in the classified ser- vice on the basis of merit, to be ascertained as far as prac- ticable by promotional examinations, by conduct and ea- pacity in office, and by seniority in service; and shall pro- vide that vacancies shall be filled by promotion in all cases where, in the judgment of the commission, it shall be for the best interest of the service so to fill such vacancies. All examinations for promotions shall be competitive. In pro- motional examinations efficiency and seniority in service shall form a part of the maximum mark attainable in such examination. In all cases where vacancies are to be filled by promotion, the commission shall certify to the appointing authority only the name of the person having the highest rating. The method of examination for promotions, the manner of giving notice thereof, and the rules governing the same shall be in general the same as those provided for original examinations, except as otherwise provided herein. [106 v. 400, 410; 103 v. 698, § 15; compare G. C. § 4480, re- pealed 103 v. 698, 713.] _(1) Promotion.—When an offi- cer is required by law to appoint and promote city employes from a list of those who have attained a certain grade in competitive civil service examinations, he can not, in the exercise of his discre- tion, promote one who has failed to attain the prescribed grade, even though it be by the fraction of one percent, and there are special reasons why he believed that one will be more efficient in the position to which he desires Sec. 486-16. to promote him. State, ex rel., v. Hyman, 25 C. C. (N. 8.) 361. Determination not subject to reversal—Where the commission has once determined that a mem- ber of the police force is eligible for promotion, and promotion is duly made after competitive ex- aminatiou, it is without power to subsequently reverse its decision with respect thereto, and a sub- sequent board is bound by such former action. State, ex rel., v. Keefer, et al. 20 ©. C. (N. S.) 366; 3 Ohio App. 426. [Transfers and reinstatements.] With the consent of the commission, a person holding an office or po- § 486-17 _ THE OHIO MUNICIPAL CODE. 1144 sition in the classified service may be transferred to a simi- lar position in another office, department or institution hav- ing the same pay and similar duties; but no transfer shall be made from an office or position in one class to an office or position in another class, nor shall a person be transferred to an office or position for original entrance to which there is required by this act, or the rules adopted pursuant thereto, an examination involving essential tests or qualifications or carrying a salary different from or higher than those re- quired for original entrance to an office or position held by such person. Any person holding an. office or position under the classi- fied service who has been separated from the service with- out delinquency or misconduct on his part may, with the consent of the commission, be reinstated within one year from the date of such separation to a vacancy in the same or similar office or position in the same department; and whenever any permanent office or position in the classified service is abolished! or made unnecessary, the person holding such office or position shall be placed by the commission at the head of an appropriate eligible list, and for a period of not to exceed one year shall be certified to an appointing officer as in the case of original appointments. [106 v. 400, _ 411; 108 v. 698, § 16] (1) The sole purpose of the rule’ their places, is to compel the com- and the statute requiring the head mission to put back on the eligible of a department to notify the list the names of such ineum- commission when any position is bents. Tiernan v. Cincinnati, 18 abolished and to furnish the N. P. (N. 8.) 146. names of incumbents thus losing Sec. 486-17. [Reductions, lay-offs and suspensions.] No person shall be reduced in pay or position, laid off, sus- pended, discharged or otherwise discriminated against by an appointing officer for religious or political reasons or affilia- tions. In all cases of reduction, lay-off or suspension of an employe or subordinate, whether appointed for a definite term or otherwise, the appointing authority shall furnish such employe or subordinate. with a copy of the order of lay-off, reduction or suspension and his reasons for the ee eee ee ee ee ee eT ee re ee ee 1145 CIVIL SERVICE. § 486-17a same, and give such employe or subordinate a reasonable time in which to make and file an explanation.” Such order together with the explanation, if any, of the subordinate shall be filed with the commission. Nothing in this act con- tained shall limit the power of an appointing officer to sus- pend without pay, for purposes of discipline, an employe or subordinate for a reasonable period, not exceeding thirty days; provided, however, that successive suspensions shall not be allowed, and provided further that the provisions of this section shall not apply to temporary and exceptional appointments made under the authority of section 486-14 of the General Code. [106 v. 400, 411; 103 v. 698, §17; com- pare G. C. § 4412, 4485, 4487, repealed 103 v. 698, 713.] (1) Religious or political.— to office. See State, ex rel. v. Where the matters of fact as- signed as reasons would, if true, afford ground for discharge and it is not claimed that the dis- charge was made for ‘‘religious or political reasons,’’ the court can not inquire into the truth or falsity of the assigned reasons. State, ex reli, v. Fosdick, 17° N. P. (N. 8.) 486. (2) Salary during suspension.— Contempt proceedings against mayor and other city officials who had failed to pay salary of chief of police after restoration Hamilton, 19 C. C. (N. 8S.) 229; (aff’d State, ex rel., v. Cassing- ham, 88 O. 8. 603). Reduction in rank.—The power conferred by Section 1545-24, Re- vised Statutes, upon the head of a department of a municipal corporation to remove or suspend any officer or employe of that department, includes a power to reduce in rank as it is the exer- cise of a power of the same in- herent nature as the power granted. State, ex rel., v. Lapp, 24 C. C. (N. 8.) 321. The tenure Sec. 486-17a. [Tenure of office, removals.]' of every officer, employe or subordinate in the classified ser- vice of the state, the counties, cities and city school districts thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employe or subordinate may be removed for in- competency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the pub- lic, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office. § 486-17 THE OHIO MUNICIPAL CODE. 1146 In all cases of removal the appointing authority shall fur- nish such employe or subordinate with a copy of the order of removal and his reasons for the same, and give such offi- cer, employe or subordinate a reasonable time in which to make and file an explanation. Such order with the explana- tion, if any, of the employe or subordinate shall be filed with the commission. Any such employe or subordinate so re- moved may appeal from the decision or order of such ap- pointing authority to the state or municipal commission, as the case may be, within ten days from and after the date of such removal, in which event the commission shall forth- with notify the appointing authority and shall hear, or ap- point a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission’s decision shall be final; pro- vided, however, that in the case of the removal of a chief of police or chief of the fire department of a municipality an appeal may be had from the decision of the municipal commission to the court of common pleas? of the county in which such municipality is situated to determine the suffi- ciency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission. [106 v. 400, 412; 103 v. 698, § 17; compare G. C. § 4412, 4477, 4484, 4485, 4487, 7690-2, repealed 103 v. 698, 713, and 4505, re- pealed 106 v. 400, 419.] (1) Terms of incumbents un- changed.—The terms of such pub- lic offices and positions as are fixed by statute, remain un- changed by the civil service act of May 10, 1918, and an incum- ment on January 1, 1914, of such office or position, while protected from removal, suspension, reduec- tion or transfer except for cause as therein provided, is not there- by given a new term of office, nor is his existing term thereby lengthened or extended. State, ex rel. v. Schneller, 15 N. P. (N. S.) 438. Incumbents of office and posi- tions whose statutory terms ex- pired December 31, 1913, are not continued in office or position thereafter by the civil service act aforesaid. I0. Term of appointee—An _ ap- pointment made, the employment to ‘‘eease at the pleasure of the Board,’’ was held under provision in former §167 M. C., similar to provision above to be contrary to the spirit and letter of such pro- vision. Bender v. Cushing, 14 Dee. 65. No right of appeal to the com- 1147 mission exists where a removal has been made from the classified service otherwise than in accord- ance with law. State, ex rel., v. Biened, od" No Po CN. 8.) 113; (aff’d by Court of Appeals with- out report). Demurrer does not lie to a peti- tion in mandamus filed by a police officer who alleges that he has been removed from office without cause and without being furnished a statement of the reasons for his removal. Jb. If charges upon which a mem- ber of the police force of a city was tried by the director of pub- lie safety and the civil service commission and discharged from the force, are indefinite or trivial, or not such as are recognized by law or the rules made by the police department in pursuance of the law as causes for which an officer may be suspended, the judgment of suspension is void; but if the charges or any of them, are of the kind and character which the law recognizes as suffi- cient to authorize the discharge or suspension of the officer from the police department, then the court will not inquire into the question whether the charges were sustained by the evidence or not, unless fraud is_ alleged. State, ex rel. v. Cleveland, 20 Oi ua GN. 8.) ) 250. Superintendent of waterworks CIVIL SERVICE, § 486-18 of a city, having held position continuously for more than seven years prior to January 1, 1915, may be removed only by § 486-17a. Op. Atty. Gen. (1916), p. 1115. This section requiring appeal within ten days is mandatory in effect, and if not complied with, such employe is without remedy in a court of law. State, ex rel., ¥. Fosdick; ‘et aly-ol N. Po CN. A) han Ga (2) Review by court.—The ac- tion of the proper tribunal for the removal of a police officer was under former statutes, held final so far as the question of the truth of the charges is concerned. State, ex rel., v. Barrett, 22 C. C. 104; State, ex rel., v. Hyman, 22 G..\C. 2133. State, ew -rel.,.v. Hyman, 21 C. C. 187. This section gives common pleas court jurisdiction to try question of removal of chief of police or fire department, de novo. Lan- dry v. Harmon, 27 O. C. A. 301; 5 Ohio App. 217. As to definiteness of charges, see State ex rel., v. Barrett, 22 €. ©. 104, A finding ‘‘from the evidence and also from facts within per- sonal knowledge’’ is not a prop- er exercise of power, unless the facts are shown and an oppor- tunity to refute them _ given. State v. Sullivan, 58 O. S. 504. Sec. 486-18.. [Efficiency.] The commission shall from time to time make investigations for the purpose of ascertaining the duties imposed by law and practice upon each officer and employe or subordinate in the classified service, the manner in which such duties are performed, the cost thereof, and such other facts as will enable the commission to determine § 486-19 THE OHIO MUNICIPAL CODE. 1148 the efficiency of such officers and employes and subordinates. The commission shall establish grades in the classified ser- vice, based upon similarity of duties and salaries; shall stand- ardize employment in each grade; shall prescribe factors or quantities to be used in marking the relative efficiency of each officer and employe or subordinate in such grades; shall fix standards of efficiency to be maintained by officers and employes or subordinates; and shall keep a record of the efficiency markings for each officer and employe or subor- dinate in the classified service. All officers and employes or subordinates in the state, the several counties, cities and city school districts thereof, whether in the classified service or not, shall promptly and correctly report to the commission any information required by the rules of the commission relative to the conduct, ca- pacity, and efficiency of any officer, employe or subordinate in the classified service under his supervision. The records, reports and markings of. efficiency in each department, of- fice and institution shall be open at all times to inspection by the commission and shall be subject to review and cor- rection by the commission. The efficiency records of the commission respecting each department, board, commission, or institution; shall be open to the heads of such depart- ment, board, commission or institution; and each officer and employe or subordinate shall have the right to be informed of the efficiency markings recorded for him by the commis- sion. The commission shall report to the officer in charge of a department, board, commission or institution its findings and recommendations relative to increasing the efficiency therein; and all cases of failure of officers, employes or sub- ordinates therein to maintain a satisfactory efficiency record, shall be sufficient ground for the dismissal of any such oifi- cer, employe or subordinate. Such reports shall be deemed public records. [106 v. 400, 412; 103 v. 698, § 18.] Sec. 486-19. [Municipal civil service.]' The mayor or other chief appointing authority of each city in the state shall appoint three persons, one for a term of two years, one for four years, and one for six years, who shall: consti- 1149 CIVIL SERVICE. § 486-19 tute the municipal civil service commission of such city and of the city school district in which such city is located; pro- vided, however, that members of existing municipal com- missions shall continue in office for the terms for which they have been appointed and until their successors are appointed and have qualified. Each alternate year thereafter the mayor or other chief appointing authority shall appoint one per- son, as successor of the member whose term expires, to serve six years and until his successor is appointed and qualified. A vacancy shall be filled by the mayor or other chief ap- pointing authority of a city for the unexpired term. At the time of any appointment not more than two commissioners shall be adherents of the same political party. Such munici- pal commission shall prescribe, amend and enforce rules not inconsistent with the provisions of this act for the classifica- tion of positions in the civil service of such city and city school district; for examinations and registrations therefor; and for appointments, promotions, removals, transfers, lay- offs, suspensions, reductions and reinstatements therein; and for standardizing positions and maintaining efficiency there- in. Said municipal commission shall have and exercise all other powers and perform all other duties with respect to the civil service of such city and city school district, as herein prescribed and conferred upon the state civil service commission with respect to the civil service of the state; and all authority granted to the state commission with respect to the service under its jurisdiction shall, except as otherwise provided in this act, be held to grant the same authority to the municipal commission with respect to the service under its jurisdiction. The procedure applicable to reductions, sus- pensions and removals, as provided for in section 486-17 and 486-17a of the General Code, shall govern the civil ser- vice of municipalities. The expense and salaries of any of such municipal commission shall be determined by the coun- ceil of such city and a sufficient sum of money shall be appro- priated each year to carry out the provisions of this act in such city. If the appointing authority of any such city fails to ap- point a civil service commission or commissioner, as pro- § 486-19 THE OHIO MUNICIPAL CODE. 1150 vided by law, within sixty days? after he has the power to so appoint, or after a vacancy exists, the state conimission shall make the appointment, and such appointee shall hold office until the expiration of the term of the appointing au- thority of such city and until the successor of such ap- pointee is appointed and qualified. If any such municipal commission fails to prepare and submit such rules and regu- lations in pursuance of the provisions of this act within six months after this act goes into effect, the state commission shall forthwith make such rules. The provisions of this act shall in all other respects, except as provided in this section, be in full force and effect in such cities. It shall be the duty of each municipal commission to make reports from time to time, as the state commission may re- quire, of the manner in which the law and the rules and regulations thereunder have been and are being administered, and the results of their administration in such city and city school district. A copy of the annual report of each such municipal commission shall be filed in the office of the state commission as a publie record. Whenever the state commission shall have reason to be- lieve that a civil service commission of any city is violating or is failing to perform the duties imposed upon it by law, or that any member of such municipal commission is wilfully or through culpable negligence violating the provisions of the law or failing to perform his dutes as a member of such commission, it may institute an investigation, and if it shall find any such violation or failure to perform the duties im- posed by law, it shall make a report of such violation in writ- ing to the chief executive authority of such city, which re- port shall be a publie record. The chief executive authority of such city may at any time remove any municipal civil ser- vice commissioner for inefficiency, neglect of duty, or mal- feasance in office, having first given to such commissioner a copy of the charges against him and an opportunity to be ° publicly heard in person or by counsel in his own defense, and any such act of removal shall be final.’ The mayor shall have the exclusive right to suspend the chief of the police department or the chief of the fire depart- 1151 CIVIL SERVICE. § 486-19 ment for incompetence, gross neglect of duty, gross immoral- ity, habitual drunkenness, failure to obey orders given him by the proper authority or for any other reasonable and just cause. If either the chief of police or chief of the fire de- partment is so suspended the mayor forthwith shall certify such fact, together with the cause of such suspension, to the municipal civil service commission, who within five days from the date of receipt of such notice shall proceed.to hear such charges and render judgment thereon,® which judgment may affirm, disaffirm or modify the judgment of the appoint- ing officer, and an appeal may be had from the decision of the commission to the court of common pleas as is provided for in section 486-17a of the General Code to determine the sufficiency of the cause of removal. [106 v. 400, 413; 103 v. 698, §19; compare G. C. §§ 4381, 4478, 4487, 4490, 7690-2, repealed 103 v. 698, 713; 4405, repealed 106 v. 400, 419; and see former R. S. §§ 1749, 1545-165a.] (1) Home Rule Cities. — Civil Service provisions in a charter adopted by a municipality under the provisions of Sec. 7 of Art. XVIII supersede the general civil service law so long as such charter provisions comply with the re- quirements of Sec. 10 of Art. XV. State, ex rel., v. Edwards, 90 O. S. 305; State, ex rel., v. Baker, 92 0. S. 506. (2) The sixty day provision is directory and not mandatory. The power to appoint continues in the mayor after the sixty days in event the Civil Service Commis- sion fails to appoint. State, ex rel., v. George, 92 O. S. 344. See Op. Atty. Gen. (1916), p. 201. (3) Removal of commissioners. —Injunction will not lie to pre- vent the mayor of a city from proceeding to remove from office the municipal civil service com- missioners, even though the pe- titions allege that the mayor is about to cause such removals without any sufficient charges be- ing filed, or without any charges whatever and without a hearing. Paine v. Kellar, Mayor, 22 ©. C. (N. 8.) 81; 4 Ohio App. 138. But in such a case, prohibition heid proper remedy. Lewis v. Lingrel, 20 G0, Gu CIN ase) OD: The state civil service commis- sion has no authority under this law to investigate the acts and conduct of the mayor of a city with reference to its enforcement by him. Green v. Commission, 90 O. S. 253. See also, Lewis v. Lingrel, 25 C.-C. (N. 8.) 55. (4) A charge that an officer collected money belonging to a city and failed and refused to pay the same over to the city treas- ury, charges gross neglect of duty and is sufficient cause for his re- moval from office. State, ex rel., v. Lesser, 94 O. S. 387. (5) Finding of commission not subject to reconsideration. — The civil service commission having § 486-20 THE OHIO MUNICIPAL CODE. 1152 found an officer guilty of charges was duly appointed and installed, preferred against him, conducted can not subsequently reconsider an examination and certified an its findings. State, ex rel, v. applicant as his successor who Lesser, 94 O. S. 387. Sec. 486-20. [Civil service districts.] For the purpose of administration the state civil service commission may divide the state into civil service districts and establish an officer in each of such districts. The commission may place in charge of each such district an assistant whose duties and compensation shall be determined and fixed by the rules of the commission. [106 v. 400, 415; 103 v. 698, § 20.] Sec. 486-21. [Pay-rolls.] After the taking effect of this act it shall be unlawful for the auditor of state, or for any fiseal officer of any county, city or city school district thereof, to draw, sign or issue or authorize the drawing, signing or issuing of any warrant on the treasurer or other disbursing officer of the state, or of any county, city or city school district thereof, to pay any salary or compensation to any officer, clerk, employe, or other person in the classi- fied service unless an estimate, pay-roll or account for such salary or compensation containing the name of each person to be paid, shall bear the certificate of the state civil service commission, or, in case of the service of a city, the certificate of the municipal service commission of such city, that the persons named in such estimate, pay-roll or account have been appointed, promoted, reduced, suspended, or laid off or are being employed in pursuance of this act and the rules adopted thereunder. Any sum paid contrary to the provisions of this section may be recovered from any officer or officers making such payment in contravention of the provisions of law and of the rules made in pursuance of law; or from any officer signing or countersigning or authorizing the signing or coun- tersigning of any warrant for the payment of the same, or from the sureties on his official bond, in an action in the’ courts of the state, maintained by a citizen resident therein. All moneys recovered in any action brought, under the pro- visions of this section must, when collected, be paid into the 1153 CIVIL SERVICE. § 486-22 treasury of the state or appropriate civil division thereof, ex- cept that the plaintiff in any action shall be entitled to re- cover his own taxable costs of such action. [106 v. 400, 415; 103 v. 698, § 21; compare G. C. § 4491, 4504, repealed 103 v. 698, 713.] Sec. 486-22. [Investigations.] Whenever a civil service commission shall have reason to believe that any officer, board, commission, head of a department, or person having the power of appointment, lay-off, suspension or removal, has abused such power by making an appointment, lay-off, reduction, suspension, or removal in violation of the pro- visions of this act, it shall be the duty of the commission to make an investigation, and if it shall find that such viola- tion of the provisions or the intent and spirit of this act has occurred, it shall make a report thereof to the governor, or in the case of a municipal officer or employe to the mayor or other chief appointing authority, who shall have the power to remove forthwith such guilty officer, board, com- mission, head of department, or person; an opportunity first having been given to such officer, employe or subordinate of being publicly heard in person or by counsel in his own de- fense, and such action of removal by the governor, mayor or other chief appointing authority shall be final except as otherwise provided herein. [106 v. 400, 416; 103 v. 698, § 22; compare G. C. § 4489, repealed 103 v. 698, 713.] Sec, 486-23. [Political assessments.] No officer, employe or subordinate in the classified service of the state, the sev- eral counties, cities and city school districts thereof, shall directly or indirectly, orally or by letter, solicit or receive, or be in any manner concerned in soliciting or receiving any assessment, subscription or contribution for any political party or for any candidate for public office; nor shall any person solicit directly or indirectly, orally or by letter, or be in any manner concerned in soliciting any such assess- ment, contribution or payment from any officer, employe or subordinate in the classified service of the state, the several counties, cities or city school districts thereof; nor shall any officer or employe in the classified service of the state, the § 486-24 THE OHIO MUNICIPAL CODE. 1154 several counties, cities and city school districts. thereof be an officer in any political organization or take part in politics? other than to vote as he pleases and to express freely his political opinions. [106 v. 400, 416; 103 v. 698, § 23; compare G. C. 4497, 4500 and 4501, repealed 103 v. 698, 713.] (1) One holding position in fice. Op. Atty. Gen. (1916), p. classified Civil Service cannot be 375. an active candidate for public of- Sec. 486-24. [Frauds in examination prohibited.] No-per- son or officer shall wilfully or, corruptly by himself or in ¢o- operation with one or more persons defeat, deceive, or ob- struct any person in respect of his or her right of examina- tion, appointment or employment according to this act, or to any rules or regulations prescribed pursuant thereto; or wilfully or corruptly, falsely mark, grade, estimate or re- port upon the examination or proper standing of any per- son examined, registered or certified pursuant to the pro- visions of this act, or aid in so doing; or wilfully or cor- ruptly make any false representations concerning the same, or concerning the person examined; or wilfully or corruptly furnish to any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any person so examined, registered or certi- fied, or to be examined, registered or certified; or personate any other person, or permit or aid in any manner any per- son to personate him, in connection with any examination, registration or appointment or application or request to be examined, registered or appointed; or who shall furnish any false information about himself, or any other person, in con- nection with any examination, registration or appointment or application or request to be examined, registered or ap- pointed. [106 v. 400, 416; 103 v. 698, § 24; compare G. C. § 4496, repealed 108 v. 698, 713.] Sec. 486-25. [Payment for places prohibited.] No appli- cant for appointment or promotion in the classified service shall, directly or indirectly, pay or promise to pay any money or other valuable thing, nor shall he ask or receive any recommendation or assistance from any person, upon the con- 1155 CIVIL SERVICE. § 486-26 sideration of any political service to be rendered, for or on account of his appointment or promotion, or proposed ap- pointment or promotion. [106 v. 400, 417; 103 v. 698, § 25; compare G. C. §§ 4498, 4499, repealed 103 v. 698, 713.] Sec. 486-26. [Abuse of official power.] No officer or em- ploye of the state, the several counties, cities and city school districts thereof shall appoint, promote, reduce, suspend, lay-off, discharge, or in any manner change the official rank or compensation of any officer, employe or subordinate in the classified service, or promise or threaten to do so, for giving or withholding, or neglecting to make any contribu- tion of money or other valuable thing for any party or polit- ical purpose, or for refusal or neglect to render any party or political service. [106 v. 400, 417; 103 v. 698, § 26; com- pare G. C. § 4502, repealed 103 v. 698, 713.] Sec. 486-27. [Abuse of political influence.] No person who holds any public office, or who has been nominated for, or who seeks a nomination or appointment to any public of- fice, shall corruptly use or promise to use either directly or indirectly, any official authority or influence in order to se- cure or aid any person in securing for himself or another any office or employment in the classified service, or any promotion or increase of salary therein, as a reward for po- litical influence or service. Nor shall any person, by means of threats or coercion, induce or seek to induce anyone in the classified service to resign his position or to waive his right to certification, appointment or promotion. [106 v. 400, 417; 103 v. 698, § 27; compare G. C. § 4503, repealed 103 v. 698, 713; and see also R. S. 1545-20-109.] Sec. 486-28. [Violations.] Whoever, after a rule has been duly established and published by any civil service ecommis- sion according to the provisions of this act, makes an ap- pointment to office or selects a person for employment con- trary to the provisions of such rule, or wilfully refuses or neglects otherwise to comply with or to conform to the pro- visions of this act, or wilfully violates any of such pro- visions, shall be deemed guilty of a misdemeanor and upon § 486-29 THE OHIO MUNICIPAL CODE. 1156 conviction thereof shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for a term not to exceed six months, or by both such fine and imprisonment, in the diseretion of the court. If any person so convicted shall hold any public office or place of public employment such office or position shall by virtue of such conviction be ren- dered vacant. [106 v. 400, 417; 103 v. 698, §28; compare G. C. §§ 4496, 12895, 12896, repealed 103 v. 698, 713.] Sec. 486-29. [Taxpayers’ right of action.] The right of any taxpayer to bring an action to restrain the payment of compensation to any person appointed to or holding any of- fice or place of employment in violation of provisions of this act, shall not be limited or denied by reason of the fact that said office or place of employment shall have been classified as, or determined to be classified as, not subject to competi- tive examination; provided, however, that any judgment or injunction granted or made in any such action shall be pros- pective only, and shall not affect payments already made or due to such persons by the proper disbursing officers, in ac- cordance with the civil service rules in force at the times of such payments. [106 v. 400, 418; 103 v. 698, § 29.] Sec. 486-30. [Prosecutions.] Prosecutions for the viola- tion of the provisions of this act, or the rules and regulations of the state commission established in conformity thereto, shall be instituted by the attorney-general or by the state commission acting through special counsel, or by the county prosecutor for the county in which the offense is alleged to have been committed; and prosecutions for violations of this act and the rules and regulations of any municipal commis- sion by any officer or employe of such city, shall be instituted by such municipal commission through the legal department. of such city or by such municipal commission acting through special counsel. [106 v. 400, 418; 103 v. 698, § 30.] Sec, 486-31. [Schedule.]' All officers, employes and sub- ordinates in the classified service of the state, the several counties, cities and city school districts thereof, holding 1157 CIVIL SERVICE. § 486-31 their positions under existing civil service laws, and who are holding such positions by virtue of having taken a regular competitive examination as provided by law, shall, when this act takes effect, be deemed appointees within the provisions of this act; but no person holding a position in the classified service by virtue of having taken a non-competitive exam- ination shall be deemed to have been appointed or to be an appointee in conformity with the provisions of this act; pro- vided, however, that all persons who have served the state or any political subdivision thereof continuously and satis- factorily for a period of not less than seven years next pre- ceding January 1, 1915, shall be deemed appointees within the provisions of this act. The name of each officer, employe and subordinate hold- ing a position in the classified service of the state, the coun- ties, cities and city school districts thereof at the time this act takes effect, who has not passed a regular competitive examination and who has not been in the service seven years as herein provided, shall, within ten days after this act be- comes effective, be reported by the appointing authority to the commission and shall be certified to the appointing authority in addition to the three candidates for appoint- ment to such position. If any such person is reappointed, he shall be deemed to have been appointed under the pro- visions of this act. If no eligible list exists such person may be retained as a provisional employe until such time, consistent with reasonable diligence, as the commission can prepare eligible lists when such position shall be filled as prescribed in this act; provided that nothing contained in this section shall be deemed to vacate the office of existing chiefs of police departments or chiefs of fire departments of municipalities. All existing eligible lists of persons who have taken regular competitive examinations shall continue in force for the term of eligibility to be fixed by the commis- sion as provided herein. All property of the existing state commission shall become the property of the commission to be appointed hereunder. [106 v. 400, 418; 103 v. 698, § 31.] (1) Validity—The placing of service or in the unclassified ser- certain positions in the classified vice, or employes being protected § 486-31 by the civil service law, or not being protected by the civil ser- vice law, is a legislative func- tion and not the exercise of execu- tive duties, and § 486-31 of the General Code of Obio, known as the Moore-Barnes Act, is consti- tutional and not violative of Sec- tion 1 of Article II of the Con- stitution of Ohio. State, ew rel., VemMosdick: Seth als colweuNiuelvees( ING S.) 187. One who was given a temporary appointment to the municipal service during the year 1912 and prior to the furnishing of an eligi- THE OHIO MUNICIPAL CODE. 1158 ble list by the civil service com- mission, was an incumbent at the time the civil service law of 1913 went into effect, and was entitled to hold his position until he failed to qualify therefor or was dis- charged for cause. State, ew rel., v. Fosdick, 25 C. GC. (N. S.) 241. See also State, ex rel., v. Keefer, 6b alj* 20S Cl Cs UNG eeke Slee Keefer v. State, ew rel., 20 C. C. (N. 8.) 474, affirming 16 N. P. (N. 8.) 145. , See Op. Atty. Gen. (1916), p. 803. xX. BOARD OF HEALTH? BUREAU OF VITAL STATISTICS.” Sec. 197. [State system of vital statistics; central bureau and registration districts.] A state system of registration of births and deaths is hereby established, which shall consist of a central bureau of vital statistics and primary registration districts. The eentral bureau shall be maintained at the capitol of the state. Each city, village and township shall constitute a primary registration district. The secretary of state shall have charge of such system, and general supervision of the cen- tral bureau. [99 v. 296 §§ 1, 2, 3.] (1) Municipal Code provi- (2) For other sections, not sions relating to the board of health will be found in §§ 4404 to 4476 ante, in Part I. Inspector of plumbing.—For provisions relating to inspection of plumbing under authority of the State Board of Health in munici- palities where plumbing is not reg- ulated by ordinance, see 101 O. L. p. 395. & carried here, relating to the duties of registrars and physicians as to reporting births, deaths, etc., see §§ 202 to 234, G. C. Invalidity of sections (§§ 14, 17 and 21 of act 99 O. L. 296) relat- ing to duties of physicians and mid- wives in making reports, see State v. Boone, 84 O. S. 346. Sec. 198. [Duties of secretary of state.] The secretary of state shall prescribe methods, forms and blanks and furnish necessary postage for obtaining registration of births, and deaths in each district, and of preserving the records there- of and those of the central bureau. He shall enforce the provisions of this chapter thoroughly and uniformly through- out the state, and from time to time, shall recommend neces- sary legislation for that purpose. He shall provide for neces- sary clerical and other assistance to carry out the provisions of this chapter. No system of registration of births and deaths in municipalities in conflict with this chapter shall be maintained or continued. [103 v. 194; 99 v. 296, §§ 1, 2.] 1159 § 199 THE OHIO MUNICIPAL CODE. - 1160 Sec. 199. Repealed. Sec. 200. [Duties of state registrar.‘] The state registrar of vital statistics shall prepare and print blanks and forms to be used by registrars in registering, recording and preserving the returns, or in otherwise carrying out the provisions of this chap- ter. He shall prepare and issue detailed instructions necessary to secure the uniform observance thereof and the maintenance: of a perfect system of registration. No blanks shall be used other than those supplied by the state registrar. He shall inform registrars of diseases considered by the state board of health infectious, contagious, or communicable and dangerous to the public health, in order that, when deaths oécur therefrom, proper precautions may be taken against such diseases. He may combine two or more primary registration districts into one primary registration district. [99 v. 303 §§17, 3.] (1) By the terms of the new _ tics are lodged with the state de- Administrative Code (109 O. L., partment of health. See § 154-43. p. 105), the powers and duties of Section 199 was repealed. the state registrar of vital statis- Sec. 201. [Local registrar designated.]’ In villages the village clerk and in townships the township clerk shall be the local registrar, and in cities the city board of health shall ap- point a local registrar of vital statistics, and each shall be sub- ject to the rules and regulations of the state registrar, the pro- visions of this chapter and to the penalties provided by law. With the approval of the state registrar, each local registrar, shall appoint a deputy who, in case of absence, illness or disa- bility of the local registrar, shall act in his stead. Acceptance of such appointment shall be in writing and such deputy shall be subject to the rules, regulations and provisions governing local registrars. [101 v 393; 99 v. 297 § 4.] (1) See § 1261-32, post. RELATIONS WITH STATE BOARD.1 Sec. 1237. [General powers and duties.] The state board of health shall have supervision of all matters relating to the preservation of the life and health of the people and have su- 1161 BOARD OF HEALTH. § 1238 preme authority in matters of quarantine, which it may declare and enforce, when none exists, and modify, relax or abolish, when it has been established. It may make special or standing orders or regulations for preventing the spread of contagious or infectious diseases, for governing the receipt and conveyance of remains of deceased persons, and for such other sanitary matters as it deems best to control by a general rule. It may make and enforce orders in local matters when emergency exists, or when the local board of health has neglected or refused to act with sufficient promptness or efficiency, or when such board has not been established as provided by law. In such cases the necessary expense incurred shall be paid by the city, village or township for which the services are rendered. [99 v. 493 § 6; Bates, 409-25; 90 v. 94; 86 v. 223; 83 v. 77.] (1) By amendment to §§1232 council, which by §1235 is em- et seq. G. OC. (107 O. L. 522) powered to prescribe sanitary there was provided a commission- regulations of general application, er of health who shall exercise to be known as the ‘‘sanitary all the powers and duties of the code.’’? This code will be found state board of health. There was in Page’s Compact Edition, G. C., also provided a public health following § 1235. Sec. 1238. [Enforcement of rules and regulations.] Local boards of health, health authorities and officials, officers of state institutions, police officers, sheriffs, constables and other officers and employes of the state or any county, city or township, shall enforce the quarantine and sanitary rules and _ regulations adopted by the state board of health. [99 v. 493 §7; Bates, 409-25; 90 v. 94; 86 v. 223; 83 v. 77.] Sec, 1239. [Special duties of the board.] The state board of health shall make careful inquiry as to the cause of disease, especially when contagious, infectious, epidemic or endemic, and take prompt action to control and suppress it. The reports of births and deaths, the sanitary conditions and effects of locali- ties and employments, the personal and business habits of the people and the relation of the diseases of man and beast, shall be subjects of careful study by the board. It may make and execute orders necessary to protect the people against diseases of lower animals, and shall collect and preserve information in § 1240 THE OHIO MUNICIPAL CODE. 1162 respect to such matters and kindred subjects as may be useful in the discharge of its duties, and for dissemination among the people. When called upon by the state or local governments, or municipal or township boards of health it shall promptly investigate and report upon the water supply, sewerage, disposal of excreta of any locality and the heating, plumbing and ventila- tion of a public building. [99 v. 494 § 8; Bates, 409-25; 90 v. 94; 86 v. 223; 83 v. 77.] Sec. 1240. [Approval of the board required in certain cases.] No city, village, public institution, corporation or person shall provide ‘or install for public use, a water supply or Sewerage system, or purification works for a water supply or sewage, of a municipal corporation or public-institution, or make a change in the water supply, water works intake, water puri- fication works of a municipal corporation or public institution, until the plans therefor have been submitted to and approved by the state board of health. No city, village, corporation or person shall establish a garbage disposal or manufacturing plant having a liquid waste which may enter any stream within twenty miles above the intake of a public water supply until the loca- tion of such garbage or manufacturing plant, including plans for disposing of such liquid waste, is approved by the state board of health. Whoever violates any provision of this section shall be fined not less than one hundred nor more than five hundred dollars. [99 v. 494 §9, Bates, 409-25; 90 v. 94; 86 v. 223; 83 v. 77.] Sec. 1243. [Report as to contagious or infectious diseases. ] Boards of health, health authorities or officials, and physicians in localities where there are no health authorities or officers, shall report to the state board of health promptly upon the discovery thereof, the existence of any one of the following diseases: asiatic cholera, yellow fever, smallpox, scarlet fever, diphtheria, membranous croup, typhus or typhoid fever, and such other contagious or infectious diseases as the state board specifies. [99 v. 495 § 13; Bates, 409-28 ; 95 v. 421.] Sec, 1244. [Powers of board when local authorities fail to act.] When a contagious or infectious disease becomes or 1163 BOARD OF HEALTH. § 1245 threatens to become epidemic in a city, village or township, and the local authorities neglect or refuse to enforce efficient measures for its prevention, the state board of health or its secretary, on the order of its president, may appoint a medical or sanitary officer and such assistants as he may require, and authorize him to enforce such orders or regulations as the board or its secretary deems necessary. [99 v. 495 § 14; Bates, 409-28; 95 v. 421.] Sec. 1245. [Annual conference; expenses.] The state de- partment of health shall make provision for annual confer- ences of district health commissioners for the consideration of the cause and prevention of dangerous communicable dis- eases and other measures to protect and improve the public health. Each board of health or other body or person ap- pointed or acting in place of a board of health shall appoint its health commissioner or health officer a delegate to such annual conferences. The district board of health shall pay the necessary expenses of such delegate upon presentation of a certificate from the state commissioner of health that the delegate attended the sessions of such conference. [108 v. 236, 247; 99 v. 495, §15; Bates, 409-34a; 98 v. 205.] Sec. 1246. [District commissioner may be required to at- tend school of instruction.]!} The state commissioner of health may require any district health commissioner to at- tend immediately after his appointment, a school of instruc- tion to be conducted by the state department of health at Columbus. The course at such school of instruction shall not exceed four weeks in duration, and the necessary expenses of the district health commissioner in attending such school shall be paid by the district board of health upon certifica- tion from the state commissioner of health that such officer has attended the school of instruction. [108 v. 236, 247; 99 v. 495, §16; Bates, 409-34a; 98 v. 205.] (1) The act of Dec. 18, 1919 1246, but the repealing section (108 v. 1085), indicates in its does not mention it. title an intention to repeal sec. THE OHIO MUNICIPAL CODE. § 1249 1164 PUBLIC WATER SUPPLY. Sec. 1249. [Investigation by state department of health on written complaint.]! Whenever the council or board of health, or the officer or officers performing the duties of a council or board of health, of a city or village, the commis- sioners of a county, the trustees of a township or fifty of the qualified electors of any city, village or township, or the managing officer or officers of a public institution set forth in writing to the state department of health that a city, village, public institution, corporation, partnership or person is dis- charging or is permitting to be discharged sewage or other wastes into a stream, water course, canal, lake or pond, and is hereby creating a public nuisance detrimental to health or comfort, or is polluting the source of any public water sup- ply, the commissioner of health shall forthwith inquire into and investigate the conditions complained of. [108 v. 297: 107 v. 184; 99 v. 74.] (1) Validity—This Act held to be a valid and reasonable exer- comply with such order, issue its bonds to the extent of five per- cise of the police power of the state. State Board of Health, et al. v. Greenville, 86 O. S. 1. Limitations—A municipal cor- poration issuing bonds under or- ders of state board of health pur- suant to § 1249, et seq., shall not be bound by the limitation of §§ 3940 and 3952. But may, if necessary to provide funds to cent of such property so listed and assessed for taxation, al- though the limitations provided for by §§ 3940 and 3952 have been reached. The full issue of five percent may, if necessary, be issued in any one fiscal year, without submission to a vote of the electors. State, ew rel., v. Dean, Auditor, 95 O. S. 108. Sec. 1250. [Notice of findings and hearing, how given.] If the commissioner of health finds that the discharge of Sewage or other wastes from a city, village or public institu- tion, or by a corporation, partnership or person, has so cor- rupted a stream, water course, canal, lake or pond, as to give rise to foul and noxious odors or to conditions detri- mental to health or comfort, the source of publie water sup- ply of a city, village, community or public institution is sub- ject to contamination, or has been rendered impure by such discharge of sewage or other wastes, he shall notify the mayor or managing officer or officers of such city, village, 1165 BOARD OF HEALTH. § 1251 public institution or corporation, partnership or person of his findings and of the time and place when and where a hearing may be had before the public health council. The notice herein provided shall be by personal service or by registered letter. [108 v. 297; 107 ve 184; 99 v. 74.] Sec. 1251. [Order by commissioner to make improvement; approval by council.] After such hearing if the public health council shall determine that improvements or changes are necessary and should be made, the commissioner of health shall notify the mayor or managing officer or officers of such city, village, public institution, or corporation, part- nership or person to install works or means, satisfactory to the commissioner of health, for purifying or otherwise dis- posing of such sewage or other wastes, or to change or en- large existing works, in a manner satisfactory to the com- missioner of health. Such works or means must be com- pleted and put into operation within the time fixed in the order. The order of the commissioner of health and the time fixed for making the improvements or changes shall be approved by the public health council, and notification shall be had by personal service upon or by registered letter to the mayor or managing officer or officers of the city, village, public institution or corporation, partnership or person to whom said order shall apply. But no eity or village dis- charging sewage into a river which separates the state of Ohio from another state shall be required to install sewage purification works so long as the unpurified sewage of cities or villages of another state is discharged into such river above such city or village of this state. [108 v. 297; 107 v. 184; 99 v. 74.] Sec, 1252. [Complaint of impure water supply; investiga- tion.] Whenever the board of health, or officer or officers performing the duties of a board of health of a city or vil- lage or ten per cent of the electors thereof or the manag- ing officer or officers of a public institution, shall file with the state department of health a complaint, in writing, set. ting forth that it is believed that the public water supply of such city or village, or public institution, is impure and §1252-1 THE OHIO MUNICIPAL CODE. 1166 dangerous to health, the state commissioner of health shall forthwith inquire into and investigate the conditions com- plained of. [108 v. 297; 99 v. 75.] Sec. 1252-1. [Supervisory control of public water supplies by state department of health.] The state department of health shall exercise general supervision of the operation and maintenance of the public water supply and water works systems throughout the state. For the purposes of this act a public water supply and water works system shall include any such system publicly or privately owned which is of a public or quasi-public nature installed for a municipality or part thereof, an unincorporated. community, a county sewer district or other land outside a municipality, a state, county, district or municipal public institution, a privately owned in- stitution, university, college, seminary or school, club, church, factory or other place of employment, or other public, quasi- public or privately owned institution, building or place used for the assemblage or employment of persons. Such general supervision shall include all features of construction, opera- tion and maintenance of systems for supply, treatment, stor- age and distribution, which do or may affect the sanitary quality of the water supply. For the purpose of exercising such general supervision, the state department of health shall investigate the public water supplies throughout the state as frequently as is deemed necessary by the department, and whenever requested to do so by the local health officials; and may adopt and enforce orders and regulations governing the construction, operation and maintenance of such public water supply and water works systems, and may require the sub- mission of records of construction, operation and maintenance including plans and descriptions of existing works. When the state department of health shall have required the submission of such records or information the public officials or person, firm or corporation having the works in charge shall promptly comply with such request. [109 v. 319, § 1.] Sec. 1252-2, [Analyses of water required at intervals; rec- ords.] For the purpose of controlling the sanitary quality of public water supplies, every city, village or other subdivision 1167 BOARD OF HEALTH. § 1252-3 or district, public institution, or person, firm or corporation owning or operating a public water supply or water works system shall have analyses of the water made at such intervals and in such manner as may be ordered by the state depart- ment of health; and records of the results of such analyses shall be maintained and reported'as required by the said de- partment. [109 v. 319, 320, § 2.] Sec. 1252-3. [Connection with private auxiliary or emerg- ency water supply, prohibited.] It shall be unlawful for any official, officer, or employe having in charge or being employed in the maintenance and operation of a public water supply and water works system or for any other person, firm or cor- poration to establish or permit to be established any connec- tion whereby a private, auxiliary or emergency water supply other than the regular public water supply may enter the sup- ply or distributing system, unless such private, auxiliary or emergency water supply, and the method of connection and use of such supply shall have been approved by the state de- ‘ partment of health. [109 v. 319, 320, § 3.] Sec, 1252-4. [Notice when danger of contamination or in- adequate supply; investigation.] When the commissioner of health finds upon investigation that a public water supply is subject to the danger of contamination by reason of unsatis- factory location, protection, construction, operation, or main- tenance of the system, or by reason of the existence of an unsafe emergency supply or connection to an unsafe private or auxiliary supply, or if the commissioner of health finds upon investigation that the public health is endangered by reason of the existence of an inadequate public water supply or water works system, he shall notify the city, village, coun- ty, public institution, corporation, partnership or person own- ing or operating such public water supply or water works system of his findings and of the time and place, when and where a hearing may be had before the public health council. Such notice shall be by personal service, or shall be sent by registered letter to the mayor or managing officer or officers of the city, village, county or public institution or to the cor- poration, partnership or person owning or operating such sup- § 1252-5 THE OHIO MUNICIPAL CODE. 1168 ply. Investigations made in accordance with this section may be at the initiative of the commissioner of health. [109 v. 319, 320, § 4.] Sec. 1252-5. [Corrections and changes may be ordered; no- tice; procedure.] After such hearing, if the public health council shall determine that improvements or changes are necessary and should be made, the commissioner of health shall notify the mayor or managing officer or officers of the city, village, county, or public institution or the corporation, partnership or person owning or operating such water supply or water works system to make improvements, corrections and changes in the location, protection, construction, opera- tion or maintenance of the water supply or water works sys- tem satisfactory to the commissioner of health, so as to pre- vent the contamination of the water supply or to provide a water supply not subject to the danger of contamination, or to provide a water supply and water works system adequate to avoid endangering the public health. The order of the commissioner of health and the time fixed for making the im- - provements or changes shall be approved by the public health council and the notification shall be made by personal service upon or by registered letter to the mayor or managing officer or officers of the city, village, county or public institution or to the officials, corporation, partnership or person to whom said order shall apply. When such order is issued subsequent procedures shall be in accordance with and governed by the provisions of sections 1257, 1258, 1258-1, 1258-2, 1258-3, 1258-4, 1258-5, 1258-6, 1258-7, 1258-8, 1259, 1259-1, 1260 and 1261 of the General Code. [109 v. 319, 821, §5.] Sec. 1252-6. [Penalty for violation of law.] Whoever vio- lates any of the provisions of sections 1, 2 or 3 of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding five hundred dollars ($500). [109 v. 319, 321, § 6.] Sec. 1253. [Notice of findings and time and place of hear- ing.] If the commissioner of health finds that the public water supply of a city, village or public institution is im- 1169 BOARD OF HEALTH. ‘ § 1254 pure and dangerous to health, and that it is not practicable to sufficiently improve the character of such supply by re- moving the source or sources of pollution affecting it, or if the commissioner of health finds that such water supply is being rendered impure and dangerous to health by reason of improper construction or inadequate size of existing water purification works, he shall notify such city, village, or pub- lic institution, corporation, partnership or person owning or operating such water supply or water works of his findings and of the time and place when and where a hearing may be had before the public health council. Such notice shall be by personal service or shall be sent by registered letter to the mayor or managing officer or officers of the city, village, public institution, or corporation, partnership or person own- ing or operating such water supply or water works. [108 v. 297-99 Wi TS: ] Sec. 1254. [Changes may be required on approval of pub- lic health council.] After such hearing, if the public health council shall determine that improvements or changes are necessary and should be made, the commissioner of health shall notify the mayor or managing officer or officers of the city, village, public institution or corporation, partnership or person owning or operating such water supply or water works to change the source of supply or to install and place in operation water purification works or device satisfactory to the commissioner of health, or to change or enlarge exist- ing water purification works in a manner satisfactory to said commissioner. The order of the commissioner of health and the time fixed for making the improvements or changes shall be approved by the public health council and notifica- tion shall be had by personal service upon or by registered letter to the mayor or managing officer or officers of the city, village, public institution or corporation, partnership or person to whom said order shall apply. [108 v. 297; 99 v. 15.] Sec. 1255. [Order for improvement of water works.] When the commissioner of health finds, upon investigation, that any water purification or sewage treatment works, on ac- § 1256 THE OHIO MUNICIPAL CODE. 1170 count of incompetent supervision or inefficient operation is not producing an effluent of such quality as might be reason- ably obtained from such water purification or sewage treat- ment works, and by reason of such neglect the public water supply has become impure and dangerous to health,’ or that a stream, water course, canal, lake, pond, or body of water has become offensively polluted or has become a public nui- sance or that a public water supply taken from such stream, water course, canal, lake, pond or body of water has been rendered impure and dangerous to health, the commissioner of health shall issue an order to the mayor or managing of- ficer or officers of the city, village, public institution, or cor- poration, partnership or person having charge of or owning such water purification or sewage treatment works, to secure an effluent of such quality as might be reasonably expected from such works and ‘satisfactory to the commissioner of healthy [108)v.:297; 09 v576.} (1) Municipal liability—A mu- nicipal corporation, in the con- struction and maintenance of a sewage disposal plant, acts in a purely governmental and not in sewage disposal plant was so neg- ligently constructed that the con- tents leaked therefrom and, per- colating through the earth, con- taminated the well from which a private or proprietary capacity, and it follows that no cause of action is stated for a personal injury against a municipality by the allegation that the basin of a plaintiff obtained her _ water, causing her to be stricken with typhoid fever. Waugh v. Marble Chitty 19°Ne? P. SCN.) 2s. Sec. 1256. [Order to appoint and pay competent person on failure to comply.] If the managing officer or officers of such city, village, public institution, or corporation, part- nership or person fails, for a period of five days after receiv- ing such order, to secure an effluent satisfactory to the com- missioner of health, the commissioner of health shall report the fact to the public health council and upon its approval may order such managing officer or officers*or person owning such works to appoint within ten days, and pay the salary of a competent person to be approved by the commissioner of health, to take charge of and operate such works as to secure the results demanded by the commissioner of health. [108 v. 297; 99 v. 76.] Liv BOARD OF HEALTH. § 1257 Sec. 1257. [Right of appeal; procedure.] If the findings or order of the commissioner of health, when approved by the public health council and made in pursuance of the pro- visions of this chapter relating to stream pollution and pub- lie water supply, are not acceptable to any city, village, pub- lic institution, corporation or owner effected thereby, such city, village, public institution, corporation or owner shall have the right of appeal as follows: Two reputable and ex- perienced sanitary engineers shall be chosen, one by the city, village, public institution, corporation or owner, and the other by the commissioner of health, who shall not be a regu- lar employe of the state department of health. Such persons shall act as referees. If the referees so chosen are unable to agree, they shall choose a third engineer of like standing and the vote of the majority shall be final. As soon as such referees are chosen, the commissioners of health shall file with them a certified copy of the complaint and the findings and order of the state department of health, and it shall be the duty of such referees to investigate the conditions com- plained of and to determine if such findings are correct and if the order provides a proper remedy for such conditions. The appeal provided for in this section shall be made within thirty days from the date of service of. the order upon the mayor or managing officer or officers of the city, village, public institution or corporation or owner, and notice there- of in writing shall be served upon the commissioner of health by personal service for which there shall be acknowledg- ment, or sent by registered letter. [108 v. 297; 99 v. 76.] Sec. 1258. [Powers of referees; fees and expenses, how paid.] Such referees may affirm or reject the findings or order of the commissioner of health or may modify such or- der as to the time within which improvements or changes shall be made, and their decision, which must be in writing and be made within a reasonable time, shall be reported to the commissioner of health and to the city, village, public institution, corporation or owner, and shall be final except as hereinafter provided. If such findings and order shall be approved or modified by said referees, the order shall be en- forced by the commissioner of health in the manner provided § 1258-1 THE OHIO MUNICIPAL CODE. 1172 for in this chapter. The fees and expenses of the referee ap-_ pointed by the commissioner of health shall be paid from funds appropriated to the state department of health for such purpose. The fees and expenses of the referee appointed by the city, village, public institution, corporation or owner shall be paid by the city, village, public institution, corpora- tion or owner making such appeal. The fees and expenses of the third referee shall be equally divided between the state department of health and the city, village, public institution, corporation or owner making appeal. [108 v. 297; 99 v. 76.] Sec. 1258-1. [When and how additional charges for sup- ply obtained.] Where an order of the commissioner of health to a corporation, partnership or person owning and operating a water works is approved or modified by the referees pro- vided for in sections 1257 and 1258 of the General Code, or if such corporation, partnership or person shall accept such order without appeal to such referees and it shall be claimed by such corporation, partnership or person that the revenues derived from the operation of such water works are not sufficient to warrant the expense of making the improvements or changes so ordered, an application may be made to the public utilities commission of Ohio for authority to make and collect additional charges from the water consumers and user of the utility’s service. Upon the filing of such application the commission shall fix a time for the hearing thereof and give notice thereof to the mayor of the municipality and the state commissioner of health, and if upon hearing the public utilities commission shall determine and find that the rates theretofore authorized to be charged will not provide revenue sufficient to operate said water works and make a reasonable return upon the investment after such improvements and changes are made, it shall by order authorize the collection of such additional charges and compensation as may under all the circumstances be just and reasonable. [108 v. 297.] Sec. 1258-2. [Vacating or modifying order.] An order as made by the commissioner of health or as approved or modi- fied by the referees as herein provided, shall be reversed, va- cated or modified by the supreme court on a petition of error, 1173 BOARD OF HEALTH.® § 1258-3 if upon consideration of the record such court is of the opin- ion that such order was unlawful and unreasonable. [108 v. 297. | Sec. 1258-3. [Proceeding by petition in error; service of summons; waiver.] The proceeding to obtain such reversal, vacation or modification shall be by petition in error, filed in the supreme court by the municipal corporation, manag- ing board or officer of a public institution, corporation, part- nership or person to which such order of the commissioner of health shall apply, setting forth the errors conplained ot ; thereupon, unless the same is duly waived, a summons shall issue and be served, as in other cases, upon the commissioner of health, or in his absence by leaving a copy at his office at the city of Columbus. [108 v. 297.] Sec. 1258-4. [Transcript to supreme court.] Upon service or waiver of summons in error the commissioner of health shall forthwith transmit to the clerk of the supreme court a transcript of his journal entries, original papers or tran- seripts thereof and a certified copy of all evidence adduced upon the hearing before the public health council in the proceeding complained of, which shall be filed in said court. [108 v. 297.] Sec, 1258-5. [When proceeding deemed commenced.] No proceeding to reverse, vacate or modify an order of the com- missioner of health shall be deemed commenced unless the petition therefor is filed within thirty days after service of the order upon the mayor or managing officer or officers of the municipal corporation, public institution, or corporation, partnership or person to whom such order shall apply. Or if there has been an appeal to referees then such petition shall be filed within two weeks after the determination of such appeal and due notice thereof. A proceeding to reverse, va- cate or modify an order of the commissioner of health shall operate to stay execution thereof until the supreme court shall render a decision thereon. [108 v. 297.] Sec. 1258-6. [Supreme court only has power to suspend order.] No court other than the supreme court shall have § 1258-7 THB OHIO MUNICIPAL CODE. 1174 the power to review, suspend or delay any order of the com- missioner of health, or enjoin, restrain or interfere with the commissioner of health or public health council in the per- formance of official duties required or power exercised under the provisions of this act. [108 v. 297.] Sec. 1258-7. [Former orders shall continue in full force.] All orders heretofore issued or promulgated by the state board of health or by the state department of health shall continue in full force and have the same effect as though they had: been lawfully made, issued or promulgated under the provisions of this act. [108 v. 297.] Sec. 1258-8. [Section or part held void does not affect others.] Each section of this act and every part thereof is hereby declared to be an independent section, and part of a section, and the holding of a section or part of a section thereof to be void or ineffective for any cause shall not be deemed to affect any other section or part thereof. [108 v. 257. Sec. 1259. [How funds provided.] Each municipal coun- cil, department or officer having jurisdiction to provide for the raising of revenues by tax levies, sale of bonds, or other- wise, shall take all steps necessary to secure the funds for any such purpose or purposes.’ When the funds are so se- cured, or the bonds therefor have been authorized by the proper municipal authority, such funds shall be considered as in the treasury and appropriated for such particular pur- pose or purposes, and shall not be used for any other pur- pose. The bonds authorized to be issued for any such pur- pose or purposes shall not exceed three per cent of the total value of all property in any city or village, as listed and assessed for taxation, and may be in addition to the total bonded indebtedness of such city or village otherwise per- mitted by law. The question of the issuance of such bonds shall not be required to be submitted to a vote of the electors. [108 v. 297; 107 v. 185; 99 v. 76.] (1) Vote required to issue bonds. See Op. Atty. Gen. (1923), No. 231. BOARD OF HEALTH. 1175 § 1259-1 Sec, 1259-1. [Levies exempt from all limitations.]' Inter- est and sinking fund levies on account of bonds issued un- der section 1259 of the General Code, in compliance with orders of the state commissioner of health, shall be exempt from all the limitations on tax levies provided by sections 5649-2 and 5649-3a of the General Code. Such levies shall also be exempt from the limitations provided by section 5649-5b of the General Code,.if the question of making such additional levy shall be submitted to the electors of the mu- nicipality issuing, or proceeding to issue, such bonds in the manner provided in sections 5649-5 and 5649-5a of the Gen- eral Code, and the same is approved by a majority of the electors voting on such question; and the proper legislative authorities of any such municipal corporation are hereby authorized to submit such question in the manner provided in said sections of the General Code at any regular election or at a special election. The number of years for which such levy shall be authorized shall not be required to be printed on the ballot, and the approval of the electors shall constitute sufficient authority for the making of such addi- tional levy annually, during the time for which the bonds are to run, or until the same are redeemed, or the redemption thereof with interest is fully provided for. [108 vy. 297; 106 v. 461.] (1) Validity.—This section held constitutional. Cleveland v. Davis, 95 QO. S. 52. Mandamus to compel tax levy. —Mandamus will lie to require duplicate a tax which has been voted by electors under this sec- tion, even before the bonds have been issued. State, ex rel., v. Zangerle, 95 O. S. 58. the county auditor to place on Sec. 1260. [Forfeiture for failure to obey orders.] If a council, department or officer of a municipality, or person, partnership or private corporation fails or refuses for a pe- riod of thirty days, after notice given him or them by the commissioner of health of his findings and order and the ap- proval thereof by the public health council, to perform any . act or acts required of him or them by this chapter relating to stream pollution and public water supply, the members of such council or department, or such officer or officers, person, § 1261 THE OHIO MUNICIPAL CODE. 1176 partnership or private corporation shall be personally lable for such default, and shall forfeit and pay to the state of Ohio five hundred dollars to be paid into the state treasury to the credit of the general revenue fund. [108 v. 297; 99 v. 77.] Sec. 1261. [Action for recovery.] An action may be be- gun for the recovery of such penalty by the prosecuting at- torney of a county in the name of the state in the court of common pleas of such county having jurisdiction of any such party or parties, or it may be begun by the attorney general in such county or the county of Franklin, as provided by law. The court of common pleas, upon good cause shown, may, at its discretion, remit such penalty or any part thereof. [108 VDOT OORT TE HEALTH DIsTRICTs# Sec. 1261-16. [Health districts.] For the purposes of local health administration the state shall be divided into health districts. Each city shall constitute a health district, and for the purposes of this act shall be known as and hereinafter referred to as a city health district. The townships and vil- lages in each county shall be combined into a health district and for the purposes of this act shall be known as and here- inafter referred to as a general health district. As herein- after provided for, there may be a union of two general health districts or a union of a general health district and a city health district located within such district. [108 v. 1085; 108 v. 236.] (1) 8§ 1261-16 to 1261-73 form- City health district in munici- erly related to the State Liquor pality advanced from village to Licensing Board. After their re- city. See Op. Atty. Gen. (1922), peal (108 0. L. 418, 719, 724) p. 167, section numbers 1261-16 to 1261- Application to villages having 43 ine., were assigned to the sec- health officer elected under village tions here given relating to health charter. See Op. Atty. Gen. (1922), districts. p. 961. Sec. 1261-17. [District boards of health; filling of vacan- cy; quorum.] In each general health district, except in a 1177 BOARD OF HEALTH. § 1261-18 district formed by the union of a general health district and a city health district, there shall be a district board of health consisting of five members to be appointed as hereinafter pro- vided and as provided in section 4406 of the General Code. The members of the board of health of a general health dis- trict shall receive no compensation for their services, but shall be reimbursed for all necessary and lawful expenses incurred in attending meetings of the board. A vacancy in the membership of the board of health of a general health district shall be filled in like manner as an original appoint- ment and shall be for the unexpired term. Provided, that when a vacancy shall occur more than ninety days prior to the annual meeting of the district advisory council the re- maining members of the district board of health may select a resident of the district to fill such vacancy until such meet- ing. A majority of the members of the district board of health shall constitute a quorum. [108 v. 1085; 108 v. 236.] Sec. 1261-18. [District advisory council; organization; ap- pointment of members of district board.] Within sixty days after this act shall take effect the mayor of each municipal- ity not constituting a city health district and the chairman of the trustees of each township in a general health district shall meet at the county seat and shall organize by selecting a chairman and a secretary. Such organization shall be known as the district advisory council. The district advisory council shall proceed to select and appoint a district board of health as hereinbefore provided, having due regard to the equal representation of all parts of the district. Where the population of any municipality represented on such district advisory council exceeds one-fifth of the total population of the district, as determined by the last preceding federal cen- sus, such municipality shall be entitled to one representative on the district board of health for each fifth of the popula- tion of such municipality. Of the members of the district board of health, one shall be a physician. Annually there- after the district advisory council shall meet on the first Monday in May for the purpose of electing its officers and a member of the district board of health and shall also re- ceive and consider the annual or special report of the dis- § 1261-19 THE OHIO MUNICIPAL CODE. 1178 trict board of health and make recommendation to the dis- trict board of health or to the state department of health in regard to matters for the betterment of health and sanitation within the district or for needed legislation. It shall be the duty of the secretary of the district’ advisory council to no- tify the district health commissioner and the state commis- sioner of health of the proceedings of such meeting. Special meetings of the district advisory council shall be held on request of the district board of health or on the order of the state commissioner of health. On certification of the chair- man and secretary the necessary expenses of each delegate to an annual or special meeting shall be paid by the village or township he represents. The district health commissioner shall attend all meetings of the district advisory council. [108 v. 1085, 1086; 108 v. 236.] Sec. 1261-19. [Organization of district board; appoint- ment of health commissioner; duties.] Within thirty days after the appointment of the members of the district board of health in a general health district, they shall organize by selecting one of the members as president and another mem- ber as president pro tempore. The district board of health shall appoint a district health commissioner upon such terms, and for such period of time, not exceeding two years, as may be prescribed by the district board. Said appointee shall be a licensed physician and shall be secretary of the board and shall devote such time to the duties of his office as may be fixed by contract with the district board of health. No- tice of such appointment shall be filed with the state com- missioner of health. The district health commissioner shall be the executive officer of the district board of health and shall carry out all orders of the district board of health and of the state department of health. He shall be charged with the enforcement of all sanitary laws and regulations in the district, and shall have within the general health district all the powers now conferred by law upon health officers of municipalities. It shall be the duty of the district health commissioner to keep the public informed in regard to ail matters affecting the health of the district. [108 v. 1085, 1086; 108 v. 236.] 1179 BUARD OF HEALTH. § 1261-20 Sec. 1261-20. [Union of city with general health district; vote on question.] When it is proposed that a city health district unite with a general health district in the forma- tion of a single district, the district advisory council of the general health district shall meet and vote on the question of union, and it shall require a majority vote of the total number of townships and villages entitled to representation voting affirmatively to carry ‘the question. The council or body performing the duties of council of the city shall like- wise vote on the question and a majority voting affirmatively shall be required for approval. When the majority of the district advisory council and council of the city have voted affirmatively, the chairman of the district advisory council and the mayor or chief executive officer of the city shall enter into a contract for the administration of health affairs in the combined district. Such contract shall state the pro- portion of the expenses of the board of health or health de- partment of the combined district to be paid by the city and by that part of the district lying outside such city; shall pro- vide for the amount and character of sanitary service to be rendered in the parts of the district lying outside such city and the date on which the board of health or health depart- ment of the city shall take over the administration of the combined health district. A copy of such contract shall be filed with the state commissioner of health. After such union is completed the board of health or health department of the city health district shall have within the combined district all the powers hereinafter granted to and perform all the duties herein or hereafter required of the board of health of a general health district. [108 v. 1085, 1087; 108 v. 236.] ‘Sec. 1261-21. [Union of general health districts; proce- dure.] Where it is proposed that two general health dis- tricts shall unite in the formation of one general health dis- trict, the district advisory council of each general health dis- trict shall meet and vote on the question of union and an af- firmative majority vote of the total number of townships and villages entitled to representation on the district advisory council shall be required for approval. When the two dis- § 1261-22 THE OHIO MUNICIPAL CODE. _ 1180 trict advisory councils have voted affirmatively on the ques- tion, they shall meet in joint’ session and shall elect a district board of health for the combined districts and not more than three members shall be from any one original district. {Location of office.] When such union is completed such district shall constitute a general health district and shall be governed in the manner herein provided for general health districts. Where two general health districts unite to form one district, the office of the district board of health shall be located at the county seat of the most populous county, except that for good cause such office may, with the approval of the state commissioner of health, be located in the municipality most accessible by usual means of trans- portation to the whole of the district. [108 v. 1085, 1087; 108 v. 236.] Sec. 1261-22. [Appointment of clerk, nurses, physicians and others; infant welfare stations, prenatal clinics, etc.] In any general health district the district board of health may upon the recommendation of the health commissioner appoint for whole or part time service a public health nurse and a clerk and such additional public health nurses, physicians and other persons, as may be necessary for the proper con- duct of its work. Such number of public health nurses may be employed as is necessary to provide adequate public health nursing service to all parts of the district. The district health commissioner and other employes of the district board of health may be removed for cause by a majority of the board. The board of health of each district may provide such infant welfare stations, prenatal clinics and other mea- sures for the protection of children as it may deem neces- sary. It may also provide for the prevention and treatment of trachoma and may establish clinics or detention hospitals and provide the necessary medical and nursing service there- for. [108 v. 1085, 1088; 108 v. 236.] Sec. 1261-24. [Appointment of board by state commis- sioner, When.] If in any general health district the district advisory council shall fail to meet or to select a district 1181 BOARD OF HEALTH. § 1261-25 board of health, within ninety days after this act shall take effect, the state commissioner of health may, with the con- sent of the public health council, appoint a district board of health for such district which shall have and exercise all powers conferred by this act on district boards of health. [108 v. 236, 240.] Sec. 1261-25. [Preferment of charges on failure or neg- lect of duty; removal; vacancies.] If the state commissioner of health shall find that the district health commissioner or the members of the board of health of a general or city health district, or any member thereof, has failed to perform any or all the duties required by this act, he shall prefer charges against such district health commissioner or such members of the board or such member before the public health council, and shall notify such commissioner or the members of such board or such member as to the time and place at which such charges will be heard. If the public health council shall, after hearing, find the district health commissioner or members of such board or such member guilty of the charge or charges, it may remove such district health commissioner, members of the board, or such member from office. When all, or a majority of the members of the board of health of a general or city health district are so removed from office, the district advisory council or the mayor of the city, upon notice of such, removal, shall within thirty days after receipt of such notice select a new board of health or members to fill the vacancies caused by removal, and if the district advisory council or mayor fails within sixty days to select such board or such member or members, the state commissioner of health with the approval of the public health council may appoint a board of health for such general or city health district or fill the vacancies caused by removal. [108 v. 1085, 1088; 108 v. 236.] Sec. 1261-26. [Duties of district board.] In addition to the duties now required of boards of health, it shall be the duty of each district board of health to study and record the prevalence of disease within its district and provide for the prompt diagnosis and control of communicable diseases. § 1261-27 THE OHIO MUNICIPAL CODE. 1182 The district board of health may also provide for the medical and dental supervision of school children, for the free treat- ment of cases of venereal diseases, for the inspection of schools, public institutions, jails, workhouses, children’s homes, infirmaries, and other charitable, benevolent, correc- tional institutions. The district board of health may also provide for the inspection of dairies, stores, restaurants, hoteis and other places where food is manufactured, handled, stored, sold or offered for sale, and for the medical inspec- tion of persons employed therein. The district board of health may also provide for the inspection and abatement of nuisances dangerous to public health or comfort, and may take such steps as are necessary to protect the public health and to prevent disease. © Provided that in the medical supervision of school chil- dren as herein provided, no medical or surgical treatment shall be administered to any minor school child except upon the written request of a parent or guardian of such child; and provided further, that any information regarding any diseased condition or defect found as a result of any med- ical school examination shall be communicated only to the parent or guardian of such child, and if in writing shall be in a sealed envelope addressed to such parent or guardian. [108 v. 1085, 1088; 108 v. 236.] Sec, 1261-27. [Provisions for laboratory work.] Each dis- trict board of health may provide for the carrying on of such laboratory work as is necessary for the proper conduct of its work. It may establish a district laboratory or may contract with any existing laboratory within or convenient to the district for the performance of such work, or may unite with another district in the establishment of a joint laboratory. It shall be the duty of all state institutions sup- ported in whole or in part by public funds to furnish such laboratory service as may be required by any district board of health under terms to be agreed upon. Any contract for the furnishing of laboratory service to a district board of health and any proposal for the establishment of a joint laboratory, shall be subject to the approval of the state com- missioner of health. In the operation of such laboratories 1183 BOARD OF HEALTH. § 1261-28 standard methods approved by the state commissioner of health shall be used. [108 v. 1085, 1089; 108 v. 236.] Sec. 1261-28. [Free treatment for venereal diseases.] Hach district board of health may provide for the free treatment of cases of gonorrhea, syphilis and chancroid. It may estab- lish and maintain one or more clinics for such purpose and may provide for the necessary medical and nursing service therefor. The district board ‘of health may provide for the quarantine of such carriers of syphilis, gonorrhea, or chan: eroid, as the state commissioner of health shall order to be quarantined. It shall use due diligence in the prevention of such venereal diseases and shall carry out all orders and regulations of the state department of health in connection therewith. [108 v. 1085, 1089; 108 v. 236.] Sec. 1261-29. [Free distribution of antitoxin.] Each dis- trict board of health shall provide for the free distribution of antitoxin for the treatment of cases of diphtheria and shall establish sufficient distributing stations to render such anti- toxin readily available in all parts of the district. [108 v. 236, 241.] Sec. 1261-30. [Supersedes existing board of health.] The district board of health hereby created shall exercise all the powers and perform all the duties now conferred and im- - posed by law upon the board of health of a municipality, and all such powers, duties, procedure and penalties for viola- tion of the sanitary regulations of a board of health shall be construed to have been transferred to the district board of health by this act. The district board of health shall exer- cise such further powers and perform such other duties as are herein conferred or imposed. [108 v. 236, 242.] Sec. 1261-31. [Inspection of county institutions.] The dis- trict health commissioner may make or cause to be made frequent inspection of all county infirmaries, children’s homes, workhouses, jails, or other charitable, benevolent or penal institutions in the district, including physical exami- nation of the inmates whenever necessary, and may make or cause to be made such laboratory examinations of such in- § 1261-32 THE OHIO MUNICIPAL CODE. 1184 mates as may be requested by any state or county official having jurisdiction over such institution. [108 v. 1085, 1090; 108 v. 236. | Sec. 1261-32. [District commissioner shall be deputy regis- trar of vital statistics; reports.] The district health commis- sioner shall be a deputy of the state registrar of vital statis- tics and shall under his direction enforce all laws governing the registration of births and deaths. Each local registrar of vital statistics shall on or before the fifth day of each month transmit to the health commissioner of the district having jurisdiction, all certificates of births or deaths received by such registrar during the preceding month, and a copy of all such certificates of births and deaths to the probate judge of the county in which such local registrar resides. The health commissioner shall within five days transmit such certificates to the state registrar of vital statistics. When any registrar shall receive any certificate of a death from any contagious or communicable disease, he shall within twenty-four hours after receipt of such certificate notify the health commissioner of the district having jurisdiction of such death on a form to be furnished by the district board of health. [109 v. 403; 108 v. 236, 242.] . Sec. 1261-33. [Detention hospitals may be established; cost of care, etc.] The district board of health may estab- | lish detention hospitals for cases of communicable diseases and provide for the support and maintenance thereof. It may collect from persons committed to such hospitals the cost of the care and treatment of such persons while in- mates therein. The expenses of such indigent persons as are committed to such detention hospitals shall be a proper charge against and shall be collected from the township or municipality from which such person was sent to the hospital. [108 v. 236, 242.] Sec. 1261-36. [Suitable quarters furnished.] The county commissioners of any county or the council of any city may furnish suitable quarters for any board of health or health department having jurisdiction over all or a major part of 1185 BOARD OF HEALTH. § 1261-37 such county or city in accordance with the provisions of this act. [108 v. 1085, 1090; 108 v. 236.] Sec. 1261-37. [Legal adviser of district board.] In general health districts the prosecuting attorney of the county con- stituting all or a major part of such district shall act as the legal advisor of the district board of health. In a proceed- ing in which the board of health of any general health dis- trict is a party the prosecuting attorney of the county in which such proceeding is instituted shall act as the legal rep- resentative of the district board of health. [108 v. 236, 243.] Sec. 1261-38. [Custodian of health fund; auditor.] The treasurer of a city which constitutes a health district shall be the custodian of the health fund of such city health dis- trict. The county treasurer of a county which constitutes all or the major portion of a general health district shall be the custodian of the health fund of that health district. The auditor of a county which constitutes all or a major portion of a general health district shall act as the auditor of the general health district. The auditor of a city which consti- tutes a city health district shall act as the auditor of a city health district. Expenses of the district board of health of a general health district shall be paid on the warrant of the county auditor issued on vouchers approved by the district board of health and signed by the district health commis- sioner. Expenses of a board of health or health department of a city health district shall be paid on the warrant of the auditor of the city issued on vouchers approved by the board of health or health department of a city health district and signed by the city health commissioner. [108 v. 1085, 1090; 108 vy. 236.] Sec. 1261-39. [When vouchers on state fund shall be is- sued.] When any general or city health district has been duly organized as provided by this act and has employed for whole or part time service a health commissioner, the chairman of the board of health, or the principal executive officer of the department of health as the case may be shall semi-annually, on the first day of January and of July, cer- § 1261-40 THE OHIO MUNICIPAL CODE. 1186 tify such fact to the state commissioner of health, stating the salary paid such health commissioner, and to the public health nurse and clerk, if any, during the preceding six months. If such board of health or health department has complied with the orders and regulations of the state depart- ment of health and has truly and faithfully complied with the provisions of this act, the state commissioner of health shall endorse such facts on the certificate and shall transmit the certificate to the auditor of state, who shall thereupon draw a voucher on the treasurer of state to the order of the custodian of the funds of such health district, payable out of the general revenue fund, in amount equal to one-half of the amount paid by the district board of health or health depart- ment to such health commissioner, public health nurse, and elerk, during such semi-annual period. Provided, that if the amount paid by such district board of health or health de- partment during any six months is in excess of two thousand dollars, the amount to be paid by the auditor of state shall be one thousand dollars and no more, and no payment shall be made unless the certificate of the district board of health or health department shall have been endorsed by the state commissioner of health as herein provided. [108 v. 1085, 1090; 108 v. 236.] Sec. [1261-40]: 2161-40. [Annual estimate for current ex- penses of district; apportionment by county auditor.] The board of health of a general health district shall an- nually, on or before the first Monday of April, esti- mate in itemized form the amounts needed for the cur- rent expenses of such districts for the fiscal year beginning on the first day of January next ensuing. Such estimate shall be certified to the county audi- tor and by him submitted to the budget commissioners which may reduce any item or items in such estimate but may not increase any item or the aggregate of all items. The agegre- gate amount as fixed by the budget commissioners shall be apportioned by the county auditor among the townships and municipalities composing the health district on the basis of taxable valuations in such townships and municipalities. The district board of health shall certify to the county 1187 BOARD OF HEALTH. § 1261-41 auditor the amount due from the state as its share of the salaries of the district health commissioner and public health nurse and clerk, if employed, for the next fiscal year, which shall be deducted from the total of such estimate before an apportionment is made. The county auditor, when making his semi-annual apportionment of funds shall retain at each such semi-annual apportionment one-half the amount so ap- portioned to each township and municipality. Such monies shall be placed in a separate fund, to be known as the ‘‘dis- trict health fund.’’ When a general health district is com- posed of townships and municipalities in two or more coun- ties, the county auditor making the original apportionment shall certify to the auditor of each county concerned the amount apportioned to each township and municipality in such county. Each auditor shall withhold from the semi- annual apportionment to each such township or municipality the amount so certified, and shall pay the amounts so with- held to the custodian of the funds of the health district con- cerned, to be credited to the district health fund. Where any general health district has been united with a city health district located therein, the mayor of the city shall annually on or before the first day of June certify to the county auditor the total amount due for the ensuing fiscal year from the municipalities and townships in the district as provided in the contract between such city and the district advisory council of the original health district. The county auditor shall thereupon apportion the amount so certified to the town- ships and municipalities, and withhold. the sums so appor- tioned as herein provided. [108 v. 1085, 1091; 108 v. 236.] (1) This section, in the latest as the section intended to be amendment is given the number amended is 1261-40, 2161-40; this is evidently an error Sec. 1261-41. [Additional expense in case of epidemic, etc. ; apportionment.]* In case of epidemic or threatened epidemic or during the unusual prevalence of a dangerous communi- cable disease, if the moneys in the district health fund of a general health district are not sufficient, in the judgment of the board of health of such district, to defray the expenses necessary to prevent the spread of such disease, such board § 1261-41 THE OHIO MUNICIPAL CODE. 1188 of health shall estimate the amount required for such pur- pose and apportion it among the townships and municipalities in which the condition herein described exists, on the basis provided for in section 25 of this act. Such estimate and ap- portionment shall be certified to the county auditor of the proper county or counties, who shall draw an order on the clerk, auditor or other similar officer of each township or mu- nicipality affected thereby, for the amount to it apportioned. Such clerk, auditor or other similar officer shall forthwith draw his warrant on the treasurer of such township or mu- nicipality for the amount of such certification, which shall be honored by the treasurer from any general treasury bal- ances subject to his control, regardless of funds. The clerk, auditor or other similar officer shall thereupon set up an ac- count to be designated ‘‘emergency health account,’’ showing a deficit therein, and certify the action taken to the trustees or council or other body having the power to borrow money. Thereupon the trustees or council or other similar body may exercise the powers provided for in sections 4450 and 4451 of the General Code. Tax levies made for the purpose set forth in this section shall be subject to the provisions of section 5649-4 of the General Code. Moneys raised under the au- thority herein conferred shall be placed in the treasury of the borrowing subdivision and credited to the ‘‘emergency health account,’’ which shall thereupon be closed; so that the moneys taken from general eash balances shall be re- stored thereto and the regular funds of the subdivision shall be restored thereby. , [Power to borrow money.] If there is not sufficient money in the general cash balances of such subdivisions to satisfy the warrant so drawn by the clerk, auditor or other similar officer, the treasurer thereof shall honor the same to the ex- tent of the cash in such treasury and the balance shall be certified by the clerk, auditor or other officer and the treas- urer, jointly, to the trustees, council or other borrowing au- thority, which shall immediately exercise the powers provided for in this section, to raise the amount of the warrant. The proceeds of such action shall be paid into the general cash 1189 BOARD OF HEALTH. § 1261-42 balance in the treasury of the subdivision, and the balance due on the warrant shall then be paid. [Separate account of expenditures.] The warrants pro- vided for in this section shall be drawn in favor of the county treasurer, as treasurer of the district health fund, and the proceeds shall go into such fund. A separate account shall be kept of expenditures under this section. If a greater amount is expended in any township or municipality than the amount drawn therefrom by action hereunder, the ex- cess shall be charged against such subdivision at the next annual apportionment in addition to the amount apportion- able to such subdivision under section 25 of this act. If the amount drawn under this section is not wholly expended in any subdivision, the unexpended remainder shall be credited to the next annual apportionment to such subdivision. [Enforcement of official duties.] Performance of the offi- cial duties by this section imposed on officers, boards and legislative bodies, may be enforced by mandamus on the re- lation of the district board of health, which is hereby given special capacity to sue in such action. In any such ease the return day of the alternative writ shall not be more than three days after the filing of the petition. [108 v. 236, 245.] (1) When board and auditor not to proceed under this section. See Op. Atty. Gen. (1923), No. 632. Sec. 1261-42. [Orders and regulations for board and for general public; publication.] The board of health of a gen. eral health district may make such orders and regulations as it deems necessary for its own government, for the public health, the prevention or restriction of disease, and the -pre- vention, abatement or suppression of nuisances. All orders and regulations not for the government of the board, but in- tended for the general public, shall be adopted, recorded and certified as are ordinances of municipalities and record there- of shall be given in all courts of the state the same force and effect as is given such ordinances, but the advertisements of such orders and regulations shall be by publication in one newspaper published and of general circulation within the § 1261-43 THE OHIO MUNICIPAL CODE. 1190 general health district. Publication shall be made once a week for two consecutive weeks and such orders and regu- _ lations shall take effect and be in force ten days from date of first publication. Provided, however, that in eases of emergency caused by epidemics of contagious or infectious diseases, or conditions or events endangering the public health, such boards may declare such orders and regulations to be emergency measures, and such orders and regulations shall become immediately effective without such advertising, recording and e¢ertifying. [108 v. 236, 246.] Sec. 1261-43. [Section or part held void shall not affect others.] In case any section or sections or part of any sec- tion or sections of this act shall be found unconstitutional, the remainder of the act shall not thereby be invalidated, but shall remain in full foree and effect. [108 v. 236, 247.] MATERNITY BOARDING HOUSES. Sec. 6259. [Licenses granted; applications must be ap- proved; record and notice.] The commissioner of health may grant licenses to maintain maternity hospitals or homes, ly- ing-in hospitals, or places where women are received and eared for during parturition. An application therefor shall first be approved by the board of health of the city, village or township in which such maternity hospital or home, lying- in hospital, or place where women are received and eared for during parturition is to be maintained. A record of the license so issued shall be kept by the state department of health, which shall forthwith give notice to the board of health of the city, village or township, in which the licensee resides, of the granting of such license and of the terms thereof. [108 v. 46; 99 v. 13.] Sec. 6260. [Term and contents of license.] Such license shall be granted for a term not exceeding one year and shall state the name of the licensee, the particular premises in which the business may be carried on, the number of women and infants that may be boarded, treated or maintained there at any one time, and, if required by the board of health of the city, village or township in which such maternity boarding 1191 | BOARD OF HEALTH. § 6261 house or lying-in hospital is located, it shall be posted in a conspicuous place on the licensed premises. [99 v. 13 § 2.] Sec, 6261. [Limitation of women and children.] No greater number of women and infants shall be kept at one time on such premises than is authorized by the license and no woman or infants shall be kept in a building or place not designated in the license. [99 v. 13 § 2.] Sec. 6262. [Visitation and inspection.] The commissioner of health and the boards of health of cities, villages or town- ships shall annually, and may, at any time, visit and inspect, or designate a person to visit and inspect the system, condi- tion and management of the institutions and premises so licensed. [108 v. 46; 99 v. 13.] Sec. 6263. [Revocation of license.] The state board of health may revoke such license when a provision of this chapter is violated, or when, in the opinion of such board, such maternity boarding house or lying-in hospital is maintained without regard to the health, comfort or morality of the inmates thereof, or without due regard to sanitation and hygiene. [99 v. 14 § 3.] Sec. 6264. [Record thereof.] Such board shall note such revocation upon the face of the record thereof and give written notice of the revocation to the licensee by delivering the notice to him in person or leaving it on the licensed premises, and shall forthwith notify the board of health of such city, village or township in which the maternity boarding house or lying-in hospital is situated. [99 v. 14 §3.] Sec. 6265. [Reporting births.] A birth which takes place in a maternity boarding house or lying-in hospital shall be attended by a legally qualified physician who shall forthwith report it to the board of health of the city, village or township in which the maternity boarding house or lying-in hospital is located. [99 v. 14 § 4.] Sec. 6266. [Adopting children.] A person holding such license shall keep a record, in a form to be prescribed by the § 6267 THE OHIO MUNICIPAL CODE. 1192 state board of health, wherein he shall enter the name and address of the physician who attended at the birth taking place in such house or hospital of any infant who may be sick, the name, age and sex of children born on the premises or brought thereto, and age of a child who is given out, adopted or taken away to or by any person, together with the name and residence of the person so adopting or taking away such child. [99 v. 14 §5.] Sec. 6267. [Copy of record.] Within twenty-four hours after such child is given out or taken away, the person licensed as aforesaid shall cause a correct copy of the record relating thereto to be sent to the board of health of the city, village or township wherein such house or hospital is located. [99 v. 14 §5.] Sec. 6268. [Coroner’s inquest.] A person licensed as afore- said, immediately after the death of an inmate of such boarding house or lying-in hospital, whether a woman or an infant born therein or brought thereto, shall cause notice thereof to be given to the board of health of the city, village or township in which such house or hospital is located. [99 v. 14 § 6.] Sec. 6269. [Local board of health.] Such board of health shall forthwith call the coroner of the county in which said person died to hold an inquest on the body of the person, unless a certificate under the hand of a legally qualified physician is exhibited to said board by the licensee that such physician had personally attended and examined the person so dying, and specifying the cause of death, and the board of health is satistied that there is no ground for holding an inquest. [99 v. 14 §6.] Sec. 6271. [Duty of licensee.] The officers and authorized agents of the state board of health and the boards of health of the cities, villages or townships in which such licensed premises are located may inspect such house or hospital at any time and examine every part thereof, call for and examine the records which are required to be kept by the provisions of this chapter, and inquire into all matters concerning such house or hospital and the inmates thereof. The licensee shall give all 1193 BOARD OF HEALTH. § 6274 reasonable information to such persons so inspecting and afford them every reasonable facility for viewing and inspecting the premises and seeing the inmates thereof. And when complaint is made or a reasonable belief exists that a maternity boarding house or lying-in hospital is being conducted without license, the board of health may cause such house to be inspected by its health officer or the state board of health may designate a person to visit and inspect such premises. [101 v. 122; 99 v. 15 § 8.] Sec. 6274. [Secrecy of records.] No officer or authorized agent of the state board of health or the board of health of the cities, villages or townships where such licensed homes or hos- pitals are located, or a keeper of such house or hospital, shall divulge or disclose the contents of the records or of the particu- lars entered therein, except upon inquiry before a court of law, at a coroners inquest or before some other competent tribunal, or for the information of the state board of health or the board of health of the city, village or township in which said house or hospital] is located. [99 v. 15 §11.] OFFENSES AGAINST PUBLIC HEALTH. Sec. 12649. [Deposit of dead animals, offal, etc., upon land or water.] Whoever puts the carcass of a dead animal’ or the offal from a slaughter house, butcher’s establishment, pack- ing house or fish house, or spoiled meat, spoiled fish, or other putrid substance or the contents of a privy vault, upon or into a lake, river, bay, creek, pond, canal, road, street, alley, lot, field, meadow, public ground, market space, or common, or, being the owner or occupant of such place, knowingly permits such thing to remain therein to the annoyance of any citizen or neglects to remove or abate the nuisance occasioned thereby within twenty- four hours after knowledge of the existence thereof, or after notice thereof in writing from a road superintendent, constable, trustee or health officer of a municipal corporation or township in which such nuisance exists or from a county commissioner of such county, shall be fined not less than ten dollars nor more than fifty dollars, and in default of the payment of such fine and § 12650 THE OHIO MUNICIPAL CODE. 1194 costs, shall be imprisoned not more than thirty days. [R. S. See. 6923; 98 v. 3389; 93 v. 298; 87 v. 349; 85 v. 268; 63 v. 102.] (1) Ownership of dead animals. to deprive owners of their prop- —Regulations governing the dis- erty in the carcasses. Stadler v. posal of dead animals must be Cleveland, 16 OC. C. (N. 8.) 603. framed and exercised so as not Sec. 12650. [Contents of vault deposited.] The next pre- ceding section shall not prohibit the deposit of the contents of privy vaults and catch basins into trenches or pits not less than three feet deep excavated in a lot, field or meadow, the owner thereof consenting, outside of the limits of a municipal corpora- tion and not less than thirty rods distant from a dwelling, well or spring of water, lake, bay, pond, canal, run, creek, brook or stream of water, public road or highway, provided that such contents so deposited are forthwith covered with at least twelve inches of dry earth; nor prohibit the deposit of such contents in furrows, as specified for such trenches or pits, to be forthwith covered with dry earth by plowing or otherwise, and with the consent of the owner or occupant of the land in which such furrows are plowed. [R. S. Sec. 6923; 98 v. 339; 93 v. 298 ; 87 v. 349; 85 v. 268; 63 v. 102.] Sec. 12651. [Board of health.] The board of health of a municipal corporation may allow such contents to be deposited within corporate limits into such trenches, pits or furrows. [R. S. Sec. 6923; 98 v. 339; 93 v. 298; 87 v. 349; 85 v. 268; 63 v. 102.] ° Sec. 12663. [Depositing poison on thoroughfares.] Who- ever leaves or deposits poison or a substance containing poison in a common,’ street, alley, lane or thoroughfare, or a yard or enclosure occupied by another, shall be fined not less than five dollars nor more than fifty dollars or imprisoned not less than five days nor more than thirty days, or both, and be liable to the person injured for all damages sustained thereby. [R. S. See. 6958; 74 v. 13.] (1) Common, definition of, see Ferguson v. Powder Co., 9 C. C. 445. 1195 BOARD OF HEALTH. § 12690 Sec. 12689. [Refusal to deliver corpse.] Whoever, being a superintendent of a city hospital, city or county infirmary, workhouse, asylum for the insane, or other charitable institution founded and supported in whole or in part at public expense, coroner, infirmary director, sheriff, or township trustee, fails to deliver a body of a deceased person when applied for, in conformity to law, or charges, receives or accepts money or other valuable consideration for such delivery, shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned not more than six months. [R. S. Sec. 3763; 93 v. 84; 78 v. 33; 67 v. 25.] Sec. 12690. [Body may be retained twenty-four hours.] The next preceding section shall not require the delivery of such body until twenty-four hours after death. [R. S. Sec. 3763; 93 v. 84;°78 v. 33; 67 v. 25.] Sec. 12716. [Definition of adulterated milk.]' In all prose- cutions under this chapter, if milk is shown upon analysis to contain more than eighty-eight per cent of watery fluid, or to contain less than twelve per cent of solids or three per cent of fats, it shall be deemed to be adulterated. [97 v. 119 § 4; 92 v. 149; 88 v. 12; 86 v. 229.] (1) Standard of milk herein vided a different standard. Op. provided may be enforced even Atty. Gen. (1916), p. 391. though a Charter City has pro- Sec. 12717. [Sale of adulterated milk.] Whoever sells, exchanges, or delivers, or has in his custody or possession with intent to sell or exchange, or exposes or offers for sale or exchange, adulterated milk, or milk to which water or any foreign substance has been added, or milk from cows fed on wet distillery waste or starch waste, or from cows kept in a dairy or place which has been declared to be in an unclean or unsanitary condition by certificate of any duly consti- tuted board of health or duly qualified health officer within the county in which said dairy is located, or from diseased or sick cows, shall be fined not less than fifty dollars nor more than two hundred dollars; and, for a second offense, shall be fined § 12718 THE OHIO MUNICIPAL CODE. 1196 not less than one hundred dollars nor more than three hundred dollars, or imprisoned in the jail or workhouse not less than thirty days nor more than sixty days. [99 v. 239 $1; 86 v. 229. ] . (1) . Evidence of authority of essary, see Diersing v. State, 29 C. agent who made the sale, whai nec- OC, 469; 9 C. C. (N. 8.) 214. Sec. 12718. [Penalty for subsequent offense.] For a sub- sequent offense, a person violating the next preceding section shall be fined fifty dollars and imprisoned in the jail or work- house not less than sixty days nor more than ninety days. [99 v. 239 §1; 86 v. 229.] Sec. 12784. [Jurisdiction of municipality to prevent water pollution.] Whoever pollutes a running stream, the water of which is used for domestic purposes by a municipality, by put- ting therein a putrid or offensive substance, injurious to health, shall be fined not less than five dollars nor more than five hundred dollars. The director of public service or board of trus- tees of public affairs of a municipal corporation shall enforce the provisions of this section. The jurisdiction of a municipal cor- poration to prevent the pollution of its water supply and to provide penalty therefor, shall extend twenty miles beyond the corporation limits. [R. S. See. 2433; 97 v. 135; 66 v. 209.] Sec. 12785. [Exposure in public having contagious disease; giving or selling articles in charge of such person; penalty.] Whoever, while suffering from smallpox, cholera, plague, yellow fever, diphtheria, membranous croup, scarlet fever or other dangerous contagious disease, wilfully or unlawfully exposes himself in a street, shop, inn, theater or other public place or publie conveyance, or, being in charge of a person so suffering, so exposes such sufferer, or gives, lends, sells, transmits or exposes without previous disinfection by the board of health bedding, clothing, rags, or other thing, which has been exposed to infection from such disease, or knowingly lets for hire a house, room or part of a house in which a per- son has been suffering from such disease, prior to the disin- fection thereof by the board of health, shall be fined not more 1197 BOARD OF HEALTH, § 12786 than one hundred dollars or imprisoned not more than ninety days, or both. [108 v. 236, 250; R. S. See. 2127; 95 v. 425; 66 v. 202.] Sec. 12786. [First offense.] A person violating the next preceding section shall not be imprisoned for the first offense, and the prosecution shall always be as and for the first offense unless the affidavit on which it is instituted contains a contrary allegation. [R.S. See. 2127; 95 v. 425; 66 v. 202.] Sec, 12787. [Failure to report infant with diseased eyes.] Whoever, being a midwife, nurse or relative in charge of an infant less than ten days old, fails within six hours after the appearance thereof, to report in writing to the physician in attendance upon the family, or if there be no such physician, to a health officer of the city, village or township in which such infant is living, or, in case there be no such officer, to a practitioner of medicine legally qualified to practice, that such infant’s eye is inflamed or swollen or shows an unnatural dis- charge, if that be the fact, shall be fined not less than five dollars nor more than one hundred dollars or imprisoned not less than thirty days nor more than six months, or both. [91 v. 75 §§ 1, 2.] XI. POLICE COURTS'* AND * MUNICIPAL COURTS. BILLS OF EXCEPTIONS. Sec. 10359. [Bills of exception.] In all cases before a jus- tice of the peace, mayor or police. judge, whether tried by jury or the justice, mayor or police judge, either party shall have the right to except to the decisions of the justice, mayor or police judge, upon any matters of law arising in the case.* [R.S. See. 6565; 99 v. 78; 95 v. 121; 93 v. 104; 90 v. 358; 80 v. 81; 66 v. 7.] (1) Police courts.—For gen- eral provisions relating to police courts and mayor’s courts, see §§ 4527-4599 in Part I. Plea in bar, judgment on, re- viewable, see Whitman v. State, 27 Caco 136. Review on weight of evidence. Fines.—For provision requiring fines and penalties assessed and col- lected by police court for offenses and misdemeanors’ prosecuted - in the name of the state, except por- tions allowed by the county com- missioners to judges, etc., to be paid to trustees of law library associa- tions, see § 3056, G. C. (2) Bills of exceptions.—See § 4551 and notes thereunder, in Part I. —See Koch vy. State, 73 O. 8. 131, IBY ( Applies to both civil and criminal cases.—See State v. Ran- sick, 62 O. S. 283; Koch v. State, 73 O. S. 131, 138; State v. Langen- stroer;, GTO SY Te Time of filing.—Need not be at- tached to petition in error, see State v. Langenstroer, 67 O. S. 7. Sec. 10360. [Exceptions, when to be presented.] The party objecting to the decision must except at the time,it is made and shall have ten days from the date of overruling the motion for a new trial, if such motion be made, or from the date on which the decision, judgment or sentence of the justice, mayor or police judge is entered to reduce his exceptions to writing and present them to the said court. [101 v. 94; R. S. Sec. 6565 ; 99 v. 78; 95 v. 121; 93 v. 104; 90 v. 358; 80 v. 81; 66 v. 7.] 1198 1199 POLICE COURTS. § 103861 Sec. 10361. [Grounds of objection in entry.] If the deci- sion objected to is entered on the record and the grounds of the objection appear in the entry, the exception may be taken by the party causing to be noted at the end thereof that he excepts. But when the decision is not entered on the record or the grounds of the objection do not sufficiently appear in the entry, or exception is to the decision of the court on a motion to direct a non-suit or to arrest the testimony from the jury, or for a new trial because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce this exception to writing, and present it to the trial justice, mayor or police judge, or his suc- cessor, within the time above limited. [R. S. Sec. 6565; 99 v. 78; 95 v. 121; 93 v. 104; 90 v. 358; 80 v. 81; 66 v. 7.] Sec. 10362. [Incorrect bill.] If such bill of exceptions be not correct he shall make the necessary corrections therein within three days after it is so presented, and when correct must sign and file it with the papers in the case, note such sign- ing and filing in his docket, and transmit the bill with the tran- script of his docket and original papers, within ten days of the date of such signing, to the clerk of the court of common pleas, who must file and enter it upon his trial docket as in other cases.1 [R. S. Sec. 6565; 99 v. 78; 95 v. 121; 93 v. 104; 90 v. 358; 80 v. 81; 66 v. 7.] (1) Failure of mayor to trans- mit bill of exceptions within re- quired time, will not prejudice rights of plaintiff in error. Capple v.. State, 17. Dec. 75: 4; N. P.. (N. 8.) 339. Where a case is tried before a justice of the peace, mayor or po- lice judge, and the defendant, dur- ing the progress of such trial, “excepts to the decisions of the justice of the peace, mayor or police judge upon matters of law arising in the case,” and a bill of exceptions is prepared, signed and filed in ac- cordance with Section 10359, et seq., it is not essential to the jurisdic- tion of the court of common pleas where such bill is filed for a review of said decisions, that the justice of the peace, mayor or police judge “note such signing and filing in his docket” as required by § 10361. The failure of the officer to make the notation in docket does not war- rant the court of common pleas in refusing to consider and pass upon the questions contained in the bill of exceptions. Burchard vy. State, 83 Ossi: § 10363 THE OHIO MUNICIPAL CODE. 1200 Sec. 10363. [Fees.] The party demanding such transcript if required, shall pay the fees of the justice, mayor or police judge, therefor in advance. [R. S. Sec. 6565; 99 v. 78; 95 v. 121; 93 v. 104; 90 v. 358; 80 v. 81; 66 v. 7.] JURISDICTION.? Sec, 13423. [Special jurisdiction of justices, police judges and mayors.] Justices of the peace, police judges and mayors of cities and villages shall have jurisdiction, within their respective counties, in all cases of violation of any law relating to: say 1. Adulteration or deception in the sale of dairy products and other food, drink, drugs and medicines. 2. The prevention of cruelty to animals and children. 3. The abandonment, non-support or ill treatment of a child by its parent. 4. The abandonment or ill treatment of a child under sixteen years of age by its guardian. 5. The employment of a child under fourteen years of age in public exhibitions or vocations injurious to health, life, morals, or which will cause or permit it to suffer un- necessary physical or mental pain. 6. The regulation, restriction or prohibition of the em- ployment of minors. 7. The torturing, unlawfully punishing, ill treating, or de- priving anyone of necessary food, clothing or shelter. 8. The selling, giving away or furnishing of intoxicat- ing liquors as a beverage, or keeping a place where such liquor is sold, given away or furnished, in violation of any law prohibiting such acts within the limits of a township and without the limits of a municipal corporation. 9. The shipping, selling, using, permitting the use of, branding or having unlawful quantities of illuminating oil for or in a mine. 10. The sale, shipment or adulteration of commercial feed stuffs. 11. The use of dust creating machinery in workshops and factories. 12. The conducting of a pharmacy, or retail drug or POLICE COURTS. 1201 § 13423 chemical store, or the dispensing or selling of drugs, chem- icals, poisons or pharmaceutical preparations therein. 13. The failure to place and keep in a sanitary condition a bakery, confectionery, creamery, dairy, dairy barn, milk depot, laboratory, hotel, restaurant, eating-house, packing- house, slaughter-house, ice cream factory, or place where a food product is manufactured, packed, stored, deposited, col- lected, prepared, produced jor sold for any purpose. 14. Offenses for violation of laws in relation to inspection of steam boilers, and of laws licensing steam engineers and boiler operators. 15. The prevention of short weighing and measuring and all violations of the weights and measures laws. 16. The violation of any law in relation to the practice of medicine or surgery, or any of its branches. [108 v. 40; 103 v. 539; R. S. Sees. 306a, 3718a; 100 v. 15, §4; 100 v. 64, § 6; 97 v. 397, §9; 99 v. 82, §3; 99 v. 507, §§ 77, 78; 95 v. 517; 94 v. 92; 91 v. 412; 90 v. 335; 85 v. 144; 81 v. 181.] (1) Peace warrants. — Juris- diction of mayor or police judge to issue peace warrants and procedure for examination of accused, see §§ 13463-13473, G. C. Prize fights, etc.—Jurisdiction of mayor or police judge to hear complaints upon arrest by marshal or police officer of person about to engage in prize fight, etc., and pro- cedure upon hearing, see §§ 13474- 13481, G. C. Search warrants.—Jurisdiction of mayor or police judge to issue search warrants and _ procedure thereupon, see §§ 13482-13491, G. C. Arrest, examination and bail. —dJurisdiction of mayor or police judge to issue process for the ap- prehension of persons charged with offenses, see § 13494 G. C. Jurisdiction of mayor or police judge to issue subpenas to bring witnesses before them, see § 13495 G. C, Procedure upon issuance of war- rant for arrest, see §§ 13496-13505, G. C. Examination of accused, see §§ 13506-13519, G. C. As to arrest of fugitive from other state, see §§ 13520-13522 G. C. Procedure as to giving and allow- ing bail, see §§ 13523-13553, G. C. (2) Validity. See Beamer v. State, 21 C. C. 440, 443. Jurisdiction of police judge or mayor, over offenses under this sec- tion, was formerly confined to of- fenses within his city or village, see State v. Peters, 67 O. S. 494. The provisions of the act es- tablishing a municipal court for Cincinnati, sections 41 and 43 constitute exceptions to this law restricting the jurisdiction of the justices mentioned. In re Hesse, 93 O. S. 230; affirming 24 ©. OC. (N. 8.) 349. § 13432 Offenses included.—Sale of poison under former statute not in- THE OHIO MUNICIPAL CODE, 1202 meaning of this section. State v. Ruedy, 57 O. S. 224. cluded. Marvin v. State, 5 N. P. Sale of milk not up to stand- 209. ard, see State v. Smith, 69 O. S. Coloring oleomargerine is an 196. adulteration of food within the Intoxicating liquors; see also §§ 6212-17f and 6212-18. PROCEDURE IN CRIMINAL CASES. Sec, 13432. [When imprisonment is a part of the punish- ment a jury shall be impaneled.] In prosecutions before a jus- tice, police judge or mayor, when imprisonment is a part of the punishment, if a trial by jury is not waived, the magistrate, not less than three days nor more than five days before the time fixed for trial, shall certify to the clerk of the court of common pleas of the county that such prosecution is pending before him.* [R. S. See. 3718a, 95 v. 517; 94 v. 92; 91 v. 412; 90 v. 335 ; 85 v. 144; 81 v. 181.] (1) Second offense.— Unless if trial is without jury. Simmons the affidavit charges particular case to be a second offense, imprison- ment can not be imposed and ac- cused may be tried without a jury. State v. Smith, 69 O. S. 196. See also Peters v. State, 8 N. P. 595; v. State, 75 O. S. 346. This section does not confer jurisdiction upon justices of the peace, police judges or mayors, but directs the method of proce- dure for obtaining a jury in 67 O. S. 494. Waiver of jury need not be in writing. Martindale v. State, 2 C. C, 2, but must affirmatively appear cases in which such magistrates have final jurisdiction. State, ex rel., v. Renz, 26 C. C. (N. 8.) 391; 5 Ohio App. 451. Sec. 13433. [Clerk’s duties.] Thereupon the clerk, in the presence of representatives of both parties, shall draw from the jury wheel or box containing the names of persons selected to serve as petit jurors in the court of common pleas in such county, twenty names which shall be drawn and counted in a like manner as for jurors in the court of common pleas. The clerk shall forthwith certify the names so drawn to the magis- trate, who, thereupon, shall issue to any constable, chief of police or marshal in the county, a venire containing the names of the persons to serve as jurors in the case and make due return thereof. [R.S. See. 3718a; 95 v. 517; 94 v. 92; 91 v. 412; 90 v. 335; 85 v. 144; 81 v. 181.] 1203 POLICE COURTS. § 138434 Sec. 13434, [Jurors.] The jurors shall be subject to like challenges as jurors in criminal cases, except capital cases, in the court of common pleas. If the venire is exhausted without obtaining the number required to fill the panel, the magistrate shall fill the panel with talesmen in the manner provided for criminal cases in the court of common pleas. [R. 8S. Sec. 3718a; 95 v. 517; 94 v. 92; 91 v. 412; 90 v. 335; 85 v. 144; 81 v. 181.] Sec. 13435. [Second or subsequent offense.] In such prose- cutions, where a different punishment is provided for a second or subsequent offense, the information or affidavit upon which the prosecution is based, must charge that it is the second or subsequent offense or the punishment shall be as for the first offense. [R.S. Sec. 3718a; 95 v. 517; 94 v. 92; 91 v. 412; 90 v. 335; 85 v. 144; 81 v. 181.] Sec. 13437. [New trial.] In such prosecutions, if there is a verdict for conviction, a new trial may be granted for like reasons and subject to like conditions as a new trial in criminal cases in the court of common pleas. [R. S. See. 3718a; 95 v. 517 ; 94 v. 92; 91 v. 412; 90 v. 335; 85 v. 144; 81 v. 181.] Sec. 13438. [Mileage of jurors; payment.] In such prose- cutions, the jurors shall be entitled to the same mileage and fees as in criminal cases in the court of common pleas, and they shall be paid from the county treasury upon the certifi- eate of the court. [109 v. 173; 108 v. 1208, 1221; R. S. See. o1 18a; 90'V. 517 ; 94 ¥. 92+ 91 v. 412% 90 Vv. 335-85. -v. 144» 81 ¥) 13h. | Sec. 13439. [Costs.] In such prosecutions, no costs shall be required to be advanced or secured by a person authorized by law to prosecute. [108 v. 1203, 1221; R. S. Sec. 3718a; 95 v. 517; 94 v. 92; 91 v. 412; 90 v. 335; 85 v. 144; 81 v. 181.] Sec. 13440. [Humane society may employ an attorney.] A humane society or its agent may employ an attorney to prose- cute the following eases, under this section, who shall be paid for his services out of the county treasury in such sum as the judge of the court of common pleas or the probate judge of § 11297-1 THE OHIO MUNICIPAL CODE. 1204 such county or the county commissioners thereof may approve as just and reasonable: 1. Violations of law relating to the prevention of cruelty to animals and children; 2. Violations of law a aKinae to the abandonment, non-sup- port or ill-treatment of a child by its parent; 3. Violations of law relating to the employment of a child under fourteen years of age in public exhibitions or vocations injurious to health, life or morals or which cause or permit such child to suffer unnecessary physical or mental pain; 4. Violations of law relating to neglect or refusal of adult to support destitute parent. [R. S. See. 3718a; 95 v. 517; 94 v. 92; 91 v. 412; 90 v. 3385; 85 v. 144; 81 v. 181.] MUNICIPAL COURTS.1 Sec. 11297-1. [Service of writs and process by registered mail; return of officer.] In addition to the methods of ser- vice and return of writs as provided by law, the judge or judges of the court of common pleas and probate judge in each of the counties of the state or of the municipal court of any city may, by rule, provide for the service of writs or process by mail registered or otherwise and for the service of persons summoned for jury duty by mail, registered or other- wise. When provisions for service by mail, registered or otherwise, is so made, a return of the sheriff or other officer or person charged by law with the duty of serving said writ or process, that a true copy of the writ or process was de- posited in the mail registered, or otherwise shall be proof of residence service at the address on the envelope containing such writ or process; provided that such residence be the correct residence address of the party to be served and that such envelope be not returned by the postal authorities as un- delivered. In the case of a corporation, domestic or foreign, or a partnership, or an insurance company a return of the sheriff or other officer or person charged by law with the duty of serving said writ or process, that a true copy of the writ or process was deposited in the mail enclosed in an envelope registered or otherwise addressed to the cor- poration, or partnership, or insurance company at its office 1205 MUNICIPAL COURTS. § 11297-1 or place where it regularly receives mail, shall be proof of Service, provided that such address be the office of the cor- poration, or partnership, or insurance company, or the place where the corporation, or partnership, or insurance company regularly receives mail and that such envelope be not re- turned by the postal authorities as undelivered; and pro- vided further that, in any case any person requesting service by sheriff, or bailiff, shall be*entitled thereto. [107 v. 653.] (1) Municipal courts.—By spe- cial acts, municipal courts and special police courts have been established in a number of cities. For such acts see the following sections of the general code: Akron, §§ 1579-497 to 1579-549. Alliance, §§ 1579-195 to 1579-232. Ashtabula, §§ 146985 to 14695. Canton, §§ 14696 to 14705. Cincinnati, §§ 1558-1 to 1558-45a. Cleveland, §§ 1579-1 to 1579-45i. Columbus, §§ 1558-46 to 1558- 93b. Dayton, §§ 1579-46 to 1579-89. Hamilton, §§1579-90 to 1579- 126a. Lima, §§ 14740-24 to 14740-34. Lorain, §§ 1579-601 to 1579-641. Massillon, §§ 1579-416 to 1579- 458, Middletown, §§ 1579-183 to 1579- 194. Newark, §§ 1579-367 to 1579-415. Piqua, §§ 1579-560 to 1579-600. Portsmouth, §§ 1579-459 to 1579- 496. Sandusky, §§ 1579-233 to 1579- 275. Toledo, §§ 1579-276 to 1579-329. Youngstown, §§ 1579-127 to 1579- 182. Zanesville, §§ 1579-330 to 1579- 366. SORE PUBLIC BUILDINGS AND INSPEC- TION OF BUILDINGS. Sec. 1031. [Inspection of schoolhouses and other build- ings.] The department of industrial relations shall cause to be inspected all schoolhouses, colleges, opera houses, halls, theaters, churches, infirmaries, children’s homes, hospitals, medical institutes, asylums and other buildings used for the assemblage or betterment of people in the state. Such inspection shall be made with special reference to precautions for the prevention of fires, the provision of fire escapes, exits, emergency exits, hallways, air-space, and such other matters which relate to the health and safety of those occupying, or assembled in, such structures.t [110 v. 280; 99 v. 232, §1.] (1) Validity.—Act of April 28, Board v. Sawyer, 7 N. P. (N.S.) 1908 (99 O. I. 232), held valid. 401; 19 Dec. 1. Sec. 1032. [Written report of inspection filed; recommen- dations made to owner, and published.] Upon inspection of such structure, the inspector shall file with the department of industrial relations a written report of the condition thereof. If it is found that necessary precautions for the prevention of fire or other disaster have not been taken or that, means for the safe and speedy egress of persons as- sembled therein have not been provided, such report shall specify what appliances, additions or alterations are neces- sary therefor. Thereupon the department of industrial rela- tions shall issue an order in writing stating what necessary appliances, additions or alterations shall be added to or made in such structure and shall send a copy of such order to the owner or persons having control of such structure and thereafter ° shall publish in some newspaper of general cir- culation in the neighborhood of such structure, a copy of such order or a brief statement of the contents of such order. 1206 1207 INSPECTION OF BUILDINGS. § 1032-1 If such structure is located in a municipality a copy of such order shall be mailed to the mayor or chief executive there- of, otherwise a copy of such order shall be mailed to the prosecuting attorney of such county. [110 v. 280, 281; 99 v. 232.]! Sec. 1032-1. [Appeal from order; procedure.] Any board of education, board of trustees, board of county commis- sioners, council of a city or village, city commission, or owner or person having control of such structure, may ap- peal from such order to the court of common pleas of the county in which such structure is situated, by filing an ap- peal with the clerk of such court within twenty (20) days after such publication of a copy of such order or such brief statement. The clerk of said court shall forthwith notify the department of the filing of such appeal. The department of | industrial relations shall be plaintiff and the appellant shall be defendant. Within twenty (20) days after the filing of such appeal the department of industrial relations shall make a complete transcript of the proceedings had before it and certify the same together with all the original papers filed in its office and transmit them to the clerk of said court. Within ten days after filing such transcript the depart- ment of industrial relations shall file a petition in the ordinary form against such appellant as defendant and further pleading shall be had in such ease according to the rules of civil procedure. The court shall hear the matter upon such evidence as may be introduced by either party, and determine the right of the appellant. If the court find from the evidence that such order should be set aside, such order shall thereafter be null and void and of no ef- fect. If the court find in favor of such department of in- dustrial relations and that such order should not be set aside, such order shall be continued in full force and effect. So far as consistent with the rights of others such appeal shall by the trial court be given precedence over other matters and the decision of such common pleas court shall be final. [110 v. 280, 281.] Sec. 1033. [When use of structure is prohibited.] If no appeal is taken or if the court sustains the order, the mayor ? § 1034 THE OHIO MUNICIPAL CODE. 1208 or chief executive with the aid of the police or the prosecu- ting attorney with the aid of the sheriff, as the case may be, shall prevent the use of such structure for public assemblage until the appliances, additions or alterations required by such notice have been added to or made in such structure. [110 v. 280, 282; 99 v. 233.] Sec. 1034. [Owner or agent shall comply with notice.} Upon receipt of such notice, if no appeal be taken or if the court shall find in favor of the department of industrial rele- tions the owner or person in control of such structure shall comply with every detail embodied therein, and upon comple- tion thereof report such fact in writing to the department of industrial relations and to such mayor or prosecuting at- ‘torney. [110 v. 280, 282; 99 v. 233.] Sec. 1035. [Approval of plans.] The plans for the erec- tion of such structure, and for any alterations in or additions to any structure, shall be approved by the department of in- dustrial relations, except in municipalities having regulariy organized building inspection departments, in which ease the plans shall be approved by such department. [110 v. 280, 282: 99 ov. 2228)) Sec. 1036. [Penalty.] Whoever, being an architect, build- er or other person, alters the plans so approved or fails to construct or alter a building in accordance with such plans without the consent of the department that approved them, or without the court of common pleas finding that such order should be set aside, shall be fined not less than five hundred dollars nor more than one thousand dollars or im- prisoned in the county jail not less than thirty days nor more than one year, or both. [110 v. 280, 282; 99 v. 233.] Sec. 1037. [Penalty.] Whoever, being a person, firm or corporation or member of a board and being the owner or in control of any building mentioned in section ten hundred and thirty-one of this chapter, uses or permits the use of such building in violation of any order prohibiting its use issued as provided by law, unless the common pleas court 1209 INSPECTION OF BUILDINGS. § 2419-2 has made a finding setting aside such order, or fails to com- ply with an order so issued relating to the change, improve- ment or repair of such building, unless the common pleas court shall make a finding setting aside such order, shall be fined not less than ten dollars nor more than one hundred dollars, and each day that such use or failure continues shall constitute a separate offense. [110 v. 280, 282; 99 v. 234..]| Sec. 2419-2. [County may lease public buildings to mu- nicipality.] The county commissioners may by agreement with the city council, the director of public safety or his suc- cessor or the person, persons or board charged with the erec- tion, maintenance or repair of police stations, jails, police and municipal court houses and court rooms, lease to any mu- nicipal corporation in said county suitable quarters in county buildings (erected or to be erected) for municipal courts, police stations, police courts, prosecutors’ offices, probation- ers’ offices and other similar municipal purposes. Whenever the commissioners of any county have made an agreement with a municipal corporation as herein provided, such com- missioners may erect county building anticipating and mak- ing provision for such municipal quarters. [107 v. 502, 503.] Sec, 3399. [Village and township may jointly enlarge, im- prove or erect public building.]’ The electors of a township in which a village is situated, and the electors of such village may if both so determine, as hereinafter provided, unite in the enlargement, improvement or erection of a public build- ing. [97 v. 483 § 1.] (1) City and township have no city hall and township house. authority to unite for erection of Op. Atty. Gen. (1916), p. 1293. Sec. 3400, [Application to mayor and township trustees. ] For such purpose an application shall be made to and filed with the trustees of the township, signed by not less than twenty-five resident free-holders of such township, who are not residents of the village, and application shall also be made to and filed with the mayor of the village, signed by § 3401. THE OHIO MUNICIPAL CODE. 1210 not less than twenty-five resident free-holders of the village. [97 v. 483 § 2.] Sec, 3401. [Submission of question of tax to a vote.] At the next general township and municipal election after such applications have been so filed, the question as to whether or not a tax shall be levied upon all the property subject to taxation in such township and village for the enlargement, improvement or erection of a public building, shall be sub- mitted to the electors of such township and of such village. Ten days’ notice that the question will be submitted to the electors, shall be given by the trustees of the township and the mayor of the village, in a newspaper of general circulation in such township and village, which notice shall state the maxi- mum amount of money proposed to be used for such purpose, and the rate of tax proposed to be levied. [97 v. 484 § 3.] Sec. 3402. [Two-third vote necessary.] If at such election two-thirds of the electors of the township and of the village voting, vote in favor of such improvement, the trustees of such township and the council of the village shall jointly take such action as is necessary to carry out such improvement. [97 v. 484 § 4.] Sec. 12598. [Asbestos or steel curtain to be provided; proscenium wall.] Whoever, being the owner or having own- nership or control of an opera house, theater or hall having a seating capacity of seven hundred and fifty or more, com- puting each seat space at twenty by thirty inches, shall be fined not less than twenty-five dollars nor more than one thousand dollars if he permits it to be used for public assem- blies without it is satisfactory to the mayor, chief of fire department and building inspector of the municipality in which it is located, or, if such municipality has no chief of fire department or building inspector, it is satisfactory to the mayor and two members of council, or, if located in a town- ship, is satisfactory to the trustees thereof, in the following respects : 1. There must be an asbestos or steel stage curtain of standard quality that will stand a fire test, and it shall lap 1211 INSPESTION OF BUILDINGS. § 12600-274 over the stage opening at the sides and top not less than twelve inches; 2. Iron gas piping not less than one and one-half inches inside diameter, must be: attached to said curtain at top and bottom for its entire width; 3. All guide wires of said curtain must be made of steel and not less than one-fourth of an inch in diameter ; 4. There must be a proscenium wall in such building, of brick or other fireproof material, and every opening therein except the stage opening must be provided with fireproof doors. [97 v. 265 § 3.] Sec. 12600-274. [Alterations.] [§ 2.] It shall be unlawful for any owner or owners, officers, board, committee or other person to construct, erect, build, equip or cause to be con- structed, erected, built or equipped any opera house, hall, theater, church, schoolhouse, college, academy, seminary, in- firmary, sanitarium, children’s home, hospital, medical insti- tute, asylum, memorial building, armory, assembly hall or other building used for the assemblage or betterment of peo- ple in any municipal corporation, county or township in this state, or to make any addition thereto or alteration thereof, except in case of repairs for maintenance without affecting the construction, sanitation, safety or other vital feature of said building or structure, without complying with the re- quirements and provisions relating thereto contained in this act. [102 v. 586.] (1) Ohio State Building Code. alteration, etc., of buildings, will be —The provisions of the Ohio State found in 102 Ohio Laws, pages 586 Building Code, providing regula- to 728 (§§12600-1 to 12600-282, tions for the construction, repair, General Code). Sec. 12600-275. [Violations.] [§ 3.] It shall be unlawful for any architect, builder, civil engineer, plumber, carpenter, mason, contractor, sub-contractor, foreman or employe to violate or assist in violating any of the provisions contained in this act. [102 v. 586.] Sec. 12600-276. [Each section independent.] [§4.] Each section of this act and every part of each section is hereby § 12600-277 THE OHIO MUNICIPAL CODE. 1219 declared to be independent sections and parts of sections, and the holding of any section or part thereof to be void and ineffective for any cause shall not be deemed to affect any other section or part thereof. [102 -v. 586.] Sec. 12600-277. [Council may make further regulations. ] Nothing herein contained shall be construed to limit the council of municipalities from making further and additional regulations, not in conflict with any of the provisions of this chapter or with the rules and regulations of the board of building standards determining equivalents, nor shall the provisions of this chapter be construed to modify or repeal any portion of any building code adopted by a municipal corporation and now in force which are not in direct conflict with the provisions of this chapter, or with such rules and regulations. [110 v. 356; 102 v. 587.] Sec. 12600-278. [Buildings and structures to which act does not apply.] The provisions of this act shall not apply to the construction or erection of any public building or any addition thereto or alteration thereof, the plans and specifi- . cations of which have been heretofore submitted to and ap- proved by the chief inspector of workshops and factories; nor shall they apply to the construction, erection or equip- ment of any public building, addition thereto or alteration thereof, where any lot or land has been purchased for the erec- tion or equipment of such public building or where the contract for the construction, erection or equipping of which has been let or entered into prior to the date at which this act takes effect; nor shall the provisions prescribing the minimum dis- tance at which buildings or structures, or parts thereof, shall be located from any lot line, or the provisions relating to open courts and fireproof passage-ways, apply when the pro- visions of this act are, or can be complied with by or with the use of adjoining property, and when such adjoining property affords the widths and areas as prescribed by this act, and is available for the purposes intended, and when such adjoining property is so situated, used, dedicated or deeded, as to preclude the erection of any building or struc- ture or part thereof on the widths and areas so used, during 1213 INSPECTION OF BUILDINGS. § 12600-279 the existence of the building or structure erected under the provisions of this act. [106 v. 441; 102 v. 587.] Sec. 12600-279. [Penalty.] Whoever being the owner or having the control as an officer, or as a member of a board or committee or otherwise of any opera house, hall theater, church, school house, college, academy, seminary, infirmary, sanitarium, children’s home, hospital, medicine institute, asylum, memorial buildings, armory, assembly hall or other building forthe assemblage or betterment of people in any municipal corporation, township or county in this state, violates any of the provisions of the foregoing act or fails to conform to any of the provisions thereof, or fails to obey any order of the state fire marshal, unless the court shall sustain the appeal, the department of industrial relations, unless on appeal the court shall set aside such order, or building inspector or commissioner in cities hav- ing a building inspection department, or the state board of health in relation to the matters and things in this act contained shall be guilty of a misdemeanor and upon con- viction thereof shall be fined not more than one thousand dollars and stand committed until said fine and costs be paid or secured to be paid or until otherwise discharged by the due process of law. [110 v. 280, 282; 102 v. 586. | Sec, 12600-280. [Chapter penalties.] [ § 2.] Any architect, civil engineer, builder, plumber, carpenter, mason, contractor, sub-contractor, foreman, or employe who shall violate or assist in the violation of any of the provisions of this act or of any order issued thereunder shall be guilty of a misde- meanor and upon conviction thereof shall be fined not more than one thousand dollars and to stand committed until said fine and costs are paid or secured to be paid or until other- wise discharged by due process of law. [102 v. 588. | Sec. 12600-281. [Specific officers’ duty to enforce act. ] [§1.] It shall be the duty of the state fire marshal or fire chief of municipalities having fire departments to enforce all the provisions herein contained relating to fire prevention. It shall be the duty of the chief inspector of workshops and § 12600-282 THE OHIO MUNICIPAL CODE. 1214 factories or building inspector, or commissioner of buildings in municipalities having building departments to enforce all the provisions herein contained for the construction, arrange- ment and erection of all public buildings or parts thereof, including the sanitary condition of the same, in relation to the heating and ventilation thereof. It shall be the duty of the state board of health or building inspector or commissioner, or health departments of munici- palities having building or health departments to enforce all the provisions in this act contained, in relation and pertaining to sanitary plumbing. But nothing herein contained shall be construed to exempt any other officer or department from the obligation of enforcing all existing laws in reference to this act. [102 v. 586.] Sec. 12600-282. [Jurisdiction.] [§ 7.] A justice of the peace, mayor or police judge shall have final jurisdiction within his county in a prosecution for a violation of any pro- vision of the foregoing act. [102 vy. 587.] LT. _ MISCELLANEOUS STATUTES. ADVERTISING. Sec. 6251. [Rates for legal advertising.] Publishers of newspapers may charge and receive for the publication of advertisements,’ notices and proclamations required to be published by a public officer of the state, county, city, village, township, school, benevolent or other public institution, or by a trustee, assignee, executor or administrator, the following sums, except where the rate is otherwise fixed by law, to-wit: For the first insertion, one dollar for each square, and for each additional insertion authorized by law or the person or- dering the insertion, fifty cents for each square. Fractional squares shall be estimated at a like rate for space occupied. In advertisements containing tabular? or rule work fifty per cent may be charged in addition to the foregoing rates. Pro- viding, however, newspapers having a circulation of over twenty-five thousand shall charge and receive for such ad- vertisements, notices and proclamations, rates charged on an- nual contracts by them for like amount of space to other ad- vertisers who advertise in its general display advertising col- umns; and the publisher shall make and file with his bill before its payment, an affidavit, that the newspaper had a bona fide circulation of more than twenty-five thousand at the time the advertisement, notice or proclamation was published, and that the price charged in the bill for same did not exceed the rates herein provided for such advertisement, notice or proclamation. [109 v. 247; 108 v. 475; R. 8. See. 4366; 73 We'T5, | (1) Advertisement. — Meaning (2) Tabular work. — Meaning of. See Murray v. Auglaize Co., 13 of. Jb. Dee. 723. Sec, 6254. [What constitutes a square; an em.] A square shall be a space occupied by two hundred and forty ems of 1215 § 6255 THE OHIO MUNICIPAL CODE. 1216 the type used in printing such advertisements. Legal adver- tising shall be set up in a compact form, without unnecessary spaces, blanks or headlines and printed in type not smaller than nonpareil. The type of whatever size used must be of such proportions that the body of the capital letter M be no wider than it is high and all other letters and characters in proportion. Except as may be done under sections 1695 to 1697, inclusive, of the General Code, all legal advertisements or notices shall be printed in newspapers published in the English language only. [108 v. 475; R. 8. See. 43869; 77 vy. AO 73e¥ a Da ‘Sec. 6255. [Sufficient publication of legal notice defined. ] Whenever any legal publication is required by law to be made in a newspaper or newspapers published or printed in a municipality, county, or other political subdivision, the newspaper or newspapers used shall have at least one side thereof printed in such municipality, county, or other polit- ical subdivision; and whenever any legal publication is re- quired by law to be made in a newspaper or newspapers of general circulation in a municipality, county, or other polt- ical subdivision, without further restriction or limitation upon a selection of the newspaper to be used, such publication shall be made in a newspaper or newspapers at least one side of which is printed in such municipality, county, or other political subdivision, unless there be no such newspaper or newspapers so printed, in which event, only, such publication shall be made in any newspaper or newspapers of general circulation therein. [106 v. 492; 102 v. 487; R. S. See. 4370; 74 v. 208.] BONDS. Sec, 2295-1. [Endorsement.] That all bonds hereafter is- sued, by any county, city or city school district within this state, except those issues permanently held by the sinking fund trustees of the municipality issuing same, may have, endorsed thereon, a certificate attesting the genuineness of the signa- tures thereto, signed by a registrar legally authorized and qualified to act therein. [101 v. 256.] 1217 “MISCELLANEOUS STATUTES. - § 2295-2 ~ Sec, 2295-2. [Registrar; appointment and compensation.] That every county, city or city school district within this state having the power to issue such bonds, shall have the power to employ such registrar, the compensation of which together with all proper expenses incident to such certification shall be paid on the allowance of such authority out of the county, eity or city school district treasury or fund benefited or to be benefited by the sale of such bonds, as the case may be. [101 v.-256. | Sec, 2295-3. [Certified transcript of proceedings required to be furnished successful bidder for bonds by certain offi- cers.] That it shall be the duty of the clerk, or other. officer having charge of the minutes of the council of any municipal corporation, board of county commissioners, board of educa. tion, township trustees, or other district or political subdi- visions of this state, that now has or may hereafter have, the power to issue bonds, to furnish to the successful bidder for said bonds, a true transcript certified by him of all ordi- nances, resolutions, notices, and other proceedings had with reference to the issuance of said bonds, including a state- ment of the character of the meetings at which said proceed- ings were had, the number of members present, and such other information from the records as may be necessary to determine the regularity and validity of the issuance of said bonds; that it shall be the duty of the auditor or other off- cer, having charge of the accounts of said corporation or political subdivision, to attach thereto a true and correct Statement certified by him of the indebtedness, and, of the amount of the tax duplicate thereof, and such other informa- tion as will show whether or not said bond issue is within any debt or tax limitation imposed by law. [103 v. 179.] Sec. 2295-4, [Penalty for certifying false transcript or statement.] Any such clerk or officer, or any deputy or sub- ordinate thereof, who shall knowingly make or certify a false transcript or statement in respect to any of the matters here- inabove set forth, shall be guilty of a misdemeanor and be fined not less than twenty-five ($25.00) dollars, nor more than five hundred ($500.00) dollars, or imprisoned not ex- ceeding one year, or both. [103 v. 179.] § 2295-5 THE OHIO MUNICIPAL CODE. 1218 Sec. 2295-5. [Reissue of lost or destroyed bonds or cer- tificates.] Whenever bonds, notes, checks or certificates of indebtedness, issued by a municipal corporation, school dis- trict, county, township, or other political sub-division or taxing district of this state, are lost or destroyed, said cor- poration, school district, county, township, subdivision or district may re-issue to the holder or holders duplicates thereof in the same form and signed as the original obliga- tions were signed, which obligations so issued shall show plainly upon its face as being a duplicate of such lost bond, note, check or certificate, upon proof of such loss or destruc- tion and upon being furnished with a bond of indemnity against all loss or liability for or on account of the obliga- tions so lost or destroyed. [110 v. 120; 106 v. 303.] Sec. 2295-6. [Definition of terms used.] Definitions—The following definitions shall be applied to the terms used in this act? (a) ‘Political subdivision’’ shall mean any political sub- division or taxing district of the state incurring indebtedness or issuing bonds on the general credit of the political subdi- vision or taxing district ; (b) ‘‘Charter municipality’’ shall mean any municipality which at the time of incurring any indebtedness or issuing any bonds is operating under a charter framed and adopted under the provisions of Article XVIII of the constitution of Ohio ; (c) ‘‘Fiseal officer,’ in the case of a county, shall be the county auditor; in the case of a charter municipality, such officer as by virtue of the charter has the duties and func- tions provided in section 4284 of the General Code of Ohio; in the case of any other city, the city auditor, and of any other village, the village clerk; in the ease of a school district, the clerk of the board of education; in the case of a township, the auditor of the county in which such township is located; in the case of any other political subdivision, the officer who by law performs the duties and functions similar to those of a city auditor; (d) ‘‘Serial bonds’’ are those which provide for the retire- 1219 MISCELLANEOUS STATUTES. § 2295-7 ment of the indebtedness by means of installment maturities in lieu of a sinking fund; (e) The ‘‘bond-issuing authority’’ shall, in the case of any bond issue, be the county commissioners, board of education, township trustees, city council or other board or officer who, under the provisions of law or charter, has the function of de- termining upon the issuance of such bonds. [109 v. 336, §1.] 99 (1) Act referred to.—The refer- ‘ence is to the ‘‘Griswold Act’’, 109 O. L. 336. Sec. 2295-7. [Subdivisions shall not incur indebtedness for current operating expenses.]' | No county, school district, town- ship, municipality, including charter municipalities, or other political subdivision shall, with the exceptions hereinafter named, create or incur any indebtedness for current operat- ing expense. The acquisition or construction of any property, asset or improvement with an estimated life or usefulness of less than five years shall be deemed current expense. This prohibition shall not apply to borrowing as provided by law in anticipation of collection of special assessments or in an- ticipation of special assessments or current revenues or for defraying the expenses of an extraordinary epidemic of dis- ease or emergency expenses made necessary by sudden casualty which could not have reasonably been foreseen or for defi- clencies created by enjoined taxes as provided in section 9659-1 of the General Code or for paying final judgments upon non-contractual obligations as provided in section 4 thereof. The estimate of the life of the property, asset or im- provement proposed to be acquired or constructed from the proceeds of any bonds, shall be made in any case by the fiscal officer of the subdivision and certified by him to the bond- issuing authority and shall be binding upon such authority. [109 v. 336, § 2.] (1) “Current operating expense’ construed. See Op. Atty. Gen. (1921), p. 1166. Sec, 2295-8. [When bonds may be issued to pay final judg- ment.] When the fiscal officer of any county or other polit- ical subdivision, including charter municipalities, certifies to the bond-issuing authority that, within the limits of its § 2295-9 THE OHIO. MUNICIPAL CODE. 1220. funds available for the purpose, the subdivision is unable, with due consideration of the best interests of the subdivi- sion, to pay a final judgment rendered against the subdivi- sion in an action for personal injuries or based on other non-contractual obligation, then such subdivision may issue: bonds, in an amount not exceeding the amount of the judg- ment and carrying interest not to exceed six per cent, for the purpose of providing. funds. with which to pay such final judgment. Providing. also that when the fiscal officer of any such subdivision certifies to the bond issuing author- ity that, within the limits of its funds available for the purpose, the subdivision is unable with due consideration of the best interests of the subdivision, to pay a final judg- ment rendered against the subdivision in an action based up- on an obligation of a contractual nature incurred prior to the fourteenth day of May, 1921, and reduced to judgment prior to the passage of this act, then said political subdi- vision may issue bonds in an amount not exceeding the amount of the judgment and the interest due thereon, and carrying interest not to exceed six per cent for the pur- pose of providing funds with which to pay such final Judgment. [110 v. 160; 109 v. 336, 387, § 4.] Sec. 2295-9. [Periods beyond which, bonds issued by sub- divisions may not run; classification.]! That the maturities of bonds issued by counties and other political subdivisions, including charter municipalities, shall not extend beyond the following limitations as specified in the following classifica- tion, the period to be measured from a date twelve months prior to the date of the earliest maturity, if maturity in an- nual installments, or six months prior thereto, if maturing in semi-annual installments: Bonds issued for— Class (a) The acquisition of real estate or easements or other interests in real estate, grade crossing elimination, and flood prevention, thirty years; Class (b) The construction or improvement of fire-proof buildings or other structur es, widening of roads, highways, streets or alleys, general waterworks improvements, sanitary te 1221 . MISCELLANEOUS STATUTES. § 2295-10 and storm sewers, sewage disposal works, and bridges, twenty- five years; Class (ec) The construction or improvement of non-fireproof -buildings or other structure, electric light plant and equip- ment, police and fire alarm and telegraph ‘systems, fifteen years ; Class (d) Waterworks meters, fire apparatus, road rollers, furniture and furnishings, machinery in garbage disposal plant, landscape planting, playground apparatus, sidewalks, eurbs, gutters, and the construction, reconstruction, resurfac- ing, grading, or drainage of roads, highways, streets, or al- leys, ten years; Class (e) Motor vehicles other than fire apparatus, wagons and horses, bonds issued to pay judgments for per- sonal injuries or other non-contractual obligations and also for defraying the expenses of an extraordinary epidemic of disease, five years; Class (f) Lighting, sprinkling, sweeping or cleaning of streets or other public places or other service for which municipal corporations or other political subdivisions are authorized by law to levy special assessments, one year; Class (g) Purposes not included-in the foregoing classes, such number of years not exceeding thirty as is the estimated period of usefulness of the asset, improvement, or other pur- pose, such estimate to be made by the fiscal officer ; Class (h) A single bond issue for a purpose which includes two or more of the foregoing classes, the average number of years of usefulness as measured by the weighted average of the amounts proposed to be expended for said several classes in accordance with above table of maturities; such estimating and calculation of average to be made by the fiscal officer. [110 v. 456; 109 v. 336, 338, § 6.] (1) When not applicable——This had not been sold until after that section held not applicable where date and such bonds may be made the legislation authorizing street to mature more than ten years after improvement including the authori- their date. State ex rel. v. Chandler, zation of the bonds had been passed 105 O. S. 499. p-ior to Jan. 1, 1922, but the bonds Sec, 2295-10. [Certification of maximum indebtedness by fiscal officer before passage of ordinance, resolution, etc., for § 2295-11 THE OHIO MUNICIPAL CODE. 1222 issue of bonds; contents of certification.] Before any reso- lution, ordinance or other measure providing for the issu- ance of bonds, notes or other evidences of indebtedness of any county or other political subdivision, including charter municipalities, is passed or adopted, the fiscal officer thereof shall certify to the bond-issuing authority the maximum ma- turity of such bonds or indebtedness, caleulated in accordance with the provisions of the foregoing section, and no such bonds, notes or other evidences of indebtedness shall be au- thorized or issued with maturities extending beyond the ma- turities as thus certified by such fiscal officer. Where the proposed indebtedness falls within class (h), such certifica- tion shall also contain a schedule of the respective amounts of the proposed bonds falling within each of classes (a) to (g) inclusive. The amount expended from the proceeds of the bonds for any purpose or purposes falling within any class shall not exceed the amount allotted in said schedule to said class; provided, however, that whenever the bond-issuing authority deems such transfer to be necessary for the ecarry- ing out of the purpose of the bond issue, then such authority may transfer any unexpended portion of the amount allotted to any class from the class to which it was originally so allotted to any class with a longer maturity and, upon such transfer, the amount expended for any purpose or purposes falling within the class to which such transfer has been authorized may include the amount so transferred; but no transfer may be made from any class to a class with a shorter maturity. Each such certificate shall state whether or not the asset, property, construction or improvement has an estimated life or usefulness of at least five years; and the provisions of section 2295-7 of the General Code shall apply to any asset, property, construction or improvement certified as having an estimated life or usefulness of less than five years. [110 v. 456; 109 v. 336.] Sec, 2295-11. [What cost of construction may include.] The cost of construction of any building, utility or improve- ment may be construed to include interest payable during con- struction on bonds issued for such construction. A sum not to exceed one-year’s interest on any bond issue may be included 1 1293 MISCELLANEOUS STATUTES. § 2295-12 in the amount of the issue to the extent necessary to care for interest maturing previous to the receipt of the taxes or as- sessments from which such interest is to be ultimately paid. [109 v. 336, 348, § 13b.] Sec. 2295-12. [General provisions relating to the issue of bonds.] All bonds hereafter issued by any county, munici- pality, including charter municipalities, school district, town- ship or other political subdivision, shall be serial bonds ma- turing? in substantially equal semi-annual or annual install- ments. If issued with semi-annual maturities, the first in- stallment shall mature not earlier than the date fixed by law for the semi-annual provisional tax settlement between the county treasurer and the political subdivision or taxing dis- trict next following the time fixed by law for the inclusion of a tax for such issue in the annual budget by the county. auditor as provided by law; and if issued with annual ma- turities, the first installment shall mature not earlier than the date fixed by law for the final annual tax settlement next following the said time for said inclusion. In either case the first installment shall mature not later than eleven months after said earliest date thereof. [110 v. 459; 109 v. 344. | (1) Time of earliest maturity.— The tax referred to is to be included in the budget by the county auditor (G. C. § 5649-1b) and laid before the budget commissioners on the first Monday in August (§ 5649-8b). The settlements with the local sub- division are to be made immediately following the settlements between the county auditor and county treasurer (§ 2689); the county treasurer makes his partial settle- ment with the county auditor on or before February 15th, and his final settlement on or before August 10th (§ 2683). In determining the time for earliest and latest maturities for bonds of a given class, these dates should be borne in mind, as well as the provisions of § 2295-9. The certificate of the fiscal officer required by §§ 2295-7 and 2295-10 should be made prior to the passage of the ordinance. See form of this certificate preceding forms of ordinances under §§ 3825 and 3939 ie beartels Sec. 2295-13. [‘‘Judgment fund,’’ transfer to.] All moneys collected from. taxes or other sources for the payment of final judgments against the political subdivision (other than condemnation of property cases) shall go into a separate fund of the subdivision, to be known as ‘‘judgment fund.’”! § 2295-14 ‘THE OHIO MUNICIPAL CODE. 1224 The treasurer of the political subdivision shall receive all taxes, assessments and moneys collected for the payment: of final judgments against the political subdivision or proceeds of bonds issued for such purpose and invest and disburse them in the manner provided by law and shall have charge of and provide for the payment of all such judgments. [110 v. 456, 460; 109 v. 345.] (1) Investment of proceeds of the judgment fund levy. See Op. Atty. Gen. (1922), p. 593. , Sec. 2295-14. [Sinking fund officers continue to exercise powers until outstanding bonds are retired; thereafter pow- ers transferred to treasurer.] The board of sinking fund trustees of any county or municipality or the board of sink- ing fund commissioners of any school district shall continue to exercise the powers provided in sections 2976-18 to 2976-27 inclusive, 4511 to 4522 inclusive, 3932 and 7613 to 7619 in- elusive of the General Code and all other provisions of law relating to its powers, until all outstanding bonds of such county, municipality or school district issued previous to January 1, 1922, shall have been paid; and thereupon it shall be deemed to be abolished and its functions and powers relating to the purchase and sale of securities, receipt, de- posit and investment of taxes, assessments and other funds raised for the payment of bonds and funded debts, the ap- pleation of such funds to the payment of bonds and other indebtedness and all its other powers and functions as set forth in said provisions of law as amended in this act shall be deemed to be transferred to the treasurer of the county, municipality or school district, and all moneys, securities and other assets then in the custody and possession of such board shall be transferred and delivered to such treasurer. Thereafter all said moneys, securities and assets and all moneys received by the county, municipality or school dis- trict for the payment of the interest and principal of its bonds or other funded debts and all inheritance taxes and all other taxes and revenues which were theretofore payable, by virtue of provision of law, into sinking fund shall be paid to its treasurer and placed and held by him in a sepa- rate fund to be known as ‘‘bond payment fund’’ and, sub- 1225 MISCELLANEOUS STATUTES. § 2295-15 ject to the provisions of law relating to transfer to other funds, said fund shall bé applied by him to the purposes for which the sinking fund had theretofore been applicable. [110 v. 456, 460; 109 v. 347.] Sec. 2295-15. [Powers of trustees of railways, regarding bonds and sinking fund.] None of the provisions of section 2295-9 or 2295-12 shall apply to the bonds issued or to be is- sued on account of the line or railway constructed under the authority of the ‘‘Act relating to cities of the first class, hav- ing a population exceeding one hundred and fifty thousand inhabitants’’, passed May 4, 1869, and acts supplementary thereto and amendatory thereof; provided, however, that the issuance of sinking fund bonds on account of the said railway shall not affect or postpone the abolition of the sinking fund trustees of the city as provided in section 2295- 14 of the General Code and after such abolition the rentals accruing on account of said railway shall be paid to the treasurer of the city and said treasurer shall maintain and apply the sinking fund charges accruing upon bonds issued for such purposes as provided in said section 2295-14 of the General Code. [110 v. 456, 460; 109 v. 347.] BOUNDARIES OF TOWNSHIPS CHANGED. Sec. 3249. [Change of boundaries in certain cases; erection of new township.] If the limits of a municipal corporation do not comprise the whole of the established township or townships in which it is situated, or if by change of the limits of such corporation, or otherwise, they include territory lying in more than one township, and the council of such corpora- tion shall in either case, by a vote of the majority of the members thereof, petition the commissioners of the proper county for a change of township lines so as to make them identical in whole or in part with the limits of the corporation, or to erect a new township out of the portion of such town- ship or townships included within the limits of such municipal corporation, the commissioners on presentation of such peti- tion, with the proceedings of the council duly authenticated, at a regular or adjourned session, may change the boundaries § 3250 THE OHIO MUNICIPAL CODE. 1226 of the township or townships, or erect such new township accordingly. [R. S. See. 1880; 89 v. 63; 70 v. 4.] Sec. 3250. [What to be done with parts of township left.] In making such change, if any township not having within its limits a city or village, is reduced in territory to less than twenty-two square miles, it may be by the commissioners there- upon annexed to any contiguous township or townships, or the commissioners may annex thereto territory from any con- tiguous township or townships, and erect a new township, as in their opinion will best promote justice and public con- venience. If a majority of the householders of such reduced township outside the limits of such municipal corporation peti- tion therefor, the commissioners may erect such reduced town- ship into a new township. [R. S. Sec. 1881; 89 v. 64; 70 v. 4.] Sec. 3251. [How change made.] When the change of bound- aries of townships is required by reason of the extension of the limits of a corporation, the change shall be made by an- nexation to the township in which the corporation or the greater part of it was before situated, of such parts of other townships as are covered by such extension. [R. S. See. 1882; 70 v. 4.] Sec. 3252. [When corporation in two or more counties; where application to be made.] When the corporation is situ- ated in two or more counties, the application may be made to the commissioners of the county in which the change of boundaries is proposed, or if the change is to be made in two or more counties, to the commissioners of the several counties as to the territory situated within them, respectively. [R. S. Sec. 1383; 70 v. 4.] CEMETERIES. Sec. 3472. [Abandonment of cemetery owned by city or village.] Where a graveyard, burial ground or cemetery is located without the corporate limits of a city or village, and not further therefrom than one mile, and the title to and possession thereof is in such city or village, or is under the control of any of the authorities of a city or village, and such 1227 MISCELLANEOUS STATUTES. § 3473 city or village has failed to protect or keep it enclosed with fences for two years, any five freeholders whose property is in the vicinity of such graveyard, burial-ground or cemetery, may apply by petition to the probate court of such county, stating in their petition that such city or village has failed to protect such graveyard, burial-ground or cemetery, and asking for its abandonment or removal. In such action such city or village shall be made defendant, and served with sum- mons as in other actions. Upon final hearing, if it appears to the court to be to the public interest to have such grave- yard, burial-ground or cemetery abandoned and removed, it shall so order. [R. S. Sec. 1473a; 89 v. 272.] Sec. 3473. [Proceedings if city or village neglects order. ] Should such city or village fail to remove such graveyard, burial-ground or cemetery for a period of six months after it has been so ordered by the court, the court shall order such premises sold as upon execution. Such sale or other transfer of such land shall not operate to give a purchaser possession until the bodies therein interred shall have been removed, as provided by law for the abandonment of cemeteries in cities and villages. [R. S. See. 1473a; 89 v. 272.] DANCE HALLS. Sec. 13393. [Public dance, roller skating or like entertain- ment without permit.]' Whoever gives a public dance, roller skating or like entertainment in a building, hall, room or rink in a city or village without having previously obtained a per- mit? from the mayor thereof, or permits another so to do, or, being the owner or lessor of a building containing a dance hall, room or rink fails to post in a conspicuous place therein a copy of this section, shall be fined not less than fifteen dollars nor more than one hundred dollars or imprisoned not more than sixty days, or both. [R. S. Sees. 6945a, 6945c; 98 v. 61.] (1) Validity—This section held permit, and such exercise of power constitutional. Rowland v. State, under this section is not an arbitrary 104 O. S. 366. abuse of the statutory or constitu- (2) Mayor is vested with full tional power. Rowland v. State, authority to issue or refuse such 1040. S. 366. § 12395 THE OHIO MUNICIPAL CODE, 1228 FLAGS ON BUILDINGS. Sec. 12395. [Display of foreign flag on public buildings.] Whoever displays the flag or emblem of a foreign country upon a state, county, or municipal building, shall be fined not more than fifty dollars or be imprisoned thirty days, or both; provided that when a foreigner is the guest of the United States, the state or a city, and upon public proclamation by the governor, or mayor of such city, the flag of the country of which such public guest is a citizen may be displayed upon public buildings. On all armories built or purchased by the state a suitable flag pole shall be erected, and the United States flag of size not less than five feet by eight feet shall fly daily. Such flags shall be subject to requisition from the quartermaster’s department of the state, without cost to the companies, and at least two to be used yearly. [106 v. 341 (842) ; 92 v. 89 §§ 1, 2; R. S.:808-1, 803-2.] | INITIATIVE AND REFERENDUM.1 Sec. 5018-7. [Duties of mayors and clerks of municipal corporations, clerk deputy state supervisors in counties.] In all municipal corporations which have not or may not pro- vide by ordinance or charter for the manner of exercising the initiative and ‘referendum powers reserved by the con- stitution to the people thereof, as to their municipal legisla- tion, the duties required of the secretary of state by this act,” as to state legislation, shall be performed as to such municipal legislation by the clerk of the municipality; the duties required of the governor shall be performed by the mayor or executive body as to such municipal legislation, and in all counties exercising the initiative powers now or hereafter provided by law the duties required of the secre- tary of state by. this act as to state legislation shall be per- formed as to such county measures by the clerk of the board of deputy state supervisors of elections; the duties required of the governor shall be performed by the prosecuting attor- ney. [103 v. 831, 832.] (1) Initiative and referendum. (2) See §5018-1 G. C., et seq. —Provisions relating thereto, see : § 4227-1, et seq., Part I. 1229 MISCELLANEOUS STATUTES. § 5018-8 Sec. 5018-8. [To what political subdivisions act applies.] The provisions of this act shall apply in every municipality in all matters concerning the operation of the initiative and referendum in its municipal legislation, unless otherwise pro- vided for by the legislative authority of the municipality, and shall likewise apply in so far as possible in every county in all matters concerning the operation of the initiative and referendum; provided, that the printing and distribution of the pamphlet of measures and the sample ballot of measures therewith shall not be dispensed with in any municipality or county. The printing and binding of measures in municipal legislation. and county. matters shall be paid by the munici- pality or county in like manner as payment is provided for by the state as to state legislation, and said printing shall be done in the same manner. that other municipal or county printing is done; distribution of such pamphlets shall be made to every voter in the municipality or county, so far as possible, by the clerk of such municipality or county com- missioner, as the case may be, either by mail or carrier, not less than ten days before the election at which the measures are to be voted upon. [103 v. 831, 833.] Sec. 5018-9. [When explanations upon municipal and county measures shall be filed.] Explanations upon munici- pal or county measures shall be filed with such clerk not less than sixty days before a general election and not less than forty days before a special election at which they are to be voted upon. Arrangements may be entered into between the secretary of state and the proper local officers for the publica- tion in one pamphlet of copy relating to both state and local matters, and where such arrangement is deemed advisable, agreement may be made to pro rate the cost of publication and distribution between the state and the municipality or county. . [103 v. 831, 833.] JUNK DEALERS. Sec. 6370. [Duty of dealer in second-hand articles.] A per- son purchasing, selling, exchanging or receiving second-hand articles of any kind, serap-iron, old metal, canvas, rope, branded ‘bottles, junk or lead pipe, except plow irons, old § 6371 THE OHIO MUNICIPAL CODE. 1230 stoves and furniture, shall post in a conspicuous place in or upon his shop, store, wagon, boat or other place of business, a sign having his name and occupation legibly inscribed thereon, and keep a separate book, open to inspection by a member of a police force, city marshal, constable ‘or other person, in which shall be written, in the English language, at the time of the purchase or exchange of such articles, a description thereof, the name, description:and residence of the person from whom purchased and received, and the day and hour when such purchase or exchange was made. Every entry shall be numbered consecutively, commencing with number one? [107 v. 529; R. S. Sec. 4413; 61 v. 128, §1; 74 v.31, §1);, 88 v423.86ev. 11535(8) & S2s2TK4 (1) Constitutional.—See Phillips v. State, 77 O. S. 214. Sec. 6371. [Further duties of same.] Such articles so pur- chased or exchanged, as provided in the next preceding section, shall be retained by the purchaser thereof, for at least thirty days before disposing of them, in an accessible place in the building where such articles are purchased or received. A tag shall be attached to such article in some visible and convenient place, with the number written thereupon corresponding to the entry number on such book. Such purchaser shall prepare and deliver each day to the mayor of the city in which such business is carried on, before twelve o’clock noon, a legible and correct copy, written in English, from such book contain- ing a description of each article purchased or received during the preceding day, the hour at which the purchase was made and a description of the person from whom it was purchased. [R. S. Sec. 4418; 86 v. 115; 74 v. 31; 61 v. 128.] Sec. 6372. [If dealer is a peddler, he need not hold property thirty days.] If the purchaser or receiver, by exchange or otherwise, as described in section sixty-three hundred and seventy, is a peddler, or goes about with a wagon to purchase or obtain, by exchange or otherwise, any of such articles not excepted, and does not have a place of business in a building, he need not retain such articles for thirty days before selling them, provided, on Monday of each week, he files with the mayor of the city or village in which is located the place of 722-7 > 5 1231 MISCELLANEOUS STATUTES. § 6373 business of the person to whom such sale is made, a copy of the record required by such section to be kept in a separate book, of the articles purchased or received during the pre- ceding week, including a description of such articles sold, to whom sold and his place of business. [R. S. Sec. 4418a; 94 Vie L134 Sec. 6373. [Not to deal with minors; nor at certain hours. ] No person shall purchase or receive by sale, barter, exchange or otherwise, an article mentioned in this chapter, of a minor or apprentice, knowing or having reason to believe him to be such, or from any person between the hours of nine o’clock p. m. and seven o’clock a. m. [R. S. Sec. 4414; 74 v. 31; 61 v. 128.] Sec. 13398. [Penalty for violations by second-hand deal- ers.] Whoever violates any provision of sections 6370 to 6373 inclusive of the General Code, shall be fined not less than twenty-five dollars nor more than one thousand dollars and the costs of prosecution, and upon the default of pay- ment of fine and costs shall be committed to the jail of the county or to some workhouse and there be confined one day for each dollar of fine and costs against him. [107 v. 178; R. S. 4414; 74 v. 31; 61 v. 128.] MARKET-HOUSE COMPANIES. Sec. 10151. [Market-house companies.] A company incor- porated to construct and maintain a market-house may erect, establish, and maintain, at the place named in its articles of incorporation, a suitable building or buildings to be appropri- ated and used exclusively as a public market-house, for the sale and vending of meats, vegetables, and all other kinds of provisions, and of fruits, plants, and flowers, and all other articles commonly sold and vended in public market-houses or spaces, on market days, in market hours. [R. S. Sec. 3858; 58 v. 92.) Sec, 10152. [Powers of such companies.] Such companies may rent, lease, sell, or dispose of stalls, cellar vaults, or other divisions or spaces in their buildings, in the manner, and upon such terms and conditions, as the directors determine. A uni- § 10153 THE OHIO MUNICIPAL CODE. 1232 form rule in renting or leasing such stalls, cellar vaults, or other divisions or spaces must be established, printed, and hung in conspicuous places in the buildings. But it may be changed, from time to time, by the directors. [R. S. See. 3859 ; 58 v.92. ] Sec. 10153. [Discrimination prohibited.] -No preference shall be made, by any variation or difference in rates or prices, in favor of citizens of the city or village wherein the buildings are erected, and against farmers, butchers, or producers not residing in such city or village, and no rule, regulation, order, or condition shall be made or exacted by any company to pre- vent farmers, butchers, or other persons from disposing of their produce, meats, vegetables, or other articles, in such quantities and upon such terms as they deem proper. [R. S. See. 3859; 58 v. 92.] - Sec. 10154. [What company shall prohibit.] Such com- panies shall prohibit and prevent in their buildings the use of false weights. or measures, the exposure or sale of any diseased or decaying meats or vegetables, and any offensive or injurious articles. [R. S. Sec. 3859; 58 v. 92.] Sec, 10155. [May keep streets unobstructed.] Such com- panies may keep the streets, alleys, or avenues in front of their buildings free, open, and clear of any obstruction from stoppage of wagons, carriages, or vehicles of any kind, or of -horses, mules, or cattle, on market days, in market hours. [R. S. See. 3860; 58 v. 92.] Sec. 10156. [May construct sewers.] When such a com- pany erects its buildings in a city or village having a sewer with which the company may connect sewers of its own con- struction sufficient to drain its buildings, it shall construct such sewers, and so connect them. In cities and villages not having sewers, such companies may construct sewers for the drainage of their buildings, and charge and receive a compensation for the tapping and use of them, or portions thereof. [R. S. See. 3861; 58 v. 92.] 1233 “MISCELLANEOUS STATUTES. $ 10193 MUSEUM AND PARK’ COMPANIES. Sec. 10193. [Powers of museum, park and rink companies. ] ‘When a corporation organized for the purpose of constructing ‘and conducting a museum for the exhibition and preservation of works of nature and’art, and for instruction in connection therewith, or a public hall of any kind, or a park, pond or rink for skating or other lawful sports, or for holding fairs, festivals, public meetings, concerts or lawful entertainments of any kind, provides in its articles of incorporation that its buildings or a designated part thereof, shall be devoted to the use of the public for all purposes set forth therein, free from cost, charge or expense except such as are necessary to pro- vide the means to keep the buildings, or part thereof and its ‘grounds in proper. condition and repair, and to pay the .cost of insurance, care, management and attendance, so. that, the public may have the benefit thereof for the uses set forth in its articles at as little expense as possible, that no stockholder, subscriber, trustee, director or member shall receive any com- ‘pensation, gain or profit from the corporation for such public use of its buildings or part thereof, the authorities of any city, village or county in which the corporation is located, may appropriate to such use and grant the right to such corpora- tion to erect and perpetually maintain its buildings on any of the parks, lands, lots or grounds which, or the use of which ‘belong to or are subject. to the control of such city, village, county, or the authorities thereof, and to control them on terms and conditions which may. be agreed upon between the public authorities and the corporation.. In every such case the public authorities and corporation may agree that additional trustees of the. corporation may be appointed: by such public authori- ties, and upon the number thereof and -the method of their appointment. They also may agree that any officer or officers of such city, village or county to be designated by them ex- officio may act as trustees. [R. 8S. Sec. 3868; 78 v. 127; 73 v. 8; 69 v. 20.) _ PEDDLERS AND ITINERANT VENDORS. Sec. 6351. [Fee from discharged soldier or sailor.] An applicant for the license, provided in section sixty-three hun- § 6352 THE OHIO MUNICIPAL CODE. 1234 dred and forty-seven, proving to the auditor to whom such application is made that he ‘has served as a soldier or sailor in the service of the United States during the late rebellion or the Spanish American war, or the World war, and has been honorably discharged therefrom, shall pay to such audi- tor as his fee for such license the sum of fifty cents, and shall not be required to make any other or further payment. He shall be exempted from paying any fee for a municipal or other license, as required by law or ordinance, during the period covered by the license issued to him by such auditor. [109 v. 39; R. S. See. 4898a; 95 v. 11; 91 v. 370.] Sec. 6352. [Municipality may revoke license.] A municipal authority issuing a license to him, for the purpose of peddling, may revoke and cancel it when he is guilty of a wrongful act in connection with such business or is not a fit person to be engaged therein. [R. S. Sec. 4398b; 91 v. 370.] Sec. 6364. [Local license.] Before selling under a state license, an itinerant vendor shall exhibit it to the clerk or mayor of a municipal corporation where he proposes to make ‘sales. Upon payment to such clerk or mayor of a local license fee, as provided by ordinance, or in the absence of such ordinance, such amount as the clerk or mayor determines,! and proof of payment of all other license fees, legally chargeable upon local sales, the clerk shall record such state license, indorse upon it the words ‘‘local license fees paid,’’ and affix his official sig- nature, with the date of such indorsement. He shall then issue a local license authorizing sales within the limits of such city or village. [91 v. 174 § 5; Bates 4402-5.] (1) The granting of the au- cense in the absence of an ordi- thority to the clerk or mayor to nance held valid in Crawford v. determine the amount of the li- Sideman, 89 O. S. 260. Sec, 6365. [Penalty.] Failure to obtain a local license and have proper indorsements made on the state license shall be subject to a like penalty as if a state license had not been issued. [91 v. 174 § 5; Bates 4402-5. ] Sec. 6366. [Enforcement and production of licenses, etc.] The mayor, clerk, city solicitor or any assistant city solicitor 1235 MISCELLANEOUS STATUTES. § 13166 of any municipal corporation in this state, shall have power to demand the production of the proper state and local licenses from an itinerant vendor advertising or actually engaged in business in such municipal corporation, and a failure to produce such license shall be prima facie evidence that such vendor has none. [101 v. 224; 91 v. 175; Bates 4402-7. | Sec. 13166. [Peddling without license; penalty.] Whoever, being an itinerant vendor as designated and described by law, sells or exposes for sale, goods, wares, merchandise, or articles of wearing apparel, without having the state and local licenses as required by law, and whoever, as principal or agent, adver- tises such sale, by circular, hand-bill, newspaper or otherwise before such licenses are issued, shall be fined not less than two hundred dollars nor more than one thousand dollars or im- prisoned not more than six months, or both. [ 101 v. 224; 95 v. 544; 91 v. 173.] Sec. 13167. [Fraud in procuring peddlers’ license; penalty. ] Whoever, being an itinerant vendor as described and desig- nated by law, makes a false statement in an original or supple- mentary application for the state license required by law, or fails to comply with the other requirements of law as to itinerant vendors, shall be fined not less than two hundred dollars nor more than one thousand dollars, or imprisoned not more than six months, or both. [101 v. 224; 91 v. 175.] SHOWS. Sec. 6374. [Show not to exhibit without permit.] A pro- prietor, or his agent, of a traveling public show, shall not ex- hibit a natural or artificial curiosity, or exhibit horsemanship in a circus, or otherwise, for a price, until a permit has been obtained from the auditor of the county in which it is intended to so exhibit, specifying the time and place such show may exhibit in the county. Such auditor shall not issue such permit until there has been paid into the county treasury the following sums for each day such show is to be exhibited, to-wit: in counties containing a population not exceeding twenty-five thousand by the last federal census, twenty-five dollars; in counties containing a population of more than twenty-five thou- § 6375 THE OHIO MUNICIPAL CODE. 1236 sand and not exceeding forty thousand by such census, forty dollars; and in other counties, sixty dollars. [R. S. Sec. 4415; 29 v. 446 §1; 45 v.48 § 2; 79 v. 114.] uay, Sec, 6375, [Right of municipal corporations to license un- affected.] The next preceding section shall not interfere with the right or power of a municipal corporation to impose a license upon all shows exhibited in such corporation in addition to that imposed herein. [R. S. Sec. 4416; 47 v. 51 §3; (8S. & CG 1407).] VOTING ON SUBMITTED QUESTION. Sec. 4840. [Submission of question when special election not provided for.] Unless a statute providing for the submis: sion .of a question to the voters of a county, township, city or village provides for the calling of a special election for that purpose, no special election shall be so called. The question so to be voted upon shall be submitted at a regular election in such county, township, city or village, and notice that such question is to be voted upon shall be embodied in the proclamation for such election. [90 v. 130 § 2; Bates 2996-2.] ; Sec, 5122, [Number of votes: necessary when statute ‘is silent.] Where it is provided by statute that a question shall be submitted to the qualified voters of a county, township, city or village, and such statute is silent as to the number of votes necessary to authorize the performance of the act voted upon, such statute shall mean that a majority of all the qualified voters voting at such. election must vote in favor thereof, in order to authorize such act. [90 v. 130 §1; Bates 2996-1. ] (1) Meaning. of - majority.— Where trustees are authorized .to make a special levy but said levy not to be made until a majority of the electors of said township at some regular election, shall vote in favor of said levy, a majority of votes cast is. required and not a majority voting for or against the levy. .Enyart v. Hanover T'p., 25 0. S. 618, But. where the majority votes cast are required to be in the affirmative, “majority votes’ means majority of votes cast on the question. Dex- ter v. Raine et al., 18 B..61 (aff'd 18 B. 301). See also State ex rel, v. Amlin; 13 Dee. 334. i And a majority for a constitu- tional amendment is a majority of votes cast for senators and repre- sentatives. State v, Foraker, 46 0. S. 677. WEINLAND'S EDITION OF ELLIS’ ANNOTATED OHIO MUNICIPAL CODE. PART III. CONSTITUTIONAL PROVISIONS RELATING TO MUNICIPAL CORPORATIONS, HOME RULE, FORMS AND ORDER OF PROCEDURE. CONSTITUTIONAL PROVISIONS RE- LATING TO MUNICIPALITIES. Art. Il, Sec. 1f. [Initiative and referendum.] The initia- tive and referendum powers are hereby reserved to the peo- ple of each municipality on all questions which such munici- pality may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law. [Adopted Sept. 3, 1912.] (1) For statutory provisions ew rel., v. Clendening, 93 O. S. relative to initiative and referen- 264. dum in municipalities, see §§4227-1 Mode of exercise.The manner et seq., Part I. of exercising this power is provided Scope of terms.—See Shryock py g§ 4297-1 to 4227-12, G. C. v. Zanesville, 92 O. S. 375; State, Cincinnati v. Hillenbrand, 103 O. S. 286. Art. V, See. 1. [Qualifications of electors.]' Every citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preced- ing the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections. [Adopted Nov. 6, 1923.]' | (1) Blections and suffrage qual- fications in charter cities, see notes under ‘‘Home Rule’’, infra. Art. V, See. 7. [Nominations for municipal offices.]' All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by peti- tion as provided by law, and provision shall be made by law for a preferential vote for United States senator; but direct 1239 Art. XII, Sec. 11 THE OHIO MUNICIPAL CODE. 1240 primaries shall not be held for the nomination of township officers or for the officers of municipalities of less than two thousand population, unless petitioned for by a majority of the electors of such township or municipality. All delegates from this state to the national conventions of political par- ties shall be chosen by direct vote of the electors. Each can- didate for such delegate shall state his first and second choices for the presidency, which preferences shall be printed upon the primary ballot below the name of such candidate, but the name of no candidate for the presidency shall be so used without his written authority. [Adopted Sept. 3, 1912.] _ (1) Nominations and _ elections in charter cities, see notes under “Home Rule,’’ infra. ~ General statutory provisions as to nomination and election of mu- nicipal officers, see §§4963 and 4836, G. C. Nomination by peti- Since this. section and Art. XVIII were adopted.as amend- ments to the constitution. at the same time, they must be con- ‘strued together, and, if possible, differences reconciled by construc- tion. Fitzgerald v. Cleveland, 88 tion, see. §§$ 4996 et seq. O. 8.°338. Art. XII, Sec. 11. [Bonds; tax levy required.]* No bonded indebtedness of the state, or any political subdivisions there- of, shall be incurred: or renewed, unless, in the. legislation under which such indebtedness is incurred or renewed, pro- vision is made for levying and collecting annually by taxation an amount sufficient to pay the interest on said bonds, and to provide a sinking fund for their final redemption at matur- ity. [Adopted Sept. 3, 1912.] (1) Amount of tax; how and when determined.—This provision of the constitution does not re- quire that at the time the issue . of bonds is authorized there shall be levied any specified amount or any specified rate, but it does re- quire that provision shall then be made for an annual levy during the term of the bonds in an amount sufficient to pay the in- terest on the bonds proposed to be issued and to provide for their final redemption at maturity, which levy must be made annu- ally in pursuance of the pro- visions of the original ordinance or resolution requiring the same. The amount necessary to be lev- ied for the purposes specified is to be determined by the taxing officials at the time the levy is made. ink v. Karb, Mayor, 89 O. 8. 326; affirming court of ap- peals, which affirmed Link v. Karb, 14 N. P. (N. 8S.) 244. 4241 CONSTITUTIONAL PROVISIONS. Art. XIII, See. 6 . Art. XII, See. 6. [Organization by general laws.]' The General Assembly shall provide for the organization of cities, and incorported villages, by general laws, and restrict their power of taxation, assessment,’ borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power. [Const. 1851.] (1) General laws.—See anala- the power of assessment, it was gous provisions of Art. XVIII, held that it is superseded by See. 2. And see, generally, notes § 13 of Art, XVIII, which con- under ‘‘Home Rule,’’ infra. tains no such limitation. Colum: (2) In so far as this section au- bus v. Berry (Ct. of App. Frank- thorizes the legislature to restrict lin Co., decided Dec. 9, 1920). Art. XV, Sec. 10. [Civil Service.]' Appointments and pro- motions in the civil service of the state, the several counties and cities, shall: be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examina- tions. Laws shall be passed providing for the enforcement of this provision. [Adopted Sept. 3, 1912.] (1) Statutory provisions relat- Charter provisions differing ing to civil service in municipali- ~ from general laws; see notes un- ties; see §§ 486-1 et seq. G C. der ‘‘Home Rule,’’ infra. Part II, under title ‘‘Civil Ser- vite,’? Art. XVII, See. 1. [Time of holding municipal elections.]* Elections for state and county officers shall be held on the first Tuesday after the first Monday in November in the even numbered years; and all elections for all other elective offi- cers shall be held on the first Tuesday after the first Monday in November in the odd numbered years. [Const. 1851.] (1) Terms of municipal officers. to such even number of years, not —Sec. 2 of the same article lim- exceeding four, as may be pre- its the terms of municipal officers scribed by law. ART. XVIII. MUNICIPAL CORPORATIONS. See. 1. [Classification.]' Municipal corporations are here- by classified into cities and villages. All such corporations Art. XVIII, Sec. 2 THE OHIO MUNICIPAL CODE. 1242 having a population of five thousand or over shall be cities; all others shall be villages. The method of transition from one class to the other shall be regulated by law. [Adopted Sept. 3, 1912.] self- ex (1) Provision held not executing.—Murray v. State, rel., 91 O. S. 220. Statutory provisions as to class- ification; see §3497 and notes, PRactel: Further classification prohibited. —The constitution, by the above provision, having classified mu- nicipalities on a basis of popula- tion, the legislature is without authority to make further classifi- cation for the purpose of legisla- tion affecting municipal govern- ment. Elyria v. Vandemark, 100 O. S. 365. Sec. 2. [General and additional laws.]' General laws shall be passed to provide for the incorporation and government of cities and villages; and additional laws may also be passed for the government of municipalities adopting the same; but no such additional law shall become operative in any munici- pality until it shall have been submitted to the electors there- of, and affirmed by a majority of those voting thereon, under regulations to be established by law. [Adopted Sept. 38, 1912. ] (1) Additional laws.—For stat- utes enacted pursuant to this sec- tion, providing for optional plans of municipal government, §§ 3515-1 et seq., Part I. See Op. Atty. Gen. (1919), p. 127. see Sec. 3. [Powers.]' Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. [Adopted Sept. 8, 1912.] (1) Powers of ‘‘local self-gov- ernment.’’—For definition and scope of terms, and manner of ex- ercise of powers, see notes under ‘‘Home Rule,’’ infra. Held self-executing.—Overruling State, ex rel., v. Lynch, 88 O.S. 71, it was held in Perrysburg v. Ridg- way, 108 O. 8. 245, that the above grant of constitutional power is self-executing. See also, Youngs- town v. Arnold,-15 Oh. App. 112. 1243 CONSTITUTIONAL PROVISIONS. Art. XVIII, Sec. 4 See. 4. [Municipal public utilities.]' Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public util- ity may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility. (1) Purchase of public utility. —HEffect of this amendment on statutes relative to purchase of existing utility, see §3990 and note, Part I. Provision self-executing.—This section is self-executing and no action of the Legislature is essential to empower a municipality and a public utility to enter into a valid contract for the product or service of such utility company to be supplied to the municipality and its inhabitants. Link v. Pub. Util. Com.; 102.0;,8..' 336. Scope of section.—This section confers plenary power on ‘‘any municipality’? to do any of the things enumerated. Dravo-Doyle Co. v. Orrville, 93 O. S. 236. See also Billings v. Ry., 92 O. S. 478. § 614-52 G. C. does not limit the right of a municipality to contract for product or service of a utility under the above constitutional pro- vision. Telephone Co. v. Telephone Coy 102*O)} -8:0524. [Adopted Sept. 3, 1912.] Charter not a _ prerequisite.— Adoption of a charter is not pre- requisite of the enjoyment of the power conferred by this section. Such authority is conferred upon and may be exercised by every municipality regardless of wheth- er or not it has adopted a char- ter under the provisions of See- tion 7, Art. XVIII. The provi- sions conferring such power are self-executing. State, ew rel., v. Weiler, 101 O. S. 123. Power to issue bonds derived from Constitution.Under the power to acquire public utilities the authority to levy taxes and issue bonds is a necessary inci- dent thereto, and is included in the power conferred. Ib. Such bonds, however, insofar as they are not mortgage bonds against the utility, are subject to general limitations of §3939 et seq. Ib. Sec. 5. [Municipal public utilities; referendum.]* Any mu- nicipality proceeding to acquire, construct, own, lease or op- erate a public utility, or to contract with any person or com- pany therefor, shall act by ordinance and no such ordinance Art. XVIII, Sec. 6 THE OHIO MUNICIPAL CODE. 1244 shall take effect until after thirty days from its passage. If within said thirty days a petition signed by ten per centum of the electors of the municipality shall be filed with the ex- ecutive authority thereof demanding a referendum on such ordinance it shall not take effect until submitted to the elec- tors and approved by.a majority of those voting thereon. The submission of any such question shall be governed by all the provisions of section 8 of this article as to the submission of the question of choosing a charter commission. [Adopted Sept. 3, .1912.] (1) If a municipality . should. visions of this section, the courts attempt substantially to recon- would undoubtedly prevent such ‘struct a public utility under guise abuse of power. Schryock | v. of repairing or improving it, Zanesville, 92 O. S. 375. without. complying with the pro- Sec. 6. [Municipal public utilities; sale of product.] Any municipality, owning or operating a public utility for the purpose of supplying the service or product thereof to the municipality or its inhabitants, may also sell and deliver to others any transportation service of such utility and the sur- plus product of any other utility in an amount not exceeding in either case fifty per centum of the total service or product supplied by such utility within the municipality [Adopted Sept. 3, 1912.] | Sec. 7. [Home rule; general powers.]' Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government. [Adopted Sept. 3, 1912.] (1) See notes under ‘‘Home Rule,’ infra. Sec. 8. [Home rule charter; proceedings for adoption.]! The legislative authority of any city or village may by a two-thirds vote of its members, and upon petition of ten per centum of the electors shall forthwith, provide by ordinance for the submission to the electors, of the question, ‘‘Shall a commission be chosen to frame a charter.’’ The ordinance providing for the submission of such question shall require 1245 CONSTITUTIONAL PROVISIONS. Art. XVIII, Sec. 8 that it be submitted to the electors at the next regular mu- nicipal election if one shall occur not less than sixty nor more than one hundred and twenty days after its passage; other- wise it shall provide for the submission of the question at a special election to be called and held within, the time afore-. said. The ballot containing such question shall. bear no party designation, and provision shall be made thereon for the election from the municipality at large of fifteen electors who shall constitute a commission to frame a charter; pro- vided that a majority of the electors voting on such question shall have voted in the affirmative. Any charter so framed shall be submitted to the electors of the municipality at an election to be held at a time fixed by. the charter: commission and within one year from the date of its election, provision. for which shall be made by the legislative authority of the municipality: in so far as not prescribed by general law. Not less than thirty days prior to such election the clerk of the municipality shall mail a copy of the proposed charter to each elector whose name appears upon the poll or registra- tion books of the last regular or general election held therein. If such proposed charter is approved by a majority of the electors voting thereon, it shall become the charter of such municipality at the time fixed therein. [Adopted Sept. 3, 1912.] (1) The question of the ap- lating to initiative and referendum pointment of a commission to _ petitions have no application. In- frame a charter cannot be sub- mitted at a primary election. Op. Atty. Gen. (1919), -p. 771. ' Requirement of ordinance.—It is not necessary that such ordinance become effective more than sixty days, but only that it should have been passed not less than sixty days prior to such election. State, ex rel. v: Fouts, 103 O. 8S. 345. Sufficiency of petition—how de- termined.—The constitution makes no provision for determining the . validity or sufficiency of the peti- tion, or for verification by the circulators. Plainly the laws ré- deed, the constitution gives the legislature no authority to make any provisions in reference to the proceedings for adoption of a charter. It seems evident, there- fore, that the council is the judge of the validity and sufficiency of the petition. Note the provisions of section 14, post, as to the basis for determining the percentage of _Signers to the petition. Where a petition has been. filed under this section, .and . council thereafter by two-thirds vote, pro- vides for submission, no inquiry may thereafter be made into the form, Art. XVIII, Sec. 9 THE OHIO MUNICIPAL CODE. 1246 substance or sufficiency of such Adoption of charter.—See notes petition. State ex rel. v. Fouts, 103 and forms of procedure under O. S. 345. ‘‘Home Rule,’’ infra. Sec. 9. [Charter; amendment of.]’ Amendments to any charter framed and adopted as herein provided may be sub- mitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority. The submission of proposed amend- ments to the electors shall be governed by the requirements of section 8 as to the submission of the question of choosing a charter commission; and copies of proposed amendments shall be mailed to the electors as hereinbefore provided for copies of a proposed charter. If any such amendment is ap- proved by a majority of the electors voting thereon, it shall become a part of the charter of the municipality. A copy of said charter or any amendment thereto shall be certified to the secretary of state, within thirty days after adoption by a referendum vote. [Adopted Sept. 3, 1912.] (1) Amendment of charter— visions. Reutener v. Cleveland, 107 See notes and forms of procedure under ‘‘Home Rule,’’ infra. The provisions of the constitution as to change or amendment in municipal charters are mandatory and exclusive, and §§ 3515-1, et seq., relating to optional plans of government have no _ application. Switzer v. State, ex rel., 103 O. S. 306. The power given by this section to the electors of a city to amend their municipal charter, includes the power to repeal or strike out pro- Ons rate: Under this section each section of a proposed amendment need not be submitted separately at an election. An amendment amounting to a general revision, having for its principal purpose to provide for the so-called city manager plan of government, together with a system of voting by the so-called Hare System of Proportional Representa- tion, comprising numerous separate sections, may be voted upon as a whole. Ib. Sec. 10. [Appropriation in excess of public use.] A mu- nicipality appropriating or otherwise acquiring property for public use may in furtherance of such public use appropriate or acquire an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be appropriate to preserve the improvement made. 1247 CONSTITUTIONAL PROVISIONS. Art. XVIII, Sec. 11 Bonds may be issued to supply the funds in whole or in part to pay for the excess property so appropriated or otherwise acquired, but said bonds shall be a lien only against the prop- erty so acquired for the improvement and excess, and they shall not be a liability of the municipality nor be included in any limitation of the bonded indebtedness of such municipal- ity prescribed by law. [Adopted Sept. 3, 1912.] See. 11. [Assessments for cost of appropriating property.] Any municipality appropriating private property for a pub- lic improvement may provide money therefore [therefor] in part by assessments upon benefited property not in excess of the special benefits conferred upon such property by the im- provements. Said assessments, however, upon all the abut- ting, adjacent, and other property in the district benefited shall in no ease be levied for more than fifty per centum of the cost of such appropriation. [Adopted Sept. 3, 1912.] See. 12. [Bonds for public utilities.]’ Any municipality which acquires, constructs or extends any public utility and desires to raise money for such purposes may issue mortgage bonds therefor beyond the general limit of bonded indebted- ness prescribed by law; provided that such mortgage bonds issued beyond the general limit of bonded indebtedness pre- scribed by law shall not impose any liability upon such mu- nicipality but shall be secured only upon the property and revenues of such public utility, including a franchise stating the terms upon which, in case of foreclosure, the purchaser may operate the same, which franchise shall in no case ex- tend for a longer period than twenty years from the date of the sale of such utility and franchise on foreclosure. [Adopt- ed Sept. 3, 1912.] (1) General bonds for public pledging the general credit of the utilities—Municipalities in this municipality to their payment. state are empowered by constitu- State, ex rel., v. Weiler, 101 O. S. tional provision to acquire any 123, public utility the product or serv- Grant of power from the legis- ice of which is to be supplied to lature is not a prerequisite, and the municipality or its inhabi- under the provisions of See. 13, tants, and they may issue bonds Art. XVIII of the State Consti- to raise money for such purpose’ tution, the indebtedness which Art. XVITI, Sec. 13. THE OHIO MUNICIPAL CODE. may be incurred for sueh ‘purpose ‘ applicable to bonds | issued _ under, is subject only to the limitation prescribed by the legislature as to the extent of general tax levies and the aggregate amount of in- 1248 Provisions of § 3963. G. C. -not this section of the constitution: See Op. -Atty. Gen. (1922), p. 1033, See. notes to See 4, ante. debtedness that may be incurred for all loeal purposes. - Jb. See. 13. [Taxation, debts, reports and accounts.]' Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes, and may require re- ports from municipalities as to their financial condition and transactions, in such form as may be provided by law, and may provide for the examination of the vouchers, books, and accounts of all municipal: authorities, or of public undertak- ings conducted by such authorities. [Adopted Sept. 3, 1912.] utilities, see notes under. Consti- “tution, Art. XVIII, Sees. 4 and 12, ante. Examination of municipal ac- counts, etc., see §§ 274 et seq., un- der title ‘‘Officers,’’ in Part II. (1) Limitations on taxation, see §$ 5649-2 et seq., G. C., under title ‘Taxation,’ ? in Part IL: Limitations on — debts, §§ 3939 et seq., in Part*I. :: Limitation on bonds for public see Sec. 14. [Elections under this article.] All elections and submissions of questions provided for in this article shall be conducted by the election authorities prescribed by general. law. -The percentage of electors required to sign any petition provided for herein shall be based upon the total vote cast at the last preceding general municipal election. . [Adopted Sept. 3, 1912.] HOME RULE. By the schedule adopted in connection with Article XVIII, it was provided; ‘Tf the foregoing amendment be adopted by the electors and be- come a part of the Constitution it shall take effect on November 15, i) es } Pursuant to the provisions of this amendment, a considerable num- ber of cities and villages, including most of the larger cities, have framed and adopted charters. A number of these, typical of the vari- ous forms of local municipal organization, will be found in the Sup- plement to Page and Adams’ General Code, Vol. 1, p. 955 et seg. See, also, Page’s Comp. Ed. G. ©., following: $3515-71. 1249 HOME RULE. Art. XVIII, Sec. 14 While many questions that are arising and certain to arise in refer- ence to the exercise of these new powers have not been adjudicated, the following may prove helpful as well to those municipalities which desire to formulate special charters as to those which have already adopted them. I. SCOPE AND EFFECT OF- CONSTITUTIONAL PROVISIONS. Constitutional provisions ‘ self- executing.—Under earlier rulings it was held that the provisions of the eighteenth article of the con- stitution as amended in Septem- ber, 1912, continue in force the general laws for the government of cities and villages until the 15th day of November following, and thereafter, until changed in one of the three modes following: (1) By the enactment of general laws for their amendment, (2) by additional laws to be ratified by the electors of the municipal- ity to he affected thereby, (3) by the adoption of a charter by the electors of a municipality in the mode pointed out in the article. State, ex rel., v. Lynch, 88 O. S. 71. Cited with approval, Fitz- gerald v. Cleveland, 88 O. 8. 338, 342; Green v. Commission, 90 O. S. 252, 264. But in Perrysburg v. Ridgway, 108 O. S. 245 it was held that the above constitutional grant of power to municipalities is self-executing in the sense that no legislative action is necessary in order to make it available to the municipality and exercise of the powers therein con- ferred is not in any wise dependent upon or conditioned by § 7, Article XVIII, which provides that ‘a municipality may adopt a charter.” State, ex rel. Toledo v. Lynch, 88 O. S. 71, disapproved as to this proposition. See to like effect, Youngstown v. Arnold, 15 Oh. App. 18 5 Purpose of home-rule amend- ment.—The plain purpose of the municipal home-rule amendment adopted in September, 1912, is to provide home rule for cities, which obviously includes the se- lection of its own municipal offi- cers by the people of the munici- pality or other duly authorized municipal officers. State, ew# rel., v. George, 92 O. S. 344. Statutes passed pursuant to such home-rule amendment should be liberally construed so as to effect the plain purpose of such amendment. Jb. Source and scope of powers.— The charter of a city which has been adopted in conformity with the provisions of Article XVIII, and which does not disregard the limitations imposed in that ar- ticle or other provisions of the constitution, finds its validity and its vitality in the constitution it- self and not in the enactments of the general assembly. The source of authority and the measure of its extent is the constitution. The powers conferred by such a char- ter, adopted within the limitations stated, are not affected by the general statutes of the state. Billings v. Railway Co., 92 O. 8. 478. Art. XVIII, Sec. 14 THE OHIO MUNICIPAL CODE. 1250 II. GENERAL SCOPE OF CHARTERS. Charters; scope and _limita- tions.—The provisions of Section 7, Article XVIII of the Constitu- tion as amended in September, 1912,. authorize any city or vil- lage to frame and adopt or amend a charter for its government, and it may prescribe therein the form of the government and define the powers and duties of the differ- ent departments, provided they do not exceed the powers granted in Section 8, Article XVIII, nor dis- regard the limitations imposed in that article or other provisions of the constitution. Fitzgerald v. Cleveland, 88 O. S. 338. Measure of powers under char- ter.—A municipalty may, by broad general words in its charter, take unto itself all of the powers which under the constitution and laws of Ohio it would be compe- tent for such charter specifically to enumerate. Cleveland = v. Coughlin, 16 N. P. (N. 8.) 468. To same effect, State, ex rel., v. Otis, 98 O. S. 83. Definition of ‘‘all powers of local self-government.’’—They are such powers of government as, in view of their nature and the field of their operation, are local and municipal in character. The force of the terms employed requires the inclusion of such powers to be exercised by officials who in some manner and to some extent represent the sovereignty of the people. It as clearly excludes the exercise of functions which are appropriately exercised by cater- ers and impresarios. State, ew rel., v. Lynch, 88 O. 8. 71. Scope of powers.—Under the provisions of a charter, a city may reserve to itself authority to exercise any power now, or that may hereafter be conferred upon the municipalities of this State by the laws of Ohio. State, ex rel., v. Otis, 98 O. S. 83. The powers referred to are clearly such as involve the ex- ercise of the functions of gov- ernment, and they are local in the sense that they relate to the mu- nicipal affairs of the municipality. Fitzgerald v. Cleveland, 88 O. S. 338, 344, Charter may confer powers not granted by general laws.—Any provision in a charter attempting to confer powers upon a munici- pal government in excess of the powers permitted to be granted by the constitution, or disregarding in any way the limitations im- posed by that instrument, would be invalid But it does not fol- low from this that a city may not by its charter confer on its government powers which are dif- ferent from those conferred by general laws upon the municipal governments of the state’ gener- ally. Billings v. Railway Co., 92 O. S. 478. The test whether a municipal- ity which has adopted a charter is acting beyond the scope of its authority must be determined by reference to the state consti- tution, and not to acts of the legislature. Goebel v. Cleveland Railway, 17-Ny B. iG. eSaees i See, also, Heald v. Cleveland, 19 WN. Pe oCN. S82)! 305, In determining whether an ordi- nance is in ‘‘conflict”’ with general laws, the test is whether the ordi- nance permits or licenses that which ; 1251 the statute forbids, and vice versa. Struthers v. Sokol, 108 O. S. 263. A police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, which acts are not referred to in the general law, or because certain specific acts are omitted in the ordinance but referred : to in the general law, or because different penalties are provided for the same acts, even though greater penalties are imposed by the munic- ipal ordinances. Ib. Charter provisions supersede conflicting statutes—A munici- pality which has adopted a char- ter under the home-rule amend- ment has the same power to legis- late, through its council and with- in the provisions of its charter and the state constitution, as has the General Assembly to exercise such power; and the provisions of its charter in effect operate as a repeal of statutes in - conflict therewith. Goebel v. Cleveland Railway, 17:N. P. (N. 8.) 337. In case of a conflict between a municipal charter regularly adopt- ed and an act of the General As- sembly on any subject provided for in said charter, the provisions of the gharter ought to prevail within the territorial limits of the municipality on all matters with- in its authority and jurisdiction. State, ex rel., v. Culbertson, 30 OnE eAg LUT. The purpose of the thome-rule amendment was to permit a city by its charter to adopt different provisions from those contained in the general laws within the limits defined, and to make such HOME RULE. Art. XVIII, Sec. 14 differences effective. State, ex rel., v. Edwards, 90 O. S. 305-310. Adoption of statutes by charter.— Where the provisions of a city charter expressly adopt and con- tinue in force as a part of such charter general and special laws of the state, all such laws theretofore enacted become part of the charter and can only be changed by amend ment of the charter and any munic- ipal legislation in conflict therewith is invalid. Cincinnati v. Roettinger, 105 O. S. 145. Restriction on levying taxes.— Where a city charter gave the city power ‘‘to assess, levy and collect taxes on all _ property which the city may lawfully tax for general and special purposes,’’ ete., held: Municipalities that have adopt- ed charters under Section 7, Ar- ticle XVIII of the Amendments to the Constitution, adopted September 3, 1912, have not the absolute and unrestricted power to levy taxes for local purposes. State, ex rel., v. Cooper, 97 O. S. 86. To same effect.—State, ex rel., v. Bish, 104 O. S. 206. The power of all municipalities to levy taxes may be limited or restricted by general laws. Such limitations or restrictions are war- ranted by Section 6, Article XIII, adopted in 1851, and by Section 13, Article XVIII of the Amend- ments adopted September 3, 1912. State, ex rel., v. Cooper, 97 O. S. 86; State, ex rel., v. Bish, 104 O.S. 206. Smith law.—The Smith one per cent. law (§§ 5649-2 to 5649-5b, G. C.) does limit the power of Arte XVIII, Sec. 14. THE OHIO MUNICIPAL UODE. municipalities to levy taxes, and is not repealed by any provision of the present constitution, but is continued in force by section XX of the schedule to that instru- ment. Ib. Construction of words in char- ter.—Words which are used in a constitutional amendment, in a statute, or in the charter of a city, are to be given the meaning which they generally bore at the time that such constitutional amendment, statute or charter was enacted. Mog v. Cleveland, ASSN Pe CNS.) Ao: The words ‘‘competition’’ and ‘‘competitive bidding’’ have the same meaning, ete. as in See. 3811. Jb. Strict rule of construction ap- plied.—Taxation is a sovereign function, The rule of liberal con- struction will not apply in cases where it is claimed a part of the state sovereignty is yielded to a community therein. It must ap- pear that the people of the state have parted therewith by the adoption of a constitutional pro- vision that is clear and unambigu- ous. State, ex rel., v. Cooper, 97 O. S. 86. III. PARTICULAR PROVISIONS OF CHARTERS. Officers; character and mode of selection——Where a charter abol- ishes nomination by direct pri- mary and provides for the aboli- tion of party mark or emblem on the ballot for election of city of- ficials, and for rotation of names on ballot, and for a system of preferential voting, held, under Sections 3 and 7, Article XVIII, as So amended, municipalities are authorized to determine what of- 1252 ficers shall administer their gov- ernment, which shall be appoint- ed and which elected, that the nomination of elective officers shall be made by petition by a method prescribed, and elections shall be conducted by the election authorities prescribed by general laws. Fitzgerald v. Cleveland, 88 O. S. 338. See, also, State, ex rel., v. Hillenbrand, 100 O. 8. 339. Op. Atty. Gen. (1915), p. 774. Election of officers, method of voting.— Under the home-rule amend- ment to the Ohio Constitution, the rule that each elector is entitled to vote for every officer whose place is to be filled, is no longer in this state as regards elections held under home-rule city charters. Reutener v. Cleveland, 107 O. S. 117. May confer upon women right to vote.—Prior to the adoption of the federal amendment abolishing sex qualifications as to electors, it was held that a provision in the charter of a municipality which confers upon women the right to vote for all municipal elective officers and to be appointed or elected to and hold any municipal office provided for in such charter, was valid. (Mills v. City Board of Elections et al., 54 Ohio St. 631, and State, ex rel., v. City of Cin- cinnati et al, 19 Ohio, 178, ap- proved and followed.) State ew rel., v. French, 96 O. S. 172. Woman as mayor; judicial power.—Prior to the adoption of the nineteenth amendment to the Federal Constitution it was held that if a woman should be elect- ed mayor, pursuant to the terms of a charter adopted by a mu- nicipality, she would be incapable of exercising any of the jurisdic- 1253 tion of a magistrate in civil or criminal matters which the legis- lature might confer by general provisions upon the mayors of cities and villages. State, ew rel., v. French, 96 O. 8. 172, 185. Provision as to nominating pe- titions—Where charter required signature to be ‘‘in ink’? or ‘‘in- delible pencil,’’ board of deputy state supervisors of elections would have authority, even without ob- jections being filed, to reject and refuse to act upon nominating pe- titions not in compliance with such requirements. State, ew rel., v. Lloyd, 93 O. S. 20. Proportional Representation.— Provision of charter ‘establishing this mode of election is valid. Reute- ner v. Cleveland, 107 O. S. 117; Hile v. Cleveland, 107 O. 8S. 144. The adoption of the city manager plan of government, together with the Hare System of Proportional Representation, in a city charter, under the home-rule amendment to ‘the Ohio Constitution, is not a denial of the republican form of government, and does not contravene § 4, Article IV of the Federal Con- stitution. Adoption of such a form of government raises a_ political “question, and not a judicial question, and cannot be challenged in the courts. Hile v. Cleveland, 107 O. 8. 144, Limitation on power to estab- lish courts.—To hold that a mu- nicipality could establish a court with jurisdiction in state cases, or make any other provision re- lating to governmental matters of the state or any of its subdivi- sions except the municipality it- self, would be to confer on it powers not at all contemplated by HOME RULE. Art. XVIII, Sec. 14 the home-rule amendment. State, ex rel., v. French, 96 O. 8. 172. Civil service provisions in a charter adopted by a municipal- ity under the provisions of Sec. 7 of Art. XVIII supersede the gen- eral civil service law so long as such charter provisions comply with the requirements of Sec. 10 of Art. XV. State, ew rel., v. Ed- wards, 90 O. S. 305; State, ex rel., v. Baker, 92 O. S. 506. Street railway; permission to construct.—The granting of per- mission and the making of a con- tract to construct and operate a street railway in the streets of a city or -village is a matter that may be provided for in a charter adopted by the municipality un- der Article XVIII of the constitu- tion. Billings v. Railway Co., 92 O;I8- 0A TBR 1) Charter may dispense with con- sents.—Where the terms of a charter adopted in full compli- ance with Article XVIII of the constitution empower the council of the city or village to grant permission for the construction, extension, maintenance or opera- tion of a public utility and pro- vide that no consent of the own- ers of property abutting on any highway or public ground shall be required therefor, unless such public utility is of such a charac- ter that its construction and op- eration is an additional burden on the rights of such abutting property owners, the provisions of the General Code requiring such consents do not apply. Jb. Commission government; com- mission as council—In a munici- pal corporation which is organ- ized under a commission form of Arta Vint, Sec. 14 THE OHIO MUNICIPAL CODE. 1254 government, the commission is the legislative body, even though it is not designated as the ‘‘coun- eil.’’ Accordingly, See. 40 of the charter of Dayton, which pro- vides, ‘‘The commission shall be the judge of the election and qualifications of its members,’’ is not inconsistent with G. C. Sec. 4327, which provides that the council shall be the judge of election and qualifications of its members. Accordingly the court of common pleas acts properly in dismissing petition to contest the election of a commissioner of such municipal corporation. Flot- ron v. Barringer, 94 O. S, 185. Powers of commission. — The fact that executive and adminis- trative powers in addition to leg- islative powers are conferred upon a commission by the charter of a municipal corporation, does not prevent the commission from _ be- ing the legislative authority of such municipal corporation. Jb. President of commission; judi- cial powers.—A provision in a municipal charter, adopted under authority of Section 7 of Article XVIIT of the State Constitution, continuing in force the general laws of the state conferring judi- cial functions upon mayors of cities and villages, to be exer- cised by the president of a city commission, who is elected a mem- ber of that commission by the qualified electors of the munici- pality, is not in conflict with any provision of the Constitution of Ohio. Ide v. State, 95 O. 8S. 224. To same effect, see State, ex rel., v. Davis, 96 O. S. 301. Municipal court under charter. —Where a city charter, supple- mented by an act of the General Assembly, creates and constitutes amunicipal court, such court is not a constitutional, but rather a statutory court, and authority to appoint its clerk is vested in such appointing officer or board as is prescribed by the city charter, and not in the appointing officer or board prescribed by the sup- plementary statute. State, ex rel., «Vi, (Culbertson, 30...O:4 Cac As 117. Effect of charter on ordinance. —Where charter provided: ‘‘all ordinances and _ resolutions in force at the time of taking effect of this charter, not inconsistent with its provisons, shall continue in foree until amended or re- pealed,’’ it was held, that an or- dinance which had been passed in due form by council and signed by the mayor at the time of the taking effect of the new charter of the city of Dayton, and was only awaiting lapse of the time within which a referendum might be resorted to before going into force and effect, was among the ordinances in force at the time of the taking effect of the charter. State, ex rel., v. Wall, 17 N. P. (N. 8.) 33. Limitation on power to levy taxes.—The power of all munici- palities to levy taxes may be lim- ited or restricted by general laws. Such limitations -or restrictions are warranted by Sec. 6, Art. XIII, adopted in 1851, and by Sec. 138, Art. XVIII of the amend- ments adopted September 3, 1912. State, ex rel., v. Cooper, 97 O. 8S. 86. The Smith one per cent. law ($§ 5649-2 to 5649-5b G. ©.) does ae 1255 limit the power of municipalties to levy taxes, and is not repealed by any provision of the present constitution, but is continued in force by section XX of the sched- ule to that instrument. Jb. Levying assessments.—Sec. 6, Art. XIII, of the Ohio Constitution, was not repealed by the adoption of Sec. 13, Art. XVIII, or of any other, Home Rule provisigns in said article; the provisions of a city charter relating to assessments, if inconsistent with state statutes, must yield to the requirements of said statutes. Berry v. Cols., 104 O. 8. 607. Right to enact police regula- tions.—If a muncipal corporation adopts a charter in accordance with the provisions of Art. XVIII, Sec. 7 et seq., of the Constitution of Ohio, such municipal corpora- tion may then enact police regula- tions which are different from those-found in the General Code of Ohio. Stange v. Cleveland, 25 Ge ot INS: O90 ait 94: 0.8. 377. See also Greenburg v. Cleve- land, 98 O. S. 282; Fremont v. Keating, 96 O. S. 468. Ordinances relating to liquor traffic.—By virtue of § 3, Art. XVUI of the constitution, municipalities may enact and enforce ordinances not inconsistent with the general laws of the state prohibiting the manufacture, possession or sale of intoxicating liquor, etc. Heppel v. Columbus, 106 O. S. 107. Struthers v. Sokol, 108 O. S. 263. Ordinance requiring auto to stop, valid.—An ordinance of a charter city, general in nature, setting forth general and usual rules of the road, for a locality covered by its terms, passed in the valid exercise of the HOME RULE. Art. XVIII, See. 14 local policy power, guaranteed under Section 3, Article XVIII of the Ohio Constitution, and not in conflict with general laws, must be given full force and effect as a law of the locality to which it applies. State v. O'Mara, 105 O. S. 94. Zoning ordinance.—Under’ the power granted by this section any municipality has the power to enact a zoning ordinance. State, ex rel., v. Durant, O. L. R. Jan. 14, 1924, page 395. Occupational tax.—Under the grant of power of local self-gov- ernment provided for in See. 3, Art. XVIII of the State Consti- tution, the city of Cincinnati, as long as the State of Ohio through its General Assembly does not lay an occupational tax on busi- nesses, trades, vocations and pro- fessions followed in ‘the state, may raise revenue for local pur- poses through the instrumentality of occupational taxes. State, ex rel.; v. Carrel, 99)O. S: 2203) oan Con HvereCarrel 32. On (OR AN tGD, Affirmed, Loan Co. v. Carrel, 106 O. S. 43. See also Op. Atty. Gen. (L979 povoLl. Local regulations inconsistent with statutes—A charter city may adopt regulations as_ to weight of loads and width of tires on its streets, different from those prescribed by statute. Froelich v. Cleveland, 99 O. S. 376. An ordinance adopted pursuant to the powers reserved in charter, purporting to define a ‘‘suspi- person,’’ and imposing a penalty, is a valid exercise of the power conferred by Art. XVIII of the constitution as amended. Welch v. Cleveland, 97 O. S. 311. A charter city has the power cious Art. XVIII, Sec, 14 THE OHIO MUNICIPAL CODE, to fine and make punishable the offense of assault and battery, notwithstanding the fact that such offense has already been made punishable by statute. The legislature has not exclusive po- lice ‘power in this particular. Kearney v. Cincinnati, 22 N. P. (N. 8.) 255. An ordinance making ‘‘attempt at pocket-picking’’ a misdemean- or will be sustained under home- rule amendment. See Greenburg v. Cleveland, 98 O. S. 282. Local standard of time.—A mu- nicipality under a home-rule char- ter may establish a _ different standard of time from that con- tained in § 5979 G. C., for regula- tion of purely municipal affairs. State, ex rel., v. Cincinnati (Ohio Sup. Ct., decided June 22, 1920). Provisions as +0 contracts.— Where a board of purchase of a city governed by a charter is au- thorized to make expenditure in excess of $500.00 only when au- thority for such expenditure has been granted by the council, a contract in excess of $500.00 made by such board of purchase with- out authority of council is void. Columbus v. Chicago Bonding Co., 11 Oh. App. 42. Such contract is void even though the charter does not con- tain a provision making a con- tract executed without such au- thority void. Jb. Publication—A city charter may regulate the publication of ordinances authorizing the issu- ance of bonds and the notices of the sale of bonds. Op. Atty. Gen. (1920), p.. 655. Telephone rates; authority of 1256 charter city subordinate to regu- lations of public utilites commis- sion.—See Telephone Co. v. Cleve- land, 98 O. S. 358. Same as to rates for other service. See Lima v. Pub. Util. Com., 106 O. S. 379 and 382. Moving picture films; right of charter city and State Board of Censors.—An order issued by the State Board of Censors permitting the exhibition of a moving pic- ture film can not be questioned, even in a home charter city hav- ing an ordinance covering the same subject, except by applica- tion to that board for a review of its action, or by bringing suit in the Supreme Court to have the order amended, vacated or set aside. Epoch Producing Co. v. Davis, 19 N. P. (N. S.) 465. Moving picture theater.—An or- dinance of a charter city provid- ed for the establishment of a municipal moving picture theater, and apportioned money from the general fund for such purpose. Held, whether a municipality ac- quires authority ‘‘to exercise all the powers of local self-govern- ment’’ by adopting a charter, or adopts a charter as an _ indis- pensable mode of exercising the authority, the powers to be ex- ercised, being governmental, do not authorize taxation to estab- lish and maintain moving picture theaters. State, ex rel., v. Lynch, 88 O. S. 71. Power to issue bonds for pub- lic hall—The city of Cleveland has authority to build a hall for auditorium purposes and to issue bonds therefor, and may use such auditorium for any lawful pur- pose and derive revenue from 1257 such use; but said city has no authority to issue bonds to be used primarily for a building for exposition purposes, or to use por- tions of its auditorium for lodge rooms, concert’ halls, show rooms, or theaters, as a purely private enterprise. Heald v. City of Cleveland, 19 N. P. (N. 8.) 305. Appropriation for celebration of historical event.—The appropria- tion made by the council of the eity of Cleveland toward the ex- pense of celebrating the centen- nial anniverasry of Perry’s Viec- tory on Lake Erie, was an ap- propriation for a public purpose and was authorized by the char- ORDER OF PROCEDURE HOME RULE. Art. XVIII, Sec. 14 ter of that city. Cleveland v. Coughlin, 16 N. P. (N. 8.) 468. This celebration was certainly an exercise of a governmental as distinguished from a proprietary function of the city. It seems to come well within the definition of the phrase of ‘‘all powers of local self-government’’ as given in State, ex rel., v. Lynch, 88 O. oie lal | MAG Illegal advertising of bond elec- tion.—Charter city cannot appro- priate money for special advertis- ing to educate the electors on the subject of bond issue pending on election. Op. Atty. Gen. (1920), p. 1098. FOR ADOPTION OF CHARTER. 1. Petition filed with council, signed by 10 per cent. or more of the electors of the municipality. This percentage is based on the total vote cast at the last preceding general municipal election. 2. Ordinance providing for submission to the electors of the ques- tion ‘‘Shall a commission be chosen to frame a charter.’’ This ordi- nance shall require that the question be submitted at the next regular municipal election if one is to occur not less than 60 days nor more than 120 days after its passage; otherwise at a special election to be held within the time aforesaid. If this ordinance is passed pursuant to such petition, it must be passed ‘‘forthwith.’’ Council may, with- out petition, pass such ordinance, by a two-thirds vote of its members. 3. Certification of ordinance to board of elections of the county. 4. Proclamation of election. While not specifically provided for, mayor should make such proclamation, which should be published in a newspaper printed in the corporation, at least ten days previous to the election. (See Sec. 4837, G. C.). 5. Election conducted by regular election authorities. Ballot must be without party designation, and shall, in addition to submitting above question, contain provision for the election from the munici- pality at large, of 15 electors who shall constitute a commission to frame a charter, provided a majority of the electors voting on the submitted question vote in the affirmative. 6. Preparation of charter by commission and report to city coun- cil. This report should also fix a date for election on adoption of. charter, which date must be within one year from date of election of Art. XVIII, Sec. 14 THE OHIO MUNICIPAL CODE. 1258 the commission. This report should be made in time to allow oppor- tunity for action by council and mailing copies, as below noted. 7. Ordinance providing for election on adoption of charter. 8. Proclemation of election by mayor. 9. Mailing Copies. Not less than 30 days prior to election, clerk of the municipality must mail copy of the proposed charter to each elector whose name appears on the poll or registration books of the last regular o¥ general election. . 10. Election conducted by regular election authorities. Majority vote of the electors voting on the question necessary for adoption. 11. Ordinance directing certification to Secretary of State of copy of charter adopted. 12. Certification to Secretary of State. FORM OF PETITION FOR SUBMISSION OF QUESTION OF CHOOSING CHARTER COMMISSION. To the Council of the city [or village] of ............ » Ohio. We, the undersigned, being in the aggregate ten per centum or more of the electors of said city [or village], do hereby respectfully petition your honorable body to enact such legislation as is required by Article XVIII, Sec. 8 of the Constitution of Ohio, to submit to the electors of said city [or village] the question ‘‘Shall a commission be chosen to frame a charter.’’ Names Addresses FORM OF ORDINANCE TO PROVIDE FOR SUBMISSION. AN ORDINANCE 'No. ........ To provide for the submission to the electors of the city [or village] of ............ , Ohio, of the question ‘‘Shall a commission be chosen to frame a charter’’ and for the election of the members of the commission. Whereas on “the 273. e5 GRY OF, Cin male ass ey 19....,; there was filed with this council a petition signed by more than ten per centum of the electors of the city [or village] of ............ praying for the submission to the electors of the question, ‘‘Shall a commission be chosen to frame a charter;’’ now, therefore, Be it ordained by the council of the city [or village] of ........ ; state of Ohio, two-thirds of all members elected thereto concurring: Section 1. That the question ‘‘Shall a commission be chosen to frame a charter’? be submitted to a vote of the qualified electors of ‘the said city [or village], at a special election to be held on Tuesday, The pPeesast day rok wticeiiete. gunk: », 19...., at the regular place or 1259 HOME RULE. Art. XVIII, See. 14 places of voting in said city [or village], as established by the Board of Deputy State Supervisors and Inspectors of Elections of .......... County, Ohio, between the hours of 5:30 a. m. and 5:30 p. m.; that said question shall be submitted in the form following, to-wit: ““Shall a commission be chosen to frame a charter?’’ and those who vote in favor of the proposition shall have written or printed on their ballots the word ‘‘Yes’’, and those who Vote against the same shall have written or printed on their ballots the word ‘‘No’’. Section 2. That the ballot upon which the question provided for in Section 1 hereof shall be submitted shall bear no party designa- tion; it shall have printed or written thereon the name of all elec- tors who shall have been nominated as provided in Section 3 hereof, and such directions as will aid the elector, as ‘‘ Vote for not more than Fifteen,’’? and the like, and such certification of the election officers upon the back of the ballot as is prescribed by law. In case a majority of electors voting upon the question ‘‘Shall a commission be chosen to frame a charter?’’ shall have voted in the affirmative, then and in that event, and not otherwise, the fifteen electors who shall have received the largest number of votes for mem- bers of such commission, shall be and constitute ‘‘A commission to frame a charter.’’ Section 3. All nominations for members of such commission shall be made by homination papers signed by petitioners not less in num- ber than one for each one hundred persons who voted at the last pre- ceding general municipal election, and shall be certified and filed in the same manner as is provided by law for the filing and certification of the nomination papers of candidates for municipal offices in annual registration cities, not less than twenty-five days prior to the said Ae Ae OWE pa lie vices Pan x ving) LOo ls aie Section 4. The ballots shall be printed and prepared as follows: The whole number of ballots to be printed for the election of per- sons to act as members of such charter commission shall be divided by the number of candidates for said offices, and the quotient so ob- tained shall be the number of ballots in each series of ballots to be printed as follows: The names of candidates shall be arranged in al- phabetical order and the first series of ballots printed; then the first name shall be placed last and the next series printed, and so shall the process be repeated until each name shall have been first. These ballots shall then be combined in tablets, with no two having the same order of names together. Section 5. The ballots shall be so printed as to give each elec- tor a clear opportunity to designate by a crossmark in the blank en- closed space on the left, and before the name of each candidate, his choice of particular candidates. Fifteen blank spaces shall be left at the end of the list of candidates in which the voter may insert the Art. XVIII, Sec. 14. THE OHIO MUNICIPAL CODE. — 1260 name of any person, or persons, not printed on the ballot, for whom he desires to vote. A cross shall be placed at the left of the name of each candidate for whom the elector desires to vote. All such marking of ballots shall be with a black lead pencil. Section 6. That the mayor be and he is hereby directed to give public notice of the time and place of holding such election, in the manner provided by jaw for the holding of regular municipal elec- tions. Section 7. That the clerk be and he is hereby directed to certify a copy of this ordinance to the board of elections of ............ County, Ohio. Section 8. This ordinance shall take effect and be in force from and after its passage and legal publication. IP ASSO Cer ae ateai te eect evel wee seo ta nae ne 2 PANEL O SG deci vel eucaleck fe ire, che ender nie eneeis President of Couneil. (NOTE.—If the council acts without petition, the ‘‘whereas’’ in the above ordinance should be omitted.) FORM OF MAYOR’S PROCLAMATION OF ELECTION. Election Notice. Notice is hereby given that in pursuance of an ordinance of the council of the city [or village] of ............ , Ohio, passed on the Aas ahs day of ............, 19...., there will be submitted to the qualified electors of said city [or village] at the next regular munici- pal election [or at a special election] to be held on Tuesday, the ...... GE GOL He lan i leg arnt , 19...., at the regular place or places of voting in said city [or village] between the hours of 5:30 a. m. and 5:30 p. m., the question ‘‘Shall a commission be chosen to frame a charter.’’ Those who vote in favor of said proposition shall have written or printed on their ballots the word ‘‘Yes’’, and those who vote against the same shall have written or printed upon their ballots the word ‘“No’?, At the same election fifteen persons shall be chosen as members of ‘‘a commission to frame a charter’’, in accordance with the pro- visions of Article XVIII, Sec. 8 of the Constitution of Ohio. Given under my hand and the corporate seal of the eity [or lees Tt. Of Je roel st vatee yi this «i. ayaa Chere Oils Oe a hae ie 19. ds oe ie. 6) ay 6) SR, Oe we) Te feKe q ellie) bes heehee me aes) e, 1261 HOME RULE. Art. XVIII, Sec. 14 FORM OF REPORT BY CHARTER COMMISSION. To the Council of the city [or village] of ........... The undersigned, being a majority of the members of the charter commission of the city [or village] of ............ , elected thereto at an election held in said city [or village] on the ........ day of SHY. Ns , 19...., submit herewith a draft of a charter for said city [or village], and designate the ........ Ga VirObin: oats ols De. tate as the time for an election on the adoption of said charter. (Signed by the members of the commission or a majority of them.) Members of the Charter Commission of the city Lortvillaga yl nf. 4 etetin e. ¢ » Ohio. For various forms of charters which have been adopted by munici- palities of Ohio, see Page’s Compact Edition, General Code, Vol. 1 following Sec. 3515-71). FORM OF ORDINANCE PROVIDING FOR SUBMISSION OF CHARTER TO ELECTORS. OrdimaneeoNos aides see To provide for an election on the adoption of the proposed charter for the .city Lor tvillage] 3535, 3552, 3561, 3572, 3577. Plats, vacation of, duties as to, 3596, 3601 to 3603. duties as to renumbering lots, 3604 to 3609. imperfect, penalty for recording, 3587. 1422 . INDEX. [Sections referred to by number only are in Part I] Recorder of County—Continued Proceeding creating, advancing, etc., municipalities, 3524, 3534, 3535, 3552, 3561, 3572, 3577, Recreation Board. Appointment, powers and duties, 4065-2 to 4065-7. Bond issue, 4065-6. Expenses of operation, 4065-7. Joint operation, 4065-5. Recreation Centers. Grounds and buildings for, 4065-1. Control of, 4065-1 to 4065-7. Reduction. Of cities to villages, 3500 to 3511. Referendum. (See Initiate and Referendum) Ordinances, of, 4227-2, et seq. Reform School. Municipality to erect, maintain and regulate, 3624. Reformatory Institutions. (See Workhouses, etc.) Appropriation of property for, 3677. Bonds for, 3939. Inspection by local authorities, 2497, 2974, pp. 1058, 1059. by state board of charities, 1352, et seq., p. 1056. Management of, in cities, 4370. in villages, 4356. Municipal reformatory institutions, 4097 to 4153. Penalty for refusing permission to inspect, 12933, p. 1059. Refuge, Houses of. (Sce House of Refuge) Registry. Births, deaths, and marriages, of, 4419. Bonds, 3928 to 3930. Removal of Officers. By council after charges— charges filed by mayor, 4263. hearing, 4264. judgment of removal, 4264. oaths administered, 4267. process for witnesses, 4267. suspension pending hearing, 4265. By council in villages, 4216. By heads of departments, 4247. By mayor, 4250. INDEX. - 1423 [Sections referred to by number only are in Part IJ] Removal of Officers—Continued By probate court— charge filed with probate court, 4670. citation, 4670. costs and expenses, 4675. counsel, accused to have right to, 4671. guilty, removal of officer on finding of, 4674. hearing, time for, 4671: jury— challenges, 4672. demand for, 4671. prosecuting attorney, conduct of case by, 4671. solicitor, conduct of case by, 4671. : trial, 4673. witnesses, 46738. Chiefs of police and fire, of, 486-19, p. 1148. In classified service, restrictions, 486-17, 486-17a, pp. 1144, 1145. Mayor, of, by governor, 4268, 4269. Remedies of officer, n. p. 675. Statutory causes and methods exclusive, n. p. 673. Re-Numbering Lots. In municipalities, additions, etc., 3604 to 3609. Repeal. Ordinance, repeal of, on amendment, 4226. Reports. Auditor, of, 4289, 4512. Board, health, of, 4476. Cemetery, director of public service, report of, 4171 to 4178. Cemetery, financial report as to, 4170. Cities, etc., reports in, must be made when, 3796. City or village, to auditor of state, 4289. Civil service, as to, 486-19, p. 1148. Director of public safety, by, 3789. Director of public service, by, 3789, 4171 to 4178. Hospital trustees, of, 4052. Marshal, as to stolen property, to mayor, 4398. Mayor, 4271. Officer, municipal, of, 3789, 4286. Police court, of fines, to city auditor, 4599. Publieation of municipal, 4228, 4229, 4232. Solicitor of corporation, to council, 4317. Treasurer of, 4299. Trustees, reports of— cemetery, of, 4171 to 4178. hospital funds, of, 4052. Resolutions and By-Laws. (See Ordinances and Resolutions) 1424 —C- INDEX. [Sections referred to by number only are in Part [] Return. Improvements, return as to service of notice concerning public, 3818. Marshal, return of writs by, 4542. Notice of resolution to improve, etc., in municipalities, 3818. Sidewalks, return as to service of notice concerning, 3854. Revenue. Anticipation of, loans in, in municipalities, 3913 to 3914-1. Revision of Plats. (See Plats) Provisions relating to, 3604 to 3609. Riding Schools. License of, 3670. Rink Companies. Powers of, 10193, p. 1233. Riot. Suppress, power to, 3658, 4386. Roads. (See Streets, Bridges, Public Ways) Changes in for waterworks, 3783-1. County roads party in municipality, 11938, et seqg., p. 880; 6949, et seq., D. 886. agreement with county commissioners for proportion of costs, 6950, p: 887. assessment of cost, 6951-1, p. 889. improvement of, to greater width than proposed by county, 6953, p. 889. municipality may pay proportion of cost of construction, 6950, p. 887. & National roads partly in municipality— control of, by municipality, when, 7533, p. 892. State aid in construction of, 1193, et seq., p, 880. Township roads partly in municipality, 7177, p. 880. Turnpike companies, roads of— appropriation of, by municipality, 3716. cost to keep in repair, 3717. extension of municipal limits so as to include, proceedings, 3719, 3720. proceedings to enforce repairs, 9244, 9245, pp. 893, 894. repair of, in municipalities, 9243, p. 893. right to take toll not to be impaired until appropriation, 3722. road tax, distribution of, 5649, p. 897. tollgates not to be erected in municipality, 9254, p. 894. Weight of loads on, 7246-7251, p. 897 et seq. Roller Skating, Law as to, copy of, to be posted, 13393, p. 1227. Mayor’s permit for, 13393, p. 1227. INDEX. 1425 [Sections referred to by number only are in Part i { Rolling Roads. Use of streets for, 3645. Rooms. (See Buildings) Municipality to compel owner to alter or modify for healthful purposes, 3639. Roster. Persons in classified service in cities, of, 486-7, p. 1130. Rules of Court. Mayor’s court, of, 4557. Police court, of, 4575. — S Salary. (See Fees; Compensation) Sale. Bonds, of, 3922 to 3926. Corporate property, of, 3698. Power of municipal corporation, limitation of, 8699 to 3703. Proceeds of sale, 3704, 3706. Stolen property recovered by police, of, 4401. Street sweepings, of, 3705. Sale or Lease of Property. (See Property) Order of procedure. Saloon. Closed in case of riots, how, 4261. Municipal regulations, 3661. Sandusky. Municipal court in, n. p. 826. Sanitary Officer. (See Board of Health; Sanitary Police) Sanitary Plants, 4467 to 4476. Appropriation of property for, 4468. Approval of state board of health, 4469. Board for, 4472, et seq. appointment, 4472. compensation, 4474 how chosen, 4473, powers of, 4474. Contracts for removal of garbage, etc., 4470, 4471. Definition of, 4467. 1426 INDEX. [Sections referred to by number only are in Part 1 Sanitary Plants—Continued Plans and estimates for, 4468. Power of municipality to erect, etc., 3649. Sewage disposal plants— care and management of, in cities, 4326. in villages, 4356. power to erect, 3649. Sewage farms, etc., authorized, 3891. control and management of, in cities, 4326. in villages, 4356. Sewer pumping station authorized, 3890. Tax levy to maintain, etc., 4475. Sanitary Police. Appointment, etc., of, 4411. Powers of, etc., 4411, 4411-1. Relief or pension fund of, 4388, 4632 to 4647. assessments on members for, 4637, beneficiaries, who are, 4645. code provisions not to restrict, 4383. contributions by members, 4641. created how; consists of what, 4632. custodian of; bond, etec., 4642. distribution of, rules, etc., 4635. donations to, 4640. gifts, devises, etc., to, 4640. invested, how, 4643. tax for, 4637, 4638. trustees of, 4632 to 4635. election, 4633. canvass of the vote, 4634. officers of board, 4636. report of, 4647. trustees of— successor of similar boards, 4646. term, 4635. tie vote, 4634. Sanitary Police Pension Fund. (See Sanitary Police) Provisions as to, 4647. Scarlet Fever. Report of, 1243, p. 1162. Scavengers. License of, 3670. Power of board of health to employ, 4463. School Funds. Treasurer of, 4763, p. 1120. INDEX. 1427 [Sections referred to by number only are in Part T] School Houses. Abatement of nuisances in, 4424, Closing, disinfecting, ete., during epidemics, 4448. Grounds for, etc., exchange of, 3707 to 3710. Inspection of, etce., by board of health, 4424, 4448. Nuisances in, around, etc., abatement of, 4424. Safety of, examination as to, 4648 to 4657. Water for, no charge by municipality, 3963. Screens. Vestibule of electric car, for, 12788, p. 950. Seal. Auditor, of, 4277. Clerk, of, 4282. Corporate seal, 4550. Impression, how made, 32, p. 1083. Mayor, of, 4550. Official seals, 31, p. 1083. Police court, of, 4572. Police justice, 4545, Power of municipality to use a seal, 3615. Sealer of Weights and Measures. (See State Sealer, etc.)- Appointment of, 4318. Compensation of, 4319. Duties of, in city or village, 4318 to 4322, Oath and bond of, 4320. Sealing of weights and measures, 4322. Seizure of incorrect weights and measures, 4322. Secondhand Dealer, Dealing with minor, and between certain hours prohibited, 6373, De digs. License and regulation of, 3670. Record, must keep, 6370, p. 1229. Report, to make, daily, to mayor, 6STL. De 12305 Sign and record, must keep, 6370, p. 1229. Secondhand Stores and Junk Shops. (See Junk Shops), Provisions as to, 6370 to 6373, pp. 1229-1231. Secretary of State. Bureau of vital statistics, system established, 197, p. 1159. Municipalities, duties as to— annexation of territory to, 3552, 3572. creation of villages, 3525. proclamation as to class and population, 3498. reduction of cities to villages, 3508, Surrendering corporate powers, 3513. 1428 INDEX. [Sections referred to by number only are in Part IJ Sentence, Police court, in, 4576. Probation officer, appointment in municipal corporation, 4587, 4588. Workhouse, to, 4128. execution of, 4132. Service. Appropriation of property by municipality, in case of, 3682. Assessment proceedings, in, 3818. Citation for disobedience of board of health order, of, 4422. Copy of resolution directing owner to fill lot, 3654. House of refuge officers, in actions against, 4124. Notice of application to vacate street, of, 3731. Notice of resolution to appropriate property, 3680. Notice to construct, clean, etc., sidewalks, of, 3854, 3855, 3862. Notice to light railway or bridge, of, 3764. Sewage Disposal Works, etc. Appropriation of property for, 3677. Bonds for, 3939. Joint with county or municipality, 6602-10, et seq., p. 904. Plants for, 4467 to 4476. Powers of city or village as to, 3647, 3649. Sewage Forms. Authorized, 3891. Sewage Purification Works. Conduct of, when assumed by state board of health, 1256, p. 1170 Improper operation of, 1255, p. 1169. Sewage System. (See Sewage, etc.; Sewers, etc.) Approval of state board of health necessary, 1240, p. 1162. Installation of without approval of state board of health, 1240, p. 1162. Sewer Company. Municipality— buy out, when must, 10159, p. 910. may contract with, 10160, p. 911. powers of, not affected by, 10162, p. 911. Powers of, etc., 10157, p. 910. : Rates, company may prescribe, 10161, p. 911. Sewer Districts. (See Sewers) Sewer Pumping Stations. (See Sanitary Plants) Authorized, 3890. Sewer-Tapper. License, etc., of, 3637. ——s INDEX. 1429 [Sections referred to by number only are in Part TI] Sewerage. (See Sewage, etc.; Sewers; etc.) Provisions relating to, 10157 to 10162, pp. 910, 911. Sewers. (See Samtary Plants) Appropriation of property for, 3677. in case of joint sewers, 3883. Assessments for. (See Assessments), 3871, et seq. authorized, 3812. limitation on amount of, 3819. in case of joint sewers, 3883, ordinance making, 3881. Board of health, powers of, as to, 4420, 4421. Bonds for, 3881, 3939. form of, 3921. (And see “Forms”) Connections with may be compelled, 3812-1. by property owners outside municipality, 10160-1, p. 911. Construction of. (See “Improvements, Public’) authorized, 3647. borrowing money for, 3888. contract for, how let, 3880. in case of joint sewers, 3886. designation of portions for, 3877. estimate of cost, 3877. ordinance authorizing, 3879. plan for. (See “Plan” below) resolution of necessity, 3878. publication of, 3878. without adopting plan, etc., 3882. Districts for; requirements as to, 3872. Improvement and repair of, 3889. supervision of, in cities, 4325. supervision of, in villages, 4364. Intercepting sewers, 3876. Joint sewers, between municipalities, 3871, et seq., 6602-10, et seg, p. 904. appropriation of property for, 3883. assessment of cost of, 3884; 6602-12, p. 905. authorized, 3883; 6602-10, p. 904. bonds for, 3885; 6602-12, p. 905. contracts for, 3886; 6602-10, p. 904. cost of, how paid, 3884; 6602-12, p. 905. Management and control of, 3887; 6602-11, p. 904. Joint sewers and disposal works, contract with county, 6602-10 et seq., p. 904. Joint sewer districts, 6602-la, et seq., p. 902. Liability of municipality for negligent construction, n. p. 416. Main sewers, apportionment of costs, 3879. Municipal sewers, 3871 to 3891. Order of procedure in improvements, p. 418. Powers of municipalities as to, 8647.5 1430 INDEX. [Sections referred to by number only are in Part I] Sewers—Continued Plan or system of— amendment of, 3875, 3876. construction, without, 3882. is required, 3871. notice of completion, 3874. objection to, 3875. requirements as to, 3871, 3873. State “institution”, contract with, 1809-1, p. 905. Sheep. Inspection of, 3652. Running at large, 5809 to 5823, pp. 915, 917. Statistics, 3356. Shooting. Municipal corporation, in, 12634, p. 912, 12635, p. 912. Shooting Galleries. Regulation of, 3659. Shows. License of, 3657, 3672; 6374, p. 1235. municipal corporations may impose additional, 6375, p. 1236. may regulate, etc., 3657, 3672. Permit for; how obtained, 63874, p. 1235. fees for, 6374, p. 1235. Traveling, must have license, 6374, p. 1235. Sickness. (See Board of Health; Infectious Disease) Sidewalks. (Sec Streets, Alleys, etc.) Assessment for, authorized, 3812, 3857, 3860, 3864. bonds in anticipation of, 3860, 3865, 3869. certified to county auditor, when, 3865. Bonds for village portion of cost, 3870. Cleaning, repair, ete., of— by abutting owner, 3853. cost assessed on abutting property, etc., 3860, 3863. done at owner’s expense, when, 3857, 3863. notice to owner as to, 3854 to 3856, 3862. ordinance, etc., requiring, 3853. resolution requiring, notice of, 3862. supervision of, in cities, 4325. in villages, 4364. Construction of— along one side of street, 3867. property of municipality, 3866. assessment for. (See “Assessments” above) by city or village authorized, 3864, 3868. cost assessed on abutting property, 3857, 3863. ——— INDEX. | 1431 [Sections referred to by number only are in Part Tj Sidewalks—Continued Construction of—continued municipality may make, when owner fails, 3857. ordinance to provide for, 3853. resolution requiring, notice of, 3854, 3856. supervision of, in cities, 4325. in villages, 4364- Control of, and duty to keep open, etc., 3714. Driving on; penalty, 12639, p. 913. In villages, on petition, 3868 to 3870. Injuring, etc., 12639, p. 913. Obstructing or digging up; how punished, 12639, p. 913. Order of procedure in improvements, p. 402. Sign. Regulation of, in cities and villages, 3637. Sign-painters. Advertising, to license, 3674. Sinking Fund. Competitive bidding for, by banks, 4515. Library, 4014 et seq. investment of, 4018. -tax for, 4017. trustees of— appointment, term, etc., 4014: bond of members, 4015. organization of, etc., 4016. Municipal corporation of, 4506 to 4522. bonds, 4510 to 4522. bonds of municipality first offered to, 3922. deposits of, competitive bidding, etc., 4515, 4516. funds invested how, 4514. levy for, 4506. preference given to, 4513. moneys, deposited and drawn how, 4518. investment of, 4514. premium and accrued interest on bonds transferred to, when, 3932, securities, etc., deposited where, 4518. withdrawn how, 4518. tax commissioners in cities, act as, 4523. trustees of— abolished, when, 2295-14, p. 1224. appointment, term, etc., in cities, 4507. bond, compensation, etc., of, 4508. bonds issued by, 4522. clerk of, who acts, 4509. consists of whom in villages, 4507. deposits by, bidding for, 4515, 4516. 1482 INDEX. [Sections referred to by number only are in Part I] Sinking Fund—Continued Municipal corporation of—continued. trustees of—continued. duties and powers of— as to bonds, ete., 4511 to 4522. examinations, investigations, etc., 4519. moneys due fund, 4511. payment of obligations, 4517. employes of, 4509. meetings, etc., of, 4510. money, how drawn and deposited, 4518. money, how invested, 4514. organization of, 4509. reports by, as to tax levy for sinking fund, 4513. to council, etc., 4511. reports to, as to amounts to credit of sinking fund, 4512. ‘as to indebtedness, 4511. reserve funds may be deposited in city treasury instead of in bank, 4516-1. rules, etc., of, 4510. tax commission of cities constitute, 4523. treasurer succeeds trustees, when, 2295-14, p. 1224. vacancy, 4507. yea and nay vote, etc., 4510. Unexpended balances transferred to when, 3804. Village, of, who constitute, 4507, Sinking Fund Tax. (See Sinking Fund) Sinking Fund, Trustees of. (See Sinking Fund), Sinks. Regulation of, by board of health, 4420. Skating Rink. Permit for, 138393, p. 1227. Slaughterhouse. Inspection of, 4458. Smith Tax Law. 5649-1 to 5649-6, pp. 1009, 1020. Construction of by supreme court, n. 2, p. 286. Smoke, Consumption of, regulation of, 3650. Snow and Ice. Sidewalks kept free from, 3853, 3862 Soldiers. (See Militia) Preference to, in appointment, ete., 12893, p. 1104. INDEX. 1483 [Sections referred to by number only are in Part I] Solicitor. Adviser, legal, of municipal officers, 4309. Annexation to municipalities, duties as to, 3559. assistants, 4306. ; Attorney for directors and officers, 4305. Bond of, 4214. Bonds, contracts, etc., preparation of, 4305. Bonds, official preparation of, 4667. Claims for damages from improvements, inquiry into, 3827, 3829. Collecting indebtedness. of officers, 4284. Contracts prepared by, 4305. for hospital, 4029. Election of, 4303. ' Employees, appointment of, 4247. Executive officer, is, 4246. Fines collected by, paid to treasurer, 4310. Form of ordinance providing for village solicitor, p. 630. Injunction, applying for, 4311. on request of taxpayer, 4314. License of person acting as, 3673. Lots, unlawful sale of, duties as to, 3588. Mandamus, against delinquent officers, 4313. Oath, 4666. Opinions, duty to give, 4309. Payment over of moneys by, 4310. Prosecuting attorney of police and mayor’s courts, 4306. designation of assistant to act, 4306. Prosecution of officers for malfeasance, 4671. Qualifications of, 4303, 4304. Report of, annual, 4317. Salary of, 4214. Suits for forfeiture, specific performance, etc., 4312. Term of, 4303. Vacancy, 4252. Village, of, 3809, 4220. Special Charter. (See Home Rule) Speed. (See Driving; Horse) Commercial cars, of, 7249, p. 900. Motor vehicle, unreasonable speed of, 12603, p. 918. local authorities without power to regulate, 6307; 12608, pp. Olin 919, Of railroad trains, municipal regulation, 3781. Of street railway cars, etc., 3632. Sprinkling Streets. (See Streets, Alleys, etc.) Stable. Boards of health may regulate, 4421. Livery, municipality to regulate and license, 3670. 1434 INDEX. [Sections referred to by number only are in Part I] Stages. Quarantine on, 4425. Stands for, and for cabs, etc., established, 3635. Tires, width of, to regulate, 3635. Stagnant Water. Land in municipal corporation, draining of, 3653. Removal of, at owner’s expense, 3655. Stand. Obstructing sidewalk with, 12639, p. 913. To establish for cabs, etc., 3635. State Board of Health. Appointment of municipal health officer when, 4405. Commissioner of health, successor to state board, n. p. 1161. Conferences of health officers, 1245, 1246, p. 1163. Contagious diseases, report of, 1243, p. 1162. power to make regulations concerning, 1237, p. 1160. power of state board of health on failure of local authorities to act, 1244, p. 1162. Corpse, of deceased persons, power to make regulations concern- ing, 1237, p. 1160. Diphtheria, report of, 1243, p. 1162. Effluent, approval of state board of health, when necessary, 1240, p. 1162. Emergency, power to act when local board of health is not, 1237, p. 1160. Epidemic, power of state board of health on failure of local authorities to act, 1244, p. 1162. Garbage disposal plant, approval of state board of health as to effluent, 1240, p. 1162. Local board must enforce rules of, 1238, p. 1161. Purification system, approval of state board of health necessary, 1240, p. 1162. Quarantine— power to declare or modify, 1237, p. 1160. regulations govern local boards, 4426. rules of municipal boards reported to, 4425. Report of municipal board to, 4476. Sanitary plant, approval of plans to, 4474. Sewage, purification works, orders for, 1255, p. 1169. Sewerage system, approval of state board of health necessary, 1240, p. 1162. Water supply system, appreyal of state board of health neces- sary, 1240, p. 1162. complaint of, 1252, p. 1165. duties as to, 1249 to 1261, pp. 1164-1176. INDEX. 1435 [Sections referred to by number only are in Part I] State Fire Marshal. Dangerous buildings, etc., order for removal, 835, p. 1123. appeal, 835, n. p. 1124. penalty for failure to obey, 837, p. 1124. Examination of buildings, etc., 834, p. 1128. Fire, investigation, hearing and report, 824, p. 1122. Investigation in case of fire, 824, p. 1122. Removal of dangerous building material, etc., 835, p. 11238. disobedience of order, penalty, 837, p. 1124. State Sealer of Weights and Measures. Copies of standards for use of cities and villages, 7968, p. 1122. Secretary of agriculture shall be; powers and duties, 7965, p. 1121. Station House. Contracts as to, 4371. Established in cities and villages, 3624. Hard labor, in, 4127. Maintenance of prisoners in, 4125, 4126, 4127. Management of, in cities, 4370, 4371. Station-house keepers, 4374. Statistics. Assessor’s duties— gather statistics, to, 3356, 3364, pp. 1000, 1003. return statistics, to, 3357, p. 1002. penalty for not making out and returning statistics, 3358, p. 1003. Births, marriages, deaths, by boards of health, 4419. Steam. To grant use of streets to lay pipes for, 3644. Steam Boilers. Jurisdiction of offenses, 13423, p. 1201. Stolen Property. Disposition of— by police force, etc., 4898 to 4400; 12937, p. 1125. officer neglecting duty, etc., as to, 12937, p. 1125. sale of unclaimed; proceeds, 4401. Store. Sanitation, municipality to compel owner to modify, for, 3639. Temporary stores, municipal regulation, 3673, 3676. Stream. Changes in, for waterworks, 3783-1. Depositing dead animal, etc., in; penalty, 12649 to 12651, pp. 1193, 1194. Obstructions, removal from, 3653. Putrid substance, placing in, 12784, p. 1196. 1436 INDEX. [Sections referred to by number only are in Part I] Street Car. Conductors, municipality to regulate employment of, 3643. Speed, to regulate, 3632. Street Car Company. (See Street Railroad) Street Car Tracks. (See Street Railroad) Street Cleaning. (See Streets, etc.) Street Commissioner. Appointment of, 4251, 4363. made when, 4251. Assistant to, appointment, compensation, etc., 4365. Compensation, 3808-1, 4214, 4219. Duties and powers of, 4363. defined by council, 4365. Marshal eligible to, 4363. Qualification of, 4363. Term, vacancies, etc., 4363. Street Improvements. (See Assessments; Streets) Street Musicians. License, etc., of, 3670. Street Railroad. Application for grant, notice of, 3769 to 3771. Appropriation of property, ete., 9108, 9109, 9115, 9116, pp. 926, 927, 929, 930. compensation and damages, 9110, 9111, p. 928. oath of jury, 9110, p. 928. Appropriation of property by municipality for, 3677. Authority controlling public road must consent, 9112, p. 928. to construct or extend, granted by whom, 9109, p. 922. Board of public works must consent, when, 9112, p. 928. Center aisle required on, 9149-6, p. 948. Conductors on cars, 3643. Consent of abutting owners necessary, 3770. not necessary, when, 9106, p. 925. withdrawal of, 9107, p. 926. Council to prescribe terms and conditions, 3768, 9113, p. 929. Consent of owner of highway occupied by road, 9112, p. 928. Consolidation of, 9127, et sey., p. 934. Constructed or extended, may be, where, 9100, p. 922. Construction of ordinances, n. p. 260. Council or commissioners may prescribe terms and conditions, 9113, p. 929. Crossing, joint of, repair, full stop at, 9124, p. 9382. grade, abolishing, sharing expenses of, 8892 to 8894, pp. 985, 986. INDEX. 1437 [Sections referred to by number only are in Part 1] Street Railroad—Continued Crossing—continued over other railroads, 9124, p. 932. steam road, shall come to stop, 9125, p. 933. watchmen at, 9123, p. 932. Crossing-frogs required, when, 38775. Definition, n. p. 256. Depot, offices and buildings of, 9100, p. 922. may be carriers of persons and parcels, 9117, p. 930. may lease, buy or connect with other companies, 9120, p. 931. Extension, 9100, 9105, 9106, pp. 922, 925. of tracks, grant for, 3777. Fares cannot be increased on extension, 3777. Firemen, transportation of, free, 9114, p. 929. Forms for. (See Forms.) Franchise; limit, renewal, etc., 3768, 3771. Grade of street on which constructed, 3775. Grade crossing elimination, share of expense of, 8892, et seq., p. 985. Intermediate permit for, 4000-1 to 4000-15. Interurban— competitive bidding for franchise, 3780. franchises to, for terminals, 3778. limitation on grant, 3780. proceedings to condemn property, 3779. use of tracks of street railway, 3778. lease, purchase or sale of another, 91387, p. 939. increase of fare prohibited, 9139, p. 940. of electric light or gas company, 9134 to 9136, pp. 938, 939. of pier, dock, etc., 3699-1. purchase or lease of other roads, 9137, p. 939. Not an additional burden on streets, n. p. 255. Ordinance authorizing, 3768. Other company’s track, authority to use one-eighth, 9103, p. 923. Other railways, use of tracks by, 9130 to 91383, pp. 936, 9388. passenger cars on, 9130, 9132, pp. 928, 929. running, arrangements with, 91380, p. 928. Pavement between rails, 3776. Policemen, transportation of, free, 9114, p. 929. Power brakes required on, 9149-1, p. 947. Provisions governing, whether extension or new route, 9105, 9106, p. 925. Rapid transit (See Rapid Transit Commission) Regulation of speed in municipality, 3632. Release of, from obligations, forbidden, 3771. Remedies in case of illegal grants, n. p. 264. Renewal of grant, 3768, 3771. Repair or reconstruction of, how enforced, 3812-2, 3812-3. assessment of cost of, 3812-3. bonds in anticipation of assessment, 3812-3. validity of provisions, n. p. 330. 1438 INDEX. [Sections referred to by number only are in Part I] Street Railroad—Continued Rights of, as to occupancy of public roads, ete., 9141, p. 941. | Screen to protect motormen required, 12788, p. 950. Seats for conductors and motormen required, 9007-1, p. 946. Street sprinkling— municipality may require, of right of way, 3749, 3750. share of cost of, 3748. Terms and conditions of construction, operation, extension, con- solidation, 3768, 91138, p. 929. Third rail, protection of, 9149-8, et seq., p. 947. Tracks— extension of, 3777. single or double, may be constructed, 9100, p. 922. use of, by interurban company, 3778. Transportation, firemen of, free, 9114, p. 929. policemen of, free, 9114, p. 929. Underground tracks, 9142, p. 941. Street Sprinkling. (Sec Streets, etc.) Streets, Alleys, Public Places, Ete. (See Roads) Abutting owner’s rights, n. p. 208. Additional burden on, what is, n. p. 207. Adverse possession of, 11220, p. 912. Altering, diverting, etc., 3715. Animals running at large in, 5809, 5810, p. 915, 916. impounding animals, 5817, et seq., p. 916. Appropriation of, by railroads, 8763 to 8766, pp. 958, 963. Appropriation of property for, 3677, 3714 to 3783. to extend across railroad tracks, 3677. Change of grade, 3629, 3715, 3812, 3838. Change of name, 3725, 3726. Character of municipality’s title, n. p. 203. Cleaning, etc., 3629. assessments for, authorized, 3812, 3844. ordinance for, 3839, 3842. power of, to contract, 3839. supervision of improvement, repair, etc.— in cities by directors of public service, 4325. in villages, by street commissioner or engineer, 4364. Compensation for use of, n. p. 2038. Control and supervision of, 3629, 3714, Curbing, gutters, ete., for— assessments for authorized, 3812, 3857, 3860, 3864. bonds in anticipation, 3865. certified to county auditor, when, 3865. construction, cleaning, repair, ete., of, 3858, 3862. along municipal property, 3866. failure of owner as to, 3857, 3859, 3863. in villages, on petition, 3868, 3870. notice as to, 3854, 3856, 3862. On one side of street, 3867. INDEX. 14389 [Sections referred to by number only are in Part I] Streets, Alleys, Public Places, etce.—Continued Damage to by vehicles, 7251, p. 901. Dedication, etc., of. (See Dedication), 3723, 4353. Elevated railroad, when permitted in, 9142 to 9149, pp. 941, 946. Hstablishment of. (See “Opening,” etc., below.) Excavations, depth below grade allowable, 3782, 3783. Franchises, conditions of, to traction companies, 9114, p. 929. Gas company, occupancy by, when, 3984, 3985; 9320, p. 1041. General powers of municipal corporation as to, 8629 to 3635. Grade, change of. (See Grade.) Grade crossings, abolishment, 8874, et seq., p. 977. (See “Railroads’’) Heat and power companies, use of, by, 3644. Improvement of. (See “Improvements” ) assessments for authorized, 3812 et seq. bonds for, 3939. contracts for, certificate as to funds not required when, 3809. state aid for, 1193, et seq., p. 880. supervision of, in cities, 4325. in villages, 4364, Inclined movable road companies, use of, by, 3645. Liability of municipality for injuries on, n. p. 214, et seq. Lease of, for steam or street railroad tracks, for use of wharf, 3699-1. Lighting, etc., of— : assessments for, authorized, 3812. contracts for, certificate as to funds not required when, 3809. powers as to, 3618. supervision of, in cities, 4325, in villages, 4364. Materials for, powers as to, 3724. Maximum load on, 7246, et seq., p. 897. Names of, change of, 3629, 3725, 3726. Narrowed by council, when, 8715. Nuisances, etc., in— depositing dead animals, offal, etc., on, 12649 to 12651, pp. 1193,..4194. Obstructing, 13421, p. 914. market house companies must keep streets free from, in front of their buildings, 10155, p. 1232. Occupancy of by railroads, 9142, p. 941. Oiling, ete., 3751 et seq. assessments for, 3758. amount of, limitations, 3753, 3758. bonds jin anticipation of, 3759. collection of, 3758, notice of, 3755. objections to, 3756. contracts for, 3751, 3752. effective when, 3757 1440 INDEX. [Sections referred to by number only are in Part I] Streets, Alleys, Public Places, etc.—Continwed Oiling, etc.—continued. : cost of— assessed on abutting property, 3753. municipality’s portion, 3754, 3760. districts for establishing— by municipal authorities, 3754. ~ on petition of property owners, 3753. “owner” defined, 3761. regarded as cleaning or repairing, 3760. Opening, establishing, ete— appropriation of property for, 3677, 3715. bond for, by interested persons, 3694. by court; petition, notice, order, ete., 3730, 3731. ordinance for, 3715. powers of municipalities as to, 3629, 3714. Platting of. (See Plats; Platting Commission), 4346 to 4356. council of village to provide as to, 4356. joint platting, 4354. platting commissioner in cities, 4346 et seq. power of municipalities as to, 3629. Poles in, when unlawful, 12645, p. 913. Power of municipalities as to, 3629. Power of council over, n. p. 204. Railroad crossings over— abolishing at grade, 8863, 8874, 8875, pp. 972, 977, 978. bonds and tax for city’s share, 8870, 8890, 8891, pp. 976, 984 985. by agreement, 8863, p. 972. cost of maintenance, 8869, 8889, pp. 975, 984. damages from, claim for, 8885, p. 982. disputes as to; duty of court, 8877, et seq., p. 979. expense of; shared how— apportionment between railroad and municipality, 8868, 8883, pp. 975, 981. payment of railroad’s portion, 8886, p. 983. street railway to Share, 8892 to 8894, pp. 985, 986. height of viaducts, ete., 8887, p. 983. land for, acquired how, 8867, 8888, pp. 974, 984. notice of intention as to, 8884, p. 982. ordinance for, 8866, p. 973. plans and specifications for, 8876 to 8880, pp. 978, 980. power of municipalities to make, 8874, 8875, p. 977, 978. resolutions as to, publication, etc., 8864, 8865, p. 973. making of required, 8843 to 8848, pp. 968, 969. to be kept clear of snow, 8847, p. 969. Remedy for obstructions, n. p. 212. Repairing, ete.— assessments for, authorized, 3812. by street railroad, 3776. > INDEX. 1441 [Sections referred to by number only are in Part I] Streets, Alleys, Public Places, ete.—Continued Repairing, etc.—continued. mandamus to compel, of turnpike condemned by munici- pality, 3718 oiling regarded as, 3860. supervision of— in cities, 4325. in villages, 4364. Regulation of use by council, 8632, 3714. Rolling roads, municipality, use of for, 3645. Shade trees upon— assessments for planting, etc., 3812, 3844. powers of municipalities as to, 3630. Shrubbery, municipality to provide for, in, 3630 Sprinkling, sweeping, etc.— appliances for, purchase of, 3747. assessments for, authorized, 3812, 3844. bonds in anticipation of, 3845. commissioners for, 3840, 3841. contracts for, 3747. municipality’s portion of cost, 3846. notice to property owners, 3848. ordinances for, 3746, 3839, 3842. petition for, 3745. powers of municipalities, 3745, et seq., 3839, et seq. street railway— municipality may require of right of way, 3749, 3750. to pay share of cost, 3748. supervision of— commissioner for when, 3840, 3841. in cities, 4325, in villages, 43638. tax levy for, 3748. State aid for improvement of, 1193, et seq., p. 880. Street railways in, along, etc., 3768 to 3777. extension, franchise for, 3777. franchises for, duration of, 3771. establishment of route, 3770. limitations as to, 3771. grade of street, as to, 3775. proceedings to establish, 3769. street sprinkling, share of cost of, 3748. terms and conditions, 3768. Telegraph line along, 9178, 9179, pp. 906, 908. Traction engines or tractors on, when unlawful, 13421-12, p. 914. Transportation over, power of municipalities to regulate, 3632. Turnpike or plank road— adaptation of, to use as, 3721. becomes when, 3716. ‘condemned how, 3719. 1442 INDEX. [Sections referred to by number only are in Part I] Streets, Alleys, Public Places, ete.—Continued Turnpike or plank road—continued. improving, etc., 3717. power to plat, grade, etc., 3629, right of toll on, not impaired except, 3722. Vacation of, 3725 to 3733. by council, 3725 to 3729. application for, notice of, 3728. effect of order of, 3729. by court, 3730 to 3733. Vehicles, municipality to license and regulate use of by, 3632. Viaducts over, 3742, 3743. Water company, occupancy by, when, 9320, p. 1041. Weight of loads on, 7246 to 7251, p. 897, 901. Structures. (See Buildings) To provide against insecure, 3637. To regulate erection of, 3636, et seq. Subdivision. Lots in municipalities, 3580 et seq. Submission. (See Elections, and Submission of Question, therein) Subpoena. (See Evidence; Witness) : Mayor’s court, in, 4549. Merit system, in investigation of, 4489. Police court, in, 4576, Trial of municipal officer for misconduct, in, 4266, 4673. Substitute. Clerk of police court, for, 4597. Police judge, for, 4569, 4570. Prosecuting attorney of police court, substitute for, 4586. Subways. Method of construction, 9148, p. 941. Municipality may construct, 9142, p. 941. appropriation of property for, 3677. Superintendent. Cemeteries, appointment of, in municipal corporations, 4162. Deaf and dumb asylum, superintendent of— department of public service, in, 4327. Hospitals in municipalities, of, 4026, 4051. Markets, duties of in cities and villages, 4366. Parks, of, 4061. Pawn department, in, 4205-5. Public works, fraud by; penalty, 12918, p. 1098. Workhouse, superintendent of, may deliver bodies for dissection, 12689 to 12690, p. 1195. INDEX. : 1443 [Sections referred to by number only are in Part I] Surety. Municipal officers, liability of, 4245, 4668. Officers, etc., not released by failure of principal to take oath, Zs 1004: Surgery. Jurisdiction of offenses, 13423, p. 1201. Surrender. Corporate powers of municipality, surrender of, 3500 et seq. judicial notice of, 3515. petition for, by village, 3513. reduction of city to village, in case of, 3500 et seq. census for, 3503, 3504, 3506. effect of, 3509, 3510. expense of census, 3511. petition for, 3501. procedure if council or auditor fail to act, 3506. record of resolution for, 3508. resolution of. council for census, 3502. resolution of surrender, 3505. transcript of census, 3507. taxes unpaid at time of surrender, as to, 3510. vested rights and liabilities not affected, 3509, 3514. village, surrender by, 3513 to 3515. Surveyor. Duty of, as to, making plat, 3580 to 3583. restoring lost plat, 3612 to 3614. Swill. (See Garbage) May provide for removal of, 4463. Swindler. To provide for punishment of, 3664. Switching. . Railroads, by; council of cities may prohibit, 8851, p. 970. 58 Talesman, (See Jury) In mayor’s court, 4553. Target. Shooting at, within municipal corporation; penalty, 12635, p. 912. Tavern. (See Hotel) License for, 3672. Regulation of, in cities and villages, 3662. 1444 ; INDEX. [Sections referred to by number only are in Part I] Taxpayer. Actions by, in municipal corporations, when solicitor refuses or neglects, 4314. Costs, security required when, 4314. Taxation. Abolishing grade crossings, for, 8891, p. 985. Abutting property; taxes upon city property, abutting street, etc., 3837. Additional, 3786. ; Annual budget, 3791, 3793; 5649-3a, p. 1012. Appropriation and expenditure of, 3797, et seq.; 5649-3d, p. 1017. Approval by tax commissioners, 4526. Art gallery, to aid, 4020. Assessments, special, collection of, 3892, 3893. levy to pay deficiency, 3914-1. Assessors (See Assessors), 8349 to 3364, p. 996-1003. Auditor of city, to turn over to sinking fund trustees when, 4517. Auditor of county, tax certified to, by council, 3794. Auditor to furnish statements as to funds, 3788. Board of tax commissioners in cities, 4523 et seq. Bonds, issuance of, when taxes enjoined, 5659-1, p. 1022. Bonds, tax to pay for, 5649-1, p. 1009. assessment, deficiency in, 3914-1. bond ordinance must provide for, 5649-1b, p. 1010. Budget, annual— - adjustment of amounts set forth, 5649-3c, p. 1016. appropriation not to exceed, 5649-3d, p. 1017. auditor to submit budget to commissioners, 5649-3c, p. 1016. blanks for, to be furnished by county auditor, 5649-3a, p. 1012. budget commissioners, 5649-3b, p. 1015. certificate of, 5649-3c, p. 1016. contents of, 5649-3a, p. 1012. council to furnish county auditor, 5649-8a, p. 1012. council to revise, 3798. data for, furnished by officers, 3790. examination of budget, 5649-3c, p. 1016. joint sessions, when district in two counties, 5649-7, p. 1022. mayor to submit to council, 3791. when made up, 5649-3a, p. 1012. Cemetery bonds, for, 4182, 4188. Certifying to auditor, 3794. Cigarettes, on (Sec Cigarettes) 5900, 5901, p. 1026. Collection of, 3795, 4298. accounts thereof, 3795. Council levies, 3784. Debt, restriction of power of, to create, 3806 Debts not to exceed taxes and revenues, 3913. INDEX. 1445 [Sections referred to by number only are in Part I] Taxation—Continued Election on additional levy, 5649-5, et seq., p. 1018. on exempting sinking fund levies, 5649-6a, p. 1020. Emergencies for, 5649-4, p. 1018. Estimates for, 3787, et seq. Exemptions from, 5349 to 5359, pp. 1004-1006. Funds levied, separate account of each, 3795. Grade crossing elimination, for, 8891 Hospital, to aid free private, 4021. Improvements paid for by municipality, for, 3820, 3837, 3838. Inheritances, on (See Inheritance Tax) Intersections for, 3821. Judgments, tax levy to pay, 5649-1c, p. 1011. Levy of greater tax to be submitted to vote, 8786; 5649-4, 5649-5, p. 1018. Limitations on, 3785; 5649-2, p. 1012. constitutional provisions, p. 1248. Loans in anticipation of, 3913. Maximum, in cities and villages, 3785. 3786. Motor vehicles, on (See Motor Vehicles) Municipal universities, construction of, 7910, p. 1050. Order of procedure for municipal tax levies and appropriations, p. 290. Ordinance for levy, vote on, 4224. Park purposes, for disposition, 4062. Percentage of tax certified to auditor, 3794. Power to borrow money and issue bonds. (See Bonds), 3912, et seq. Power to levy and collect, 3784. Restrictions as to appropriations, etc., 3806. Restrictions as to contracts, etc., 3806. Revenue, loans in anticipation, 3918. Road tax— distribution of, 5649, p. 897. to be paid in money, 5649, p. 897. Serial bonds, for payment of, 5649-1, p. 1009. Sinking fund, for, 4506; 5649-1, p. 1009. tax for, when exempt from limitations, 5649-6a to 5649-6d, pp. 1020-1022. rate for certified, 45138. Sinking fund trustees receive tax for bonds, 4517. Sprinkling of streets, for, 3748. Streets in cities, 3719. Surplus of special, transferred, 5654, p. 1008. Transfer of public funds, 2296 to 2302, pp. 1007-1008. of surplus special tax on loan, p. 1008. Treasurer to receive, 4298. keeps separate account for each fund, 3795. report of treasurer, 4299. receives from county treasurer, 4301. 1446 INDEX. [Sections referred to by number only are in Part I] Taxation—Continued Union cemeteries, for, 4188. Universities, construction of municipal, 7910, p. 1050. Vault or hearse in village, for, 4180. Vote, levy of greater tax submitted to, 3786; 5649-5, 5649-5a, pp. 1018, 1019. Waterworks, for, 3977, 3978. Workhouse, for, 4146. Telegraph Company. Appropriation of property by, 9178, p. 906. public grounds, streets, etc., 9178, 9179, pp. 906, 908. municipal consent, 9178, 9179, pp. 906, 908. municipality not to demand or receive compensation, 9178, 9179, pp. 906, 908. proceedings in probate court to appropriate, 9178, 9179, pp. 906, 908. Competing company not permitted, when, 614-52, p. 1088. Streets, public grounds, appropriation, 9178, p. 906. municipality not to receive compensation, 9179, p. 908. Underground wires, authorized, 9197, p. 908. consent of municipality for, 9198, p. 909. required, when, 12645, p. 913. Validity of ordinances, 9197, p. 908. Telephone Company. Appropriation of property by, 9178, p. 906. public grounds, streets, etc., 9178, 9179, pp. 906, 908. municipal consent, 9178, 9179, pp. 906, 908. municipality not to demand or receive compensation, 9178, 9179, p. 906, 908. proceedings in probate court to appropriate, 9178, 9179, pp. 906, 908. Streets, public grounds, appropriation, 9178, p. 906. municipality not to receive compensation, 9179, p. 908. Underground wires, when required, 12645, p. 913. Validity of ordinances, 9197, p. 908. Temporary Stores. License opening of, 3672, 3676, Tenement. Fire escapes from, 4658, 4659. Inspection of, 4661. Mayor to give notice to owners, 4660. Ten Pin. (See Nine Pins) May regulate, 3659. INDEX. 1447 [Sections referred to by number only are in Part I] ferm of Office. (See various Officers by name) Not affected by appointment to fill vacancy, 10, p. 1078. Till successor qualified, unless, 8, p. 1076. Terms of Court. (See Courts) Police court, of, 4578. Theater. (See Buildings) Certificate of safety, effect of, 4655. penalty for use of theater without, 4652. when issued, 4656. Examination as to safety of, 4648 to 4651, 4654, 4657, 4662. Penalties for failure to have proper exits, etc., 4652. Prohibited or regulated in cities and villages, may be, 3657. Prohibition of use after inspection, 4663. Regulations as to, powers of council, 4664. Tickets to, license to traffic in, etc., 3657. Theatrical Performance. To regulate or prohibit, 3657. Thief, Regulations as to punishment of, 3664 to 3667. Ticket Brokers. License of certain, 3657. Tire of Vehicles. Width of, regulated— by council, 3635. by weight of load, 7248-1, p. 899. Title. Cemeteries, vested in whom, 4160, 4174, 4178, 4203. Ordinance, title of, must express its subject, 4226. Toilet Stations. May establish, 3648. Toledo, Municipal court in, n. p. 826. Toll. Collection of, suspended, when, 9244, p. 893. Right of turnpike, etc., companies, in municipal corporation not impaired, except, etc., 3722. 1448 —C INDEX. [Sections referred to by number only are in Part I] Township. Attachment of territory detached from municipality, 3577, 3578. Boundaries of, when identical with municipality, 3512. petition for change of, 3249, p. 1225. Cemeteries in, municipal corporation, township may unite with, in cemetery. (See Cemeteries), 4183 to 4201. Funds of, division, etc., of, when village created, 3544. Lines of, how changed, to make coincident with municipal cor- porations, 3249, p. 1225. change made, how, and fractions disposed of, how, 3250, 3251, p. 1226. if in two or more counties, 3252, p. 1226. Merged in municipal corporation, 3512. New, erection of, from territory of municipality, 3577. Traffic. (See Streets) Maximum load, 7246-7248, pp. 897, 898. Regulations, 7246, et seq., p. 897. Transcript. (See Record) Mayor’s court, in, 4549, 4551. Ordinances, effect of transcript of, as evidence, 4235. Proceedings for annexation and detachment of territory, of, 3549, 3550, 3572. Proceedings for incorporation of village, of, 3523, 3534. Reduction of cities to villages, of proceedings, 3507, 3508. Transfer, Funds, by municipal corporation, 3799. Transient Trader. License of, 3673, 3676. Transportation. Electricity, companies for, 3995 to 3998. Oil through lines of pipe, of, 3995 to 3998. Rates, of, in municipalities, 3635. Streets, regulation of transportation through, by council, 3632. Treasurer. Accounts of, 3795, 4297, 4299: Assessments, when collected by, 8893, 3905. when paid over to, by county treasurer; 8892. Bond of, 4294, Deposits and depositaries, 4294 to 4296. Duties and powers of, 4298. as to— delivery of books, moneys, etce., to successor, 4302. deposit of moneys, 4294. quarterly accounts, 4299. receipts of moneys from county treasurer, 4301. receipts of proceeds from gale of property recovered by police, 4401. INDEX. 1449 [Sections referred to by number only are in Part I] Treas urer—Continued Duties and powers of—continued receipts and disbursement of— municipal funds, 4300. school funds, 4300; 4763, p. 1200. when township and municipal boundaries became identical, 3512. Election of, 4293. Employees, of, appointment, etc., 4247. Hospital funds disbursed by, 4042. Interest on money in hands of, 4294, 4295. Liability of, for loss of moneys, 4294. release from, in certain cases? 2303 to 2311, pp. 1115-1118. appeal from finding, 2305, p. 1116. finding necessary, 2304, p. 1116. trial on appeal, 2306, p. 1116. voting on finding, 2307 to 2311, p. 1116-1118. Money collected, deposited how, 3795, 4294 to 4296. Park funds deposited with, 4062, 4072. Payments to, by city solicitor, 4310. by county treasurer, 3795, 3892, 4301. by mayor, 4270. Qualification of, 4293. Sale of municipal property, proceeds of, deposited with, 3704, 3706. Sinking fund securities deposited with, 4518, Taxes collected, paid over to, 3795. account of funds for which levied, 3795. Term of, 4293. Water rents deposited with, 3960 Treasurer of County. (See Auditor of County) Assessments, municipal, collected by, when and how, 3892, 3965. Corporation, municipal, when to pay over to treasurer of, 4301. Fines and costs collected by mayor to be paid to, when, 4270. Municipal corporation, when to pay over to treasurer of, 4301. funds of, when to remain in county treasury, 2690, p. 1119. Payments to local treasurer, 2689, 2692, p. 1110-1120. School funds, when treasurer of, 4763, p. 1120. Trees. Planting, etc., in cities and villages, 3630, 3812. Trenches. Burial of offensive matter in, 12650, 12651, p. 1194. Trial. (See Actions; Jury) Appropriation of property, view, 3684. Councilman, of, 4670, et seq. Damages from public improvements, in assessment of, 3827, 3828. Mayor, of, for ras etc. (See Mayor), 4267 to 4269. Mayor’s court, in. (See Police Court), 4527, et seq. Municipal Dice. trial of, for malfeasance, 4263 to 4267, 4670 to 4675. Police court, in. (See Police Court), 4567, et seq. 1450 INDEX. [Sections referred to by number only are in Part I] Trustees. Children’s homes, trustees of— county, 4083 to 4088. Firemen’s indemnity fund, 4647-2. Firemen’s pension fund, 4600 to 4615. Hospital funds, of, 4036 to 4052. Library, of, 4004 to 4018. Library sinking fund, of, 4014 to 4018. Park fund, of, 4066 to 4082. Police relief fund, of, 4616 to 4631. Public affairs in villages, of, 4357, et seq. Sanitary police pension fund, 4632 to 4647. Sinking fund, 4507, et seq. ~ Union cemeteries, of, 4193-1. Turnpike and Plank-road Company. (See Avenue Company; Public Ways) Abandonment of road in municipality, 9243, 9244, p. 893. proceedings to declare, 9243, 9244, p. 893. Action for damages for appropriation by municipality, 9255, p. 894. Appropriation of road of, by municipality, 9254, p. 894. proceedings for; company has action, 9255, p. 894. Municipal limits extending beyond tollgate, 9254, p. 894. removal of tollgate, 9254, p. 894. road within, becomes public street, 9254, p. 894. action for damages by company, 9255, p. 894. appropriation of; proceedings, 9255, p. 894, : road or bridge within, company may sell, 9256, p. 895. sales heretofore made, validated, 9256, p. 895. Repair of road within municipality, 9243, 9244, p. 893. cost of proceedings on complaint, 9244, p. 893. municipality may repair, when, 9243, p. 893. notice of complaint, 9244, p. 893. no toll on portion declared abandoned, 9244, p. 893. penalty for demanding, 9244, p. 893. proceedings; complaint; declared abandoned, 9243, p. 893. proceedings to enforce repair, 9244, p. 893. Road of, terminating in municipal corporations, 8716 to 3724. Road or bridge of, within municipal limits, 9254, 9256, pp. 894, 895. appropriation by condemnation, 9255, p. 894. company may sell to municipality, 9256, p. 895. sales heretofore made, validated, 9256, p. 895. Sale of road to municipality, 9256, p. 895. INDEX. 1451 [Sections referred to by number only are in Part I] U Underground Railroads. Appropriation of property, 9145, p. 945. Character of structure, 9143, p. 941. Damages from construction, 9146, p. 945. Director of public service supervises construction, 9148, p. 941. Franchise for, by municipality, 9142, p. 941. acceptance of, 9148, p. 945. submission of, to electors, 9149, p. 946. term of, 9144, p. 944. lease of space in subway, 9143-3, p. 944. Not to interfere with use of streets, 9143, p. 941. Purchase of, by city, 9147, p. 945. Sewer pipes, etc., reconstructed, 9143-1, p. 942. Validity of grants already made, 9143-2, p. 944. Undertaker. License of, 3675, Registration of interments, 4419. Union Cemeteries. (See Cemeteries) Union Depot Companies. Grant for tracks, etc., in streets, 9163, p. 991. University. Municipal— board of directors of, 4001, et seq. appointment, term, etc., of, 4002, 4251. compensation, 4003. education trusts, board may accept, 7915, p. 1051. exempt from taxation, 7915-1, p. 1052. funds, property, ete., of— control and management, 4001. number of, 4001. organization, 4002. powers and duties, 40038. style of, 4002. vacancy, 4252, board of education to control certain trusts, 7921, p. 1055. tax levy for, 7922, p. 1055. bonds— for, issue, 7910 to 7914, pp. 1050-1051. fund, disposition of, 7913, p. 1051. control and management of, 7902, et seq., Dp. 1047, definition of, 7905, p. 1048. degrees, confering, 7904, p. 1048. discipline, 7902, p. 1047. 1452 INDEX. [Sections referred to by number only are in Part I] University—Continued Municipal—continued. funds, property, etc., of— applied how, 7916, p. 1052. board may take, etc., 7915, p. 1051. control and management of, 7902, p. 1047. disbursements from; limitations on, 7908, 7918, pp. 1049- 1053. investment, ete., of, 7919, p. 1054. report as to, 7918, p. 1053. trusteeship of, vests in municipality, 7917, p. 1053. legal counsel for, 7908, p. 1048. professors, etc., in— appointment, etc., of, 7902, p. 1047. compensation, 7902, p. 1047. pupils in— admission of, rules, etc., as to, 7902, p. 1047. discipline of, 7902, p. 1047. tuition of, 7902, 7920, pp. 1047, 1054. site for, 7906, 7907, p. 1049. tax for, 7908, 7909, pp. 1049, 1050. Urinals. Appropriation of property for, in cities and villages, 3677. Municipal regulation, 3647. Regulation by board of health, 4420, 4421. Utilities. (See Public Utilities) V Vacating Plats. (See Plat) Vacation. (See Streets; Alleys; Public Places, etc.) Alley, by council, 3725 to 3729. by court, 3730 to 3733. Plat, by common pleas, 3593 to 3600. Street, council, by, 3725 to 3729. court, by, 3730 to 3738, Vaccination. Gratuitous, by board of health, 4449. Vagrant. Dissolute person, punishment, 3664 to 3668. Imprisonment of, 3667. Labor of, 3667. Punished, how, 3664, 3665. INDEX. 1453 [Sections referred to by number only are in Part I] Variety Show. To regulate, license, etc., 3657. Vault. (See Burldings) Village may levy tax to build, 4180. council borrow money in anticipation, 4182. election to give authority for, 4180. form of ballot, 4181. voting at, 4181. Vaults and Catch Basins. Contents, where to be deposited, 12650, p. 1194. where deposit forbidden, penalty, 12649, p. 1193. Vault-Cleaners. License of, 3637, Vegetables. Inspection of, 3652. Vehicle. Commercial cars, regulations, 7249, 7249-1, pp. 900, 901. Damage to streets by, 7251, p. 901. Driving of, to prevent and punish fast, 3632. License may be required of owner, 3675. Regulation of, in cities and villages, 3632. Tire of, regulated, 3635; 7248, p. 898. Weight of loads, 7246, et seqg., p. 897. Ventilation. (See Buildings) Boards of health, powers as to, 4421. Council to order owners to change to insure good, 3639. Verdict. (See Jury) Appropriation of property, in, 3689. Public improvements, verdict of jury in proceedings to assess damages for, 3828. Vessel. Quarantine on; board of health may establish a quarantine, 4425. effect of, 4445. Vestibules. (Sce Street Railroad) On street cars, 12788, p. 926. Veto. Cities, in, 4234. None, in villages, 4234. Power of, by mayor, 4234. Viaducts. Appropriation of property for, 3677. Bonds for, 3742, 3939. Contracts for improvement, 3748. 1454 * INDEX. [Sections referred to by number only are in Part I] Viaducts—Continued Control of by council, 3714. Height of, above railroads tracks, 8908, et seq., p. 990. Power of city or village as to, 3629, 3742, 3744. Supervision, of improvement, in cities, 4325. in villages, 4364. Villages. (See various titles) Boundaries of. (See “Boundaries’’) Bonds of. (See “Bonds”’’) Cemeteries in, 4174 to 4182. City reduced to, 3500, et seq. ‘Classification, 3497, 3498. Clerk of, 4279 to 4292, Council of, 4215 to 4245-4. Creation and incorporation of, 3516 to 3540, 8545, 3546. Executive power in, 4248, Fire department in, 4389 to 4401. General provisions, 4665 to 4678. Marshal in, 4384 to 4387, Mayor, 4255 to 4271, Mayor’s court in, 4535 to 4566. Municipalities having less than 5,000 population are, 3497 Name, change of, 3541. Officers’ salaries and bonds fixed how,. 4216, 4219. Officers of city reduced to, 3499, Platting of streets, 4356. Police court in, 4546, 4547, 4567. Police department in, 4384 to 4388. Public buildings in, 4648 to 4664, Public service in, 4356 to 4366. Reduction of cities to, 3500 to 3511. Sealer of weights, etc., 4318 to 4322. Sinking fund, trustees of, in, 4506 to 4522, Solicitor of, 4220. Streets, care of, etc., 4856, 4364. Street commissioner, 4368 to 4365. Surrender of corporate powers, 3518, 3514. Treasurer, 4293 to 4302. . Trustees of public affairs in, 4857 to 4362. Visitation. Educational and corrective institutions, of, 4665. Rights of visitation, 4665. Volunteer Firemen’s Association, Property of, exempt from taxation, 5355. Vouchers. Auditors supervision of, in municipalities, 4285. False vouchers; penalty, 13105, p. 1103. INDEX. 1455 [Sections referred to by number only are in Part I] W Wagon. Tire of, prescribed by, 3635. Ward Assessor. (See Assessor) Wards. Annexed territory, wards in, 4212. Boundaries of, 4212. Bounded by streets, etc., 4212. Council to divide city into, when, 4212. Director of public service to establish when, 4212. When councilmen elected from, 4206. federal plan, under, 3515-3, 3515-30, 3515-31. Vares. To license, persons who sell on streets, 3673, 3676. Warrant. Officers, certain, shall arest without, when, 13492, p. 1125. Watchman. Witness fees in criminal cases, not entitled to, 3024, p. 1124, Watch-stuffer. Power of council to provide for punishment of, 3664. Water. (See Water Supply; Waterworks) Fires, water used for extinguishing, not to be charged for, 3963. Free service, when to be furnished, 3963. Municipal corporation, power over water, gas and electricity, 3982 to 4000. Municipality with waterworks may contract to supply other mu- nicipality with, 3978. : Pipes, municipality to construct for suply of, 3619. Power of cities and villages to supply, 3619. certificate as to funds, 3806. Price of, regulating, 3982. Rents, municipality to apply to waterworks purposes, 3619, who to collect, 3958. Supply of, municipality to provide for, 3619. municipality may contract for, 3981. Water-closet. (See Buildings) Board of health may regulate the construction, ete., of, 4420. Power to appropriate property for public water-closets in cities and villages, 3677. Power to establish and regulate, 3647. 1456 INDEX. [Sections referred to by number only are in Part T] Water Company. Contract with, municipal corporation may, 3981; 9324, p. 1048. Certificate as to funds, when not required, 3809. Incorporated in Ohio, 614-73, p. 1039. rates and valuation, 499-8, p. 1030. Leasing of, by municipality, 3809. Meters, charges for, etc., 3982, Powers of, 9320, p. 1041. Price of water, regulating, 3982, Watercourse. (See Drainage; Stream) Assessments for, municipalities, 3812. Bonds for improving any, 3939. Contract with owners of, for power, 4333. Enlargement of, by municipality, 3623. Municipal corporations, powers of, to remove obstructions from watercourses, 3653. to appropriate property for, 3677. to construct, improve, etc., 3623. to issue bonds for, 3939. Pollution of, ag affecting public water supply. (See State Board of Health), 1249 to 1261, 12784, pp. 1164-1176, 1196. Water Purification Works. Conduct of, when assumed by state board of health, 1256, p. 1170. Improper construction of, 1253, p. 1168. operation of, 1255, p. 1169. Water Rents. Provisions relating to, 3619, 3958. Water Supply. Analyses of water, 1252-2, p. 1166. Appeal to referees, 1257, p. 1171. Changes may be ordered, 1252-5, p. 1168; 1254, p. 1169. Charges may be increased, 1258-1, p. 1172. Complaint of- pollution, 1249, p. 1164; 1252, p. 1165. Control by state department, 1252-1, p. 1166. Findings, notice of, 1250, p. 1164; 1258, p. 1168. Funds provided, how, 1259, p. 1174. Hearing, notice of, 1250, p. 1164. Investigation by state, 1249, p. 1164; 1252, p. 1165. Levies, limit of, 1259-1, p. 1175. Manager may be required, 1256, p. 1170. Notice of danger, 1252-4, DATLTOT Order, failure to obey, 1260, p. 1175; 126. 2p. one: Order for improvement, 1251, p. 1165; 1255, p. 1169. Penalty for violation, 1252-6, p. 1168. Private or emergency supply, 1252-3; p. 1167. Putrid substance in, penalty, 12784, p. 1196, Referees, appeal C0, "1258" py A176 —" INDEX. 1457 [Sections referred to by number only are in Part I] Water Supply—Continued Supreme Court— may modify or vacate order, 1258-2, p. 1172. old orders in force, 1258-7, p. 1174. petition and proceeding, 1258-3, p. 1173. proceding, when commenced, 1258-5, p. 1173. suspension by, 1258-6, p. 1173. transcript, 1258-4, p. 1173. Waterworks. Appropriation of property for, 3677, 3679. Assessment for interest on loan for, 3978. Assessment and collection of water rent, 3958. disposition of surplus, 3959. ; Attachments to pipes, etc., of, protection of, 3964. By-laws and regulations in regard to, 3957, Bond of contractor for, 3965. Bonds for, 3939. Cities or villages, power of, to construct, 3619. Connections with water pipes may be required, 3812-1. Contiguous cities or villages, in, 3971 to 3973. _ costs thereof, how paid, 3974. Contractors to give bond, 3965. Contracts for, rules as to, 3961, 4330, 43381. Control of, in cities, 4326. in villages, 4357. Council, general powers as to, 3955. Director of public service, duties as to, 3956. Emergency, power of council to authorize work for, in, 3965. Exempt from taxation, 5357, p. 1006. Expenses of, paid by water rents, 3958. Extension at individual expense, 3967, Free water supply, for what purposes, 3963. Highways, laying of pipes in, 3980. Investigation of, by council, 3962. Joint construction and operation, 3973-1. Jurisdiction as to, limits, 3972. Lands for, 3955. Lease of, by municipality, from company, certificate of funds not required when, 3809. Machinery for, water power to operate, 4333. Municipal corporation, contract with water company, 3981. may supply water to other municipal corporations, 3973. Municipal corporations, on annexation of, waterworks to be joint property, 3975. Municipal corporations, termination of contract to supply, on annexation of, 3976. No charge for water, when, 3963. Pipes, extension of, beyond limits of municipal corporation, 3966, 3967. extension, to contiguous corporation, 3971 to 3976. 1458 INDEX. [Sections referred to by number only are in Part I] Waterworks—Continued Powers of council as to, 3955, 3962, 3965. Powers and duties of director of public service as to, 3955, et seq. by-laws and their force, 3957. contracts by, 3961, 3965. duties of, and salary, 3956, investigation of, 3962. Protection to attachments, 3964. Regulation of price in municipalities, 3982. Rents and assessments, 3958. deposits of, 3960. director to assess and collect rent, 3958 to 3960. Roads, when may be changed, 3783-1. State board of health to approve water supply of municipal cor- porations, 1240, p. 1162. Streams, when may be changed, 3783-1. Tax for interest on loan for, 3977 to 3979. Tax for, in villages, 4362. Villages, in, 4361, 4362. Watering-troughs. May establish, 3648. Weeds. On private property, destruction of, 4245-1 to 4245-4. assessment of cost, 4245-4. 7 notice to owner, 4245-1, 4245-2. procedure on failure of owner, 4245-3. Roads, Streets, etc., in, n. p. 661. Weights and Measures. Cities and villages, power of, to regulate, 3651. Comparison of, of city or village, with those in possession of county sealer, 4321. Comparison of, by sealer of city or village, 4322. Council a eon or village may make provisions for detecting false, False, council of cities or villages may make provisions for de- tecting, 3651. Jurisdiction of offenses relating to, 13423, p. 1200. Sealer of weights and measures, 4318, et seq. appointment, 4318. oath and bond, 4320. qualifications, 4319. Welfare Conferences. Expenses of attending, 1357, p. 1058, Provisions for, 1356, p. 1057. INDEX. 1459 [Sections referred to by number only are in Part I] Wharfage. Municipality to fix rates of, 3640. Wharves and Docks. Appropriation of property by municipal corporations for, 3677. Assessments for cleaning and improving by municipality, 3812. Bonds for, 3939. Cleaning, improving, etc., of, in municipal. corporations, 3629. Control of, in cities, 4325. in villages, 4364. Establishment of, by council, 3629. Elevated railroads over, 3699-1. Lease of for street railroad tracks, 3699-1. Power of council to regulate, 3640. Repair, municipality to, 3629. Whistles. May regulate, etc., 3650. Will. Municipalities have power to take property under, 3615, 3631. Witness. (See Evidence; Subpoena) Fees of— mayor’s court, in, 4555. police court, in, 4580. Lost or destroyed records; surveyor may examine witnesses, when, 3612. Municipal officers, etc., impeachment of, etc., 4264, 4266, 4267, 4673. Police court, in, 4579. Recognizance of, by judge of police court, 4582, Wood. To regulate weighing and measuring, 3651. Wooden Pavement. Council may require between rails, 3776. Workhouse. Age, necessary, for commitment to, 4128. Appropriation of property for, by municipality, 3677. Assistant superintendent of to have police powers, 4137. Bonds for, 3939. Commitment to, 4128, 4151. commitment shall be prompt, 4132. fees of officers, when sentence by court, 4132. when by magistrate, 4132. who may be committed, 4128, 4151. Confinement in workhouse for fine and cost, 3666, 4559. Commissioners may unite with city in erecting, 4139. 1460 INDEX. [Sections referred to by number only are in Part I] Workhouse—Continued Commitment from municipality containing no, 4128. cost of maintaining, 4128. Contagious diseases, admission of person with, 4441. Control, etc., of in cities, 4326. in villages, 4356. Counties may unite in establishing, 4142. Counties having no workhouse, may contract for use of work- house with city council, 12384, 12384-1, 12385, pp. 1068, 1069. Courts may sentence to, for jail offense, 12386 to 12389, pp. 1069, 1071. Cumulative sentence, 4130. Discharge of person committed to, 4133. record of, 4133. who may discharge, 4133. Escape from, 12840, p. 1071. Establish, power to, 2624, 4139, 4142. Fees of officers, for commitment, 4132. Guard of, to have police powers, 4137. Habitual offender, 4131. complaint to contain what, 4131. pardon in such a case, 4131. what constitutes, 4131. Imprisonment in, 3665, 3666, Infant received, when, 4138. Insolvent debtor, law cannot apply to, 4129. Joint city and county, 14563, p. 1071. board of directors, powers of, 14568, p. 1073. improvement of buildings, 14568, p. 1073. inmates from other counties, 14563, p. 1071. agreement upon terms, 14564, p. 1072. sentence and order of court, 14565, p. 1072. withdrawal, proceedings for, 4139-1. Joint county, 4142. board of directors, 4143. compensation, none, 4143. cost of, determined by, 4144. duties of, 41438, 4144. location of, determined by, 4144. bond issue for, 4146. money, how distributed, 4147. buildings, directors may enlarge, 4150. certificates of estimates to commissioners, 4145. levy for, 4146. maintenance, how provided, 4148. levy of taxes, 4149, other counties may be admitted, 4150. persons sentenced from, received in, when, 4141. who may be sentenced to, 4151, proceedings on such sentence, 4152. INDEX. [Sections referred to by number only are in Part I] Workhouse—Continued 1461 Labor of persons sentenced to, 4129; 7504 to 7514, pp. 891, 892. Minors received by, when, 4138. Officers of, have police powers, 4137. Other counties, prisoners from, 4141. Parole of persons imprisoned in, 4134. return of paroled to custody, 4136. . violation of parole, 4135. who to establish rules and specify conditions of, 4134. Pardon of former offense of habitual offender, effect of, 4131. Religious services, 4153. Sentence to be cumulative for second offense, 4130. limitation on punishment, 4130. Superintendent of, to have police powers, 4137. Who may be sentenced to workhouse, 4128, 4151. Workmen’s Compensation. Annual salary list, 1465-65, p. 1089. Contribution by municipalities, 1465-62, p. 1088. Definition of terms, 1465-61, p. 1087. Employe defined, 1465-61, p. 1087. Employers subject to law, 1465-60, p. 1086. Fund available, when, 1465-68, p. 1090. Operative defined, 1465-61, p. 1087. Per centum to be contributed, 1465-63, p. 1088. Statement of salary list, 1465-65, p. 1089. Workman defined, 1465-61, p. 1087. Workshop. (See Inspection and Inspectors) Fire escapes, construction of, 4658. Jurisdiction of offenses relating to, 13423, p. 1200. Writ. (See Execution; Summons; Subpoena) Issued by mayor, 4549, p. 675. v8 Yards. Board of health may regulate, 4421. Depositing poison in; penalty, 12663, p. 1194. Year, Fiscal, end of, in municipal corporations, 3796. Yeas and Nays. Board of control in cities, vote by, 4402. Council, vote of, to be by yeas and nays, when, 4224. Library trustees, vote by, 4005. Ordinances, passage of, vote of, to be taken by, when, 4224. 1462. INDEX. [Sections referred to by number only are in Part I] Yeas and Nays—Continued SRE Ordinances, suspension of rules as to, must be yea ta: nw} foie 4224. Park trustees, vote by, 4055. Sinking fund trustees, vote of, by, 4510. Trustees of hospital funds, vote by, 4041. - Trustees of park funds, vote by, 4071. Youngstown. Municipal court in, n. p. - 926, Zanesville, Municipal court in, n. p. 826. Zoning. (See Planning Commission) | z é % hes ECT 8 07