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Opinion Per Curiam.

windows could not be easily cleaned from within, and that Henson fell from a window above the second story of the building, and that the failure of defendant to comply with the ordinance was the proximate cause of his death, its verdict must be for plaintiff (defendant in error). In its general charge the court used practically the same language, and instructed the jury further, that, if it should find that the window could be easily cleaned from within, the ordinance did not apply so far as it required the use of the suitable device mentioned in the ordinance. We find no error in either the special request or in the general charge on this proposition. We think it is in accord with the holding of this court in Schell v. DuBois, Admr., 94 Ohio St., 93. Whether or not the window in question could be easily cleaned from within, whether there was a violation of the ordinance, and whether such violation, if any there was, was the proximate cause of the death of Henson, were questions of fact properly submitted to the jury. The general verdict of the jury may have been based upon the violation of the ordinance, and it cannot be said that there was no substantial evidence tending to show that there was a violation of the ordinance and that such violation was the proximate cause of the death of Henson. In view of our holding as to the ordinance, it becomes unnecessary to consider the other assignments of error.

Judgment affirmed. NICHOLS, C. J., WANAMAKER, NEWMAN and JOHNSON, JJ., concur.

Statement of the Case.



Statutory limitations on expenditure of money — By officer or board

on public work Court no right to construe express language of law, when - Doubt as to power resolved in favor of public - Disposition of earnings of county moneys Powers of county commissioners.

1. Where the statute places an express limitation upon the amount

of money to be expended on any public work by any officer, or board, the contractual power of such officer, or board, is fixed

by such statutory limit. 2. Where the statute delegates power to any administrative board,

such as a board of county commissioners, to fix the limit of such public expenditure, and such board so fixes a limit in language free from doubt, there is no right in any court to construe said language, and the power of such administrative

board is thereby limited to the amount so fixed. 3. In case of doubt as to the right of any administrative board to

expend public moneys under a legislative grant, such doubt must be resolved in favor of the public and against the grant

of power. 4. The earnings of all county moneys under the depositary law

generally belong to the county unless the statute expressly provides otherwise.

(No. 15437 — Decided March 6, 1917.)


This is an action for a writ of mandamus against Joseph Melroy Pierce, as auditor of Clark county, to require him to pay an order of the board of trustees, appointed by the governor of Ohio to erect a memorial building in said county, under the provisions of Section 3059 et seq., General Code.

Statement of the Case.

On October 3, 1912, the commissioners of Clark county, Ohio, passed a resolution pursuant to Section 3059, General Code, stating that in their opinion it was desirable to erect, furnish and maintain a memorial building, and to expend for such purpose a sum of money not to exceed $250,000; thereupon the governor appointed five citizens as a board of trustees, who organized agreeably to law and submitted to the people at the next election the question of issuing $250,000 of bonds of the county; and the same having been approved such issue was sold by the commissioners at the request of the memorial building trustees, the proceeds of said sale being $250,000. The memorial fund thus arising was placed by the county treasurer in a depositary, earning thereby the sum of $18,000.

The board of trustees secured a site, employed an architect who perfected plans and specifications, and on or about September 5, 1914, entered into a written contract with the relator for the complete construction of the memorial building at an aggregate cost of $205,090.13.

In the acquisition of the site, the employment of the architect, and other incidental matters, said board of trustees incurred expenses aggregating about $57,000, the total aggregate expended or contracted to be expended in connection with said project being $262,000, all but about $15,000 of which has been paid.

The question is whether the interest or increment arising from the deposit of said funds by the county treasurer may be added to the amount which the memorial trustees are authorized to expend; or,

Opinion, per WANAMAKER, J.

to the contrary, are the memorial trustees limited to the $250,000 provided in the original resolution of the commissioners of Clark county?

Mr. J. E. Bowman and Mr. J. Warren Keifer, for plaintiff.

Mr. Charles E. Ballard, for defendant.

WANAMAKER, J. Section 18 of the Bill of Rights of the Ohio Constitution of 1802 contained the very wholesome admonition "That a frequent recurrence to the fundamental principles of civil government, is absolutely necessary to preserve the blessings of liberty.”

It is as true to-day as it was 115 years ago.

The Federal Constitution is clearly a document of delegated powers. True, it was not such in its original form, but by virtue of the 10th Amendment it became such beyond all doubt. This amendment reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The same basic doctrine is announced in most of the state constitutions, particularly the Ohio Constitution of 1851, which is still, in this respect, in force. Section 20 of the Bill of Rights reads:

“This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people."

Opinion, per WANAMAKER, J.

This same doctrine of delegated power with reference to constitutions very generally prevails when the legislature assumes to confer, within its constitutional grant, certain powers upon various political subdivisions of the state or upon some officer, board or commission of such subdivision. Such grant of power, by virtue of a statute, may

, be either express or implied, but the limitation put upon the implied power is that it is only such as may be reasonably necessary to make the express power effective.

In short, the implied power is only incidental or ancillary to an express power, and, if there be no express grant, it follows, as a matter of course, that there can be no implied grant.

In construing such grant of power, particularly administrative power through and by a legislative body, the rules are well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it. It is one of the reserved powers that the legislative body no doubt had, but failed to delegate to the administrative board or body in question.

Now, how stands the case at bar? The whole question pivots on the construction of the statute.

Section 3059, General Code, provides that when the memorial building is to be erected the county commissioners in their resolutions shall state: "That in their opinion it is desirable to erect

a memorial building * * * and to expend for such purpose an amount to be named by them not to exceed $250,000 in any one instance.”

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