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State ex rel. Nieman, Treasurer, v. Fangboner, Auditor.

Relator further says that by the provisions of section 2792, Revised Statutes, as amended January 30, 1891, 88 O. L., 13, the board of equalization of Sandusky county assessed on said oil wells in said township the sum of $2,318.67, as the developments of said oil wells were made over and above the decennial appraisements of lands upon which said oil wells are situtated. That the owners, operators and managers of said oil wells in said township have long since paid into the treasury of said Sandusky county, Ohio, the said sum of $2,318.67, as provided for so as aforesaid, in said amended section 2792, and that the said $2,318.67 are now in the treasury of said Sandusky county, Ohio.

Relator further says that by the provisions of an act of the general assembly of the state of Ohio, passed April 27, 1896, 92 0. L., 748, which is as follows:

"HOUSE BILL NO. 673. "An act to provide a road fund in townships where oil wells are located or

may hereafter be located.

(SANDUSKY COUNTY.) “Section 1. Be it enacted by the general assembly of the state of Ohio, that in all counties which by the federal census of 1890 had a population of 30,617 nor more than 30,900, any money arising from the tax on oil wells drilled or hereafter to be drilled, shall be collected by the treasurer of the county as other taxes are, and be returned to the township treasury where such oil wells are located, in any sum not exceeding $2,500 per annum, to be used as a road fund in any such township.

“Section 2. Said funds shall be under the control of the township trustees, and shall be by them expended in maintaining and building roads, as to them seem advisable.

"Section 3. All acts and parts of acts in conflict with the provisions of this act, as to such conflict, hereby repealed, and this act shall take effect and be in force from and after its passage.”

It is provided “that in all counties which by the federal census of 1890 have a population of 30,617 nor more than 30,900, any money arising from the tax on oil wells drilled or hereafter to be drilled shall be collected by the treasurer of the county as other taxes are, and be returned to the township treasurer where said oil wells are located in any sum not exceeding twenty-five hundred dollars ($2,500) per annum, to be used as a road fund in any such township.”

He then states the population of Sandusky county; and that there is now, under and by vritue of said last mentioned act of the general assembly of the state of Ohio, passed April 27, 1896, to the credit of the treasurer of said Woodville township, Sandusky county, Ohio, the sum of two thousand three hundred and eighteen anú sixty-seven hundredths dollars.

That by reason of the boreing and drilling of said wells in said towfiships the roads have been cut up and destroyed by hauling thereon engines, boilers and timbers, and it is necessary, in order to place said highways in a secure condition that said money aforesaid collected be returned to said treasurer to enable the township trustees to spend the same on the public highways of said townships as provided by section ?, etc.

Sandusky Circuit Court.

Relator says he has demanded the return of this money and it has been refused and he therefore prays that a writ of mandamus issue commanding said defendant to issue his warrant upon the county treasurer of said county for the payment of said above named sum,

There is a little trouble in regard to this allegation of the petition as to the amount of taxes, for the reason that it doesn't follow the statute. It says under section 2792, Revised Statutes, as amended January 30, 1891, 88 O. L., 13, the board of county commissioners acting as a board of equalization assessed on said oil wells in said township the sum of $2,318.67. If this is literally true the money has not been properly raised. not been raised in pursuance of the statute. We have assumed and shall assume in deciding this case that this money is the amount of taxes that have been levied upon certain values that have been made by the board of equalization of the county upon oil well property. The act is found in section 2792, Revised Statutes, as amended in 88 O. L., 13, 2. “Each separate parcel of real property shall be valued at its value in money, excluding the value of the crops growing thereon; but the price for which such real property would sell at auction, or at forced sale, shall not be taken as the criterion of the true value, and where the fee of the soil of any tract, parcel or of land, is in any person or persons natural or artificial, and the right to any minerals therein in another or others, the same shall be valued and listed agreeably to such ownership in separate entries, specifying the interests listed, and shall be taxed to the parties owning different interests respectively;" that is to say, the land is returned at its value and the oil wells are to be listed at their value, "provided the assessor shall deduct from the value of any such tracts of land lying outside of municipal corporations the amount of land occupied and used by a canal or used as a public highway, at the time of such assessment, and if the assessor fails to do so, the county auditor is hereby authorized to make deductions as herein provided; and provided further, that the annual board of equalization may reduce the mineral value assessed against lands containing or producing petroleum (oil), natural gas, coal, ore, limestone, fire-clay, or other minerals in proportion as the product of such minerals has diminished.” Now comes the clause upon which it says the board has acted in this matter: "If such mineral product was considered as a part of the value of said real estate in its previous appraisement for taxation, and annual assessors or boards of equalization may assess such mineral values as developments of his product or existence are made.” That is to say, if the productions are increased, the board may increase the amount of the value upon the duplicate. When the assessment is made it stands the same as the assessment of real estate or other property, and is subject to taxation in the same manner as taxes are levied and assessed upon other property generally. By the laws of Ohio, certaiu bodies, commencing with officers of the state assess or fix the rate to be assessed for certain purposes upon taxable property of the state of Ohio. The board of county commissioners may make assessments and fix the rate of taxation that is to be upon the property in the county, that is to say, upon the value that is placed upon the duplicate, and these amounts are fixed for exclusive purposes, for purposes of the state, for purposes of school and county township purposes, and for the various

purposes for which money is raised by taxation, and

assume under this allegation that inasmuch as the money has been raised in accordance with this section of the statute that it has been

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State ex rel. Nieman, Treasurer v. Fangboner, Auditor.

raised by the board of equalization fixing the value of these oil wells, and then the county auditor assesses upon such values the various rates of taxation which he is authorized to assess under the laws which rates have been fixed by the various public authorities, so this sum of $2,318.67 represents in fact the moneys that have been collected by the treasurer for the,various purposes for which money is raised in the state and that the aggregate amount is $2,318.67.

The constitution of the state of Ohio under article 12, provides for levying taxes in the state. Section 5 of that article reads as follows: "No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied.” Now tnis money being raised and paid into the treasury under the general laws of the state is to be paid out to the various treasurers and officers for the various purposes for which it has been assessed and collected. But this local law comes in and provides that this money which was so raised for specific and definite purposes shall be diverted from these purposes and shall be paid over to the treasurers of the township up to a certain amount and shall be used by them exclusively for the purpose of repairing roads, for road purposes, and the question is whether this act is in accordance with the statutes of the state of Ohio or whether in violation of the constitution of the state of Ohio. We have given this matter careful attention, because it is a question of importance to the townships interested. We are unable to see how we can sustain this act. Clearly it requires the treasurer to take these moneys that are raised for other specific purposes, and which the constitution especially says shall be applied to no other purposes, whatever, and applies them to another purpose to-wit: repairing of roads in different townships, and it seems to us so clear that that is a violation of this clause of the constitution that there can be no question want ever that the law should be declared to be unconsuliulionai.

Writ refused.
Kinney @ O'Farrell, Attorneys for Relator.
G. H. Withey, Prosecuting Attorney, for Respondent.

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Lucas Circuit Court.

MANDAMUS-BIDS-SCHOOLS.

(Lucas Circuit Court, February 9, 1897.)

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Haynes and King, JJ. *THE STATE OF OHIO EX REL. THE BRYCE FURNACE CO. v. THE BOARD

OF EDUCATION OF TOLEDO. A WRIT OF MANDAMUS WILL BE ALLOWED TO COMPEL A BOARD OF EDUCATION TO LET A CERTAIN CONTRACT, WHEN. A writ of mandamus will not be allowed to compel a board of education to

award a certain contract for furnishing a school house to the relator, who was a bidder for the same, unless he shows that he is the one under the law with whom the board should enter into the contract, and that, regardless of the rights of anybody else. Such relator cannot rely upon the weakness, or informality, or inrregularity of the bids or of the proposed actions of the school board with reference to awarding the contract to anybody else.

MANDAMUS. KING, J. (orally.)

The petition in this case was filed January 30, 1897, and application made for the allowance of an alternative writ of mandamus, and the writ allowed. The defendant appeared in court, and demurred to the petition, which raised the question whether the petition sets fortn a cause of action, and whether the plaintiff is entitled to the relief asked for.

The petition in supstance shows that the relator is a corporation, having its place of business in Toledo, engaged in the business of con. tracting, manufacturing, and putting in place heating and ventilating apparatus for public and other buildiugs; that the defendant is the Board Education of the city of Toledo, which is a city of the third grade of the first class, and a city school district of the first class. That in 1895 the board of education determined to erect a public school building in this city, and thereupon directed certain architects to prepare plans and specifications for the building, which were so prepared and adopted by the defendant; that the estimated costs of the building exceeded $10,000, and the estimated cost of the heating and ventilating apparatus exceeded $1,500. That thereupon notices were published for a period of four weeks, beginning on December 19, 1896, in newspapers of the city and county, soliciting bids in pursuance of said plans and specifications for two distinct parts of said building, viz., the heating and ventilating apparatus, and for a closet system to be placed therein, and published that said bids would be received up to 12 o'clock noon of the 11th day of January, 1897; that the notice provided that the bids must be in accordance with the statutes, and a copy of the notice is attached. The relator sets forth that it filed in due form within the time named in the notice a sealed bid, with a sufficient guaranty, in all respects as required by the notice pnblished and by the statutes, and therein proposed that it would do the work and furnish the material and apparatus for heating and ventilating the building, according to the plans and specifications, for the sum of $8,200, of which $6100 was for material, and $2,100 for labor; and that it would do the work and furnish the material and apparatus for the closet system for $1,250, divided into $1,050 for material and $190 for labor. The price of labor and of material in both respects were separately stated. A copy of

*For common pleas decision see 6 Dec., 235.

State of Ohio ex rel. v. Board of Education.

that bid, together with the proposed contract, is attached to the petition, and made a part thereof.

The relator avers that it was the lowest and best bid submitted, as required by the statute and said notice; that it has in all respects complied with the conditions of the notice and the provisions of the law regulating the matter of making bids. It avers that at the next meeting of the board after the bids were received, which was held on the 11th day of January, 1897, the day on which the bids were to be filed with the clerk of the board, they were laid over until the next regular meeting, when they were to be opened and acted upon; and that at the next regular meeting, on January 27, 1897, the board opened and read the bids, and thereupon announced that it did not intend to award the contract for the closet system in connection with the heating and ventilating, as a different arrangement had been decided upon, and that the bids for the closets would not be considered ; that it. however, proceeded to consider the bids for heating and ventilating, and upon motion accepted the bid of the Smead Furnace and Foundry Company, and awarded it the contract therefor, for the sum of $8,030.

It is further alleged in the petition that the defendant has not yet, but is about to, award the contract to the Smead Furnace and Foundry Co., that it is not the lowest and best bidder for said work; that it did not submit any sealed or written proposition in pursuance of said notice before 12 o'clock at noon of said day, but filed pretended bid and guaranty therefor, being the same bid filed by it under a former notice, but rejected by said board on or about August 18th, 1896, for the heating and ventilating apparatus and for the closet system, and that it did not in said bid state the price for labor and material separately as to either heating and ventilating apparatus and closet system, but put in a lump bid therefor, and made no bid therefor according to the plans and specifications, nor according to law. And it sets forth a copy of the Smead bid and guaranty, and makes them a part of its petition, and claims that they are not lower than the relator's bid, nor as low. It further alleges that because the labor and material is not so separately stated for the heating and ventilating apparatus, the exact amount thereof cannot be ascertained from. the bid.

It avers that it is ready and willing to enter ivto a contract and perform it, according to law, according to its bid, and according to the plans and specifications which have been adopted by the school board ; and also that it has demanded of the board that it should award the contract to the relator. It avers that unless restrained by the order of this court, said board of education will award the contract to the Smead Furnace and Foundry Co., and plaintiff will be without any remedy. It therefore asks that a writ of mandamus may issue against the board of education, commanding it to award said contract to the relator, and to duly execute the same; and also asks for an injunction, etc.,

Of course, the real relief asked for in this petition is the awarding of a writ of mandamus to compel the board of education to let the contract to the relator; and iu order to avail it to occupy that position, it must show that it is the one under the law with whom the board should enter into the contract; and that regardless of anybody else rights. It canuot, as it has been before held, rely upon the weakness, or informality, or irregularity of the bids or of the proposed action of the school board with reference to anybody else. The Smead Furnace and Foundry Co., is not a party to this action, and its rights cannot be adjudicated nor

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