The State ex rel. v. McBride et al.

*

clearly states the distinction: "In this connection, it may prove profitable to refer to the difference between the language this statute used to authorize a proceeding in quo warranto and that employed to limit the time within which to bring the proceeding. The action may be brought whenever a corporation exercises a 'franchise or privilege not conferred upon it by law.' The limitation of time is made to apply to the exercise of a 'power or franchise' under its charter. The phrase, 'franchise or privilege not conferred * by law,' is more comprehensive than the words power or franchise under its charter. The former phrase, according to the sense it ordinarily bears, doubtless includes many things not embraced by the latter. This marked difference of phraseology should not, needlessly, be attributed to accident. If the general assembly intended that where a corporation merely exercised a power or franchise under, that is by virtue of its charter, this power or franchise should not be challenged by the state after twenty years user, and also intended that an action in quo warranto might be brought against a corporation, and that, too, without limitation of time, whenever it claimed or exercised an unwarranted right or privilege respecting the property of the state, it chose, in the language just quoted, an appropriate medium to express such intention."

We think this case clearly recognizes the fact that the statute of limitations does apply in an action brought by the state, where the purpose and object of the action is simply to oust a corporation from the exercise of a franchise or power; but where it is to oust a corporation from the privilege of occupying lands belonging to the state, the statute does not apply. There is no apparent reason why the statute shoulld apply in the one case and not in the other. The reason for denying the application of the statute to a case in which the state is a party, does not rest on any peculiarity of the defendant, but on the supposed sovereignty of the state. If the right of the defendant is to be at all considered, the reasons will be quite as strong for applying the limitation of the statute to a case in which a municipal corporation is a party, as to a case in which the rights of a corporation other than municipal are challenged.

Article 13, section 1 of the constitution provides: "The general assembly shall pass no special act conferring corporate power." This applies to municipal as well as to all other corporations. It is so held in the case of State ex rel. Attorney-General v. Cincinnati, supra.

The remedy by quo warranto should equally apply to both classes of corporations; and the limitations, in our judgment, should be equally available in actions brought against either corporation. The language of the statute authorizing proceedings in quo warranto, section 6761, (4th clause) "When it has misused a franchise, privilege or right conferred upon it by law, or when it claims or holds the contract or otherwise, or has exercised a franchise, privilege or right in contravention of law." Clearly the right to maintain the action is given by the last clause of this section to question the franchise of the municipal corporation equally with that of corporations other than municipal. The limitation provided by section 6789, therefore, in our judgment, should apply to the one as well as to the other.

The language of the second clause of that section: "Nor shall an action be brought against the corporation for the exercise of a power or franchise under its charter, which it has used and exercised for a term of twenty years.

Cuyahoga Circuit Court.

By section 6761, the right to bring the action is given. Were it not for this limitation, it could be brought perhaps at any time; but this limitation was intended to operate, in our judgment, upon the right to bring the action. Such action can be brought against the corporation within the time limited. After the time limited, it cannot be brought. At the time when this action was instituted against the members of the sinking fund commissioners, no action could have been maintained against the city to oust it from the exercise of a franchise conferred upon or attempted to be conferred upon it by the act of 1862. It is true the action is instituted not against the city, but against the officers holding under an act, the constitutionality of which cannot be questioned by the state in an action against the city. The only ground upon which the right of the members of the sinking fund commissioners to hold the office from which they are sought to be ousted, is the alleged unconstitutionality of the act of 1862; and we hold that it is a good answer to such claim, that more than twenty years has elapsed since the right of action has accrued. If the city cannot now be ousted from the exercise of the franchise which it is exercising under this alleged unconstitutional act, neither can the officers appointed or elected to perform the duties imposed by such act, be ousted. It would certainly be a very extraor dinary proposition to claim that the act can stand against a direct assault, and yet officers elected or appointed under the act ousted because of the invalidity of the act. The argument seems to come to this: That the act must stand because no proceeding in quo warranto can be brought to test the right of the city to exercise and enjoy the franchise; but the officers necessary to this enjoyment and enforcement can be ousted as fast as elected or appointed; and in that way the enjoyment of the fran chise prevented; doing indirectly what cannot be done directly. We therefore hold that the act creating the office of sinking fund commissioners was not at the time this action was instituted open to an attack on the ground of its unconstitutionality in proceedings in quo warranto, either against the city or as a reason for ousting the commissioners exercising authority under the act.

The latter clause of section 6789, reads: "Nor shall an action be brought against an officer to oust him from his office, unless within three years after the cause of such ouster, or the right to hold the office, arose." My associates are of the opinion that the case might well be put upon that clause of the statute, and are of the opinion that the limitation provided in that clause of the statute is available in the action brought against the commissioners. I should have no doubt upon that proposition if it was sought to oust the commissioners upon any other ground than the constitutionality of the act creating the office, and under which the commissioners were appointed. As is is, I prefer to put the case upon the proposition that I have discussed.

The result of this reasoning and holding, without further discussion of the question, leads to the overruling of the demurrer as to the first, second and third defenses in the answers.

As to the fourth defense, we are inclined to sustain the demurrer, which sets up certain facts from which, it is claimed, the act originally was a constitutional act.

As to the fifth defense, which relies upon the recognition of this act and certain changes that have been made in it by the general assembly from time to time (the acts relied upon are referred to simply by title),

The State ex rel. v. McBride et al.

527

we prefer, without committing the court very strongly to any proposition contained in that defense, to overrule the demurrer and deal with the law applicable to the defense there attempted to be made, if this case shall be tried, when the facts are fully before the court, demurrer to that defense will be overruled.

Now as to the second defense, the conclusion in the case against the sinking fund commissioners renders it unnecessary to consider many of the questions discussed in the case of the board of park commissioners. If the sinking fund commissioners hold their office by a title unassailable, then their official acts cannot be challenged in this proceeding. The appointment of the members of the board of park commissioners by the sinking fund commissioners was an official act which the latter board was authorized to perform, and the appointment was a valid one. But the official standing of the members of the park board is unassailable on other grounds. It is conceded that if the sinking fund commissioners are officers de facto, the appointment of the members of the park board cannot be challenged in this proceeding. We are of the opinion that they are officers de facto. It is said that there can be no officer de facto unless there is a de jure office to fill; that an unconstitutional act being void, creates no office; and that one holding an office thus attempted to be created, cannot be a de facto officer. The weight of authority possible is in support of this proposition. Certainly one holding an office, the existence of which is supported by no color of law, is not an officer de facto; but one holding an office created or attempted to be created by an act unconstitutional, may be an officer de facto. Such we think is the holding in The State v. Gardner, 54 O. S., 24. Judge Bradbury, speaking for the court in the discussion of the case, says (page 31): "If the official acts of officers, acting in an office created by an unconstitutional statute, should be regarded as falling within the principle that sustains the act of de facto officers, until the statute has been held unconstitutional by competent judicial authority in a proceeding appropriate to that end, all difficulty vanishes." And then, as we understand his reasoning, he proceeds to vanish the difficulties by holding that to be the law.

Judge Spear, who also delivered the opinion in the case, (page 49) says: "It is sought to dispose of this case by use of the phrase that there can be no officer de facto unless there is an office to fill. The propsition begs the question. The obvious answer is that there is an office to fill whenever our law-making power, exercising its authority to create a constitutional office, by a duly enacted and promulgated statute, ordains there shall be such office, and remains in office until the act is repealed or held unconstitutional by a court of competent authority.'

Each of the judges delivering an opinion in the case, reviews extensively the authorities bearing upon this proposition; and as we read these opinions, decline to follow cases cited in support of plaintiff's contention. We think the court in that case intended to and does hold that the official acts of officers acting in an office created by an unconstitutional act, are de facto officers until the statute has been held unconstitutional by competent judicial authority. Certainly the discussion and reasoning of that court is such that we would not feel justified in holding otherwise. The authorities supporting the proposition are fully reviewed in that case, and we will not stop to cite them.

Again, we are of the opinion that the action to oust the members of

Lorain Circuit Court.

the park board because of the unconstitutionality of the statute creating the appointing board, is a collateral attack upon the validity of that statute, that cannot be made in this proceeding.

We had intended to discuss somewhat further the last two propositions named; but as they are not essential to the conclusions reached, we will not spend any time in the case. The demurrers interposed in the second case against the park board, will be overruled as to all defenses.

MUNICIPAL CORPORATIONS.

[Lorain Circuit Court, May 7, 1897.]

Hale, Marvin and Caldwell, JJ.

THE ELYRIA GAS & WATER Co. v. THE CITY OF ELYRIA, ET AL

1. PASSAGE OF A PRELIMINARY RESOLUTION.

A preliminary resolution, passed by the council of a municipal corporation, declaring it necessary to issue bonds for the erection and purchase of waterworks for the purpose of supplying water to the inhabitants of such municipality, is not a resolution of a general or permanent nature, and, therefore, it is not necessary that such resolution be read at three separate meetings of the council before its final adoption.

2. INDEFINITENESS OF THE RESOLUTION AS TO THE AMOUNT OF BONDS TO BE ISSUED -EFFECT.

Such resolution is not valid on the ground that it does not definitely state the amount of the bonds to be issued, but merely provides for the issue of bonds not to exceed $250,000.

& THE RESOLUTION DOES NOT STATE A DOUBLE PURPOSE.

A preliminary resolution, passed by the council of a municipal corporation, providing for the erection and purchase of waterworks, the city having a plant already in existence, does not state a double purpose for which the bonds of the municipality were to be issued, the sole object being to supply the city with water.

4. UNITING TWO OR MORE THINGS IN A PROPOSED IMPROVEMENT.

The council of a municipal corporation may unite in a proposed improvement two or more things so authorized by law, providing they are so intimately connected as in fact to form but one improvement.

5. VARIANCE IN THE READING OF THE RESOLUTION, PROCLAMATION AND ORDINANCE EFFECT.

Where the preliminary resolution, passed by the council of a municipal corporation, providing for the erection of waterworks, was "To purchase and construct," and the proclamation issued by the mayor, in submitting the proposition to the vote of the people, designating the purpose for which the bonds were to be issued, was "For the erection of waterworks," and the ordinance, as passed by the council after the vote of the people, was "For the erection or construction of waterworks: Held, that the variance in the reading of the resolution, proclamation of the mayor and the ordinance as passed by the council does not invalidate the proceedings.

HAI, J.

The case of the Elyria Gas and Water Company v. The City of Elyria comes into this court by appeal, and has been submitted upon an agreed statement of facts. The case has been prepared with more than usual care by the attorneys upon both sides.

The city had, prior to the commencement of this action, taken

The Elyria Gas and Water Co. v. The City of Elyria et al.

certain preliminary steps towards the erection of waterworks to supply the city and its inhabitants with water, and was proceeding in the execution of the plan proposed when this action was commenced.

The plaintiff is a corporation, having its principal place of business in this city, and therefore a resident of the city and a taxpayer. It requested the corporation counsel or solicitor of the city to bring an action to enjoin the city from proceeding further with that enterprise, on the ground that to do so was an abuse of corporate power; that the city was proceeding illegally in the execution of that enterprise.

It is objected, first, that the case made does not fall within the statute authorizing a taxpayer, on the refusal of the solicitor to bring the action. It is somewhat doubtful whether this action is properly maintainable by this plaintiff.

Generally, if the action is to enforce the private rights of the corporation bringing the action, it could not be maintained.

It is only to enforce a public right that this action can be sustained. There are certain allegations in the petition and certain facts that transpired on the hearing that certainly could not but raise a query in the minds of the court whether in fact the real object of the action was not to enforce some private rights of the plaintiff.

It will be conceded that by the statute of the state ample authority is given to the city council or to a municipality to construct and maintain waterworks for the purpose of supplying a city and its inhabitants with water. I suppose it will be further conceded that, except for the limitation contained in the statute, that power conferred upon the municipality is ample to enable it to construct waterworks without a vote of the electors of the corporation if there is money in the treasury subject to an appropriation for that purpose.

But it might defeat an enterprise of this kind to delay the commencement of the work until the money needed could be raised by taxation. That is, to get the money into the treasury by taxation before going forward with the construction would necessitate a delay that would be entirely unreasonable.

The limitation to which I refer is contained in section 2702 Revised Statutes.

And this provides that no contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the appropriation or expenditure of money be passed by the council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and, if there is not an auditor, the clerk thereof shall first certify that the money required for the contract agreement or other obligation, or to pay the 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. It will be seen that the corporation could not go forward with this work until the money was in the treasury to pay the contracts that must be made to carry out the enterprise.

To enable the city to go forward with the work the legislature has conferred upon the municipality, with certain restrictions, the power to issue and sell bonds and put the money into the treasury.

The mode to be pursued in the issuing and selling of these bonds is quite clearly defined by statute. Section 2835 Revised Statutes pro