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Bond issue by municipality-Section 2835, Revised Statutes-Bond

issue for equipping buildings of fire department For apparatus other than fire enginesInterpretation of Section 2835-27, Revised Statutes-Power of municipal corporation to appropriate money for specific purpose-Requirement of law that money be in treasury before appropriation-Section 1536-205, Revised Statutes-Does not apply to appropriation from sale of bonds, when.

1. A municipal corporation may, under Section 2835, Revised

Statutes, issue its bonds for the purpose of equipping buildings used by its fire department with apparatus other than, or in addition to fire engines. The special provisions of paragraph 27 do not govern the general provisions of paragraph 2 of

that section. 2. The council of a municipal corporation may, by ordinance, ap

propriate money and authorize the directors of public safety to enter into contracts for an authorized purpose, and in such case the particular contract made by the directors to effect that purpose, if within the appropriation and the authority, does

not have to be approved by council. 3. Section 1536-205, Revised Statutes, providing that no contract,

agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or other order for the expenditure of money, be passed by the council or by any board or officer of the municipal corporation, unless the auditor of the corporation shall first certify to council 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, does not apply to an ordinance appropriating the money obtained by council, from a sale of bonds made by it, to the purpose for which the bonds were sold.

(No. 11709—Decided October 19, 1909.)

ERROR to the Circuit Court of Summit county.

Argument for Plaintiffs in Error.

The facts are stated in the opinion.

Mr. Nicholas M. Greenberger, city solicitor, Mr. Jonathan Taylor, assistant city solicitor, and Messrs. Rogers & Rowley, for plaintiffs in error.

The sole question presented in the record is whether the city of Akron under the provisions of the so-called Longworth Act, Section 2835, Revised Statutes, is authorized to issue bonds and disburse the proceeds by the purchase of the apparatus in question. The plaintiff relies upon two sections of this act. Sections 2835-27 and 2835-2, Revised Statutes.

Under sub-section 2835-27 the plaintiff is clearly authorized to purchase the apparatus herein described. By its express terms it empowers the city to issue bonds to purchase "fire engines.” The apparatus in question is a fire engine. Technically it is called a combination chemical engine and hose wagon. The name “combination chemical engine and hose wagon” is descriptive in its character and describes the particular class of fire engines to which this apparatus belongs.

The restricted construction placed upon this statute by the circuit court, limiting the term "fire engine" to steam fire engine, is not warranted either by the plain language of the statute or the evident intention of the legislature as gathered from the facts and circumstances of which they must be presumed to have had knowledge. Definition of "fire engine,” in Century Dictionary and Standard Dictionary.

Argument for Plaintiffs in Error.

The language of Section 2835-27, Revised Statutes, is broad and comprehensive. It was intended to confer upon the city full power to make a building useful after it was erected by equipping it and enjoying it. Definition of “equip” and “equipment” in Standard Dictionary and Century Dictionary.

The courts upon a number of occasions have had occasion to define the word "equipment" and we call attention to these definitions found in 3 Words & Phrases Judicially Defined, 2432. Gleim v. Steamboat Belmont, 11 Mo., 112; Rubey v. Coal & Mining Co., 21 Mo. App., 159; Appeal Tax Court v. St. Peter's Academy, 50 Md., 321; People v. Railway Co., 52 N. E. Rep., 292; Railway Co. v. Hoyt, 89 Wis., 314, 62 N. W. Rep., 189; Railway Co. v. Sandal, 3 Willson (Tex.), 379.

As to the construction which should be given acts such as the one under consideration we call attention to the case of Rock Creek v. Strong, 24 Law Ed., 815.

The council could not, and it was not intended, under the new municipal code, that it should do more than in a general way authorize the expenditure.

An interesting case bearing upon this phase of the controversy is that of Ampt v. Cincinnati, 6 N. P., 208, 17 C. C. 520, 60 Ohio St., 621.

If the court should, however, be of the opinion that the approval of the council of the contract in question is necessary, that would not authorize it permanent injunction, but only a temperary order until the council could have an opportunity to act in the premises.

Argument for Defendant in Error.

We insist that the requirements of the statutes were fully complied with. Sections 1536-618 and 1536-690, Revised Statutes.

These two statutes must be construed together. The second qualifies the first and specifically states just what action council must take.

We submit that the council by ordinance passed April 6, 1908, authorized the directors of public safety to enter into the contract in question.

Some light is thrown upon the question here involved by the case of Emmert v. Elyria, 74 Ohio St., 185. There the court had under consideration Section 1536-215, Revised Statutes.

The real test to determine the validity of the expenditure of the money realized from the sale of the bonds,-if this court should be of the opinion that the only authority the city has to make such expenditure, is Section No. 27 of the so-called Longworth Act, Section 2835, Revised Statutes, is whether such apparatus is commonly and generally known and classed as a fire engine. If so, the expenditure for the purchase of the same becomes legal notwithstanding it may have been called equipment

Messrs. Grant, Sieber & Mather and Messrs. Otis, Beery & Otis, for defendant in error.

1. The council did not authorize, or attempt to authorize, the directors of public safety to purchase the apparatus in question.

2. No part of the proceeds from the sale of bonds could lawfully be expended for the purchase of apparatus of such kind.

Argument for Defendant in Error.

We shall discuss these two propositions in their order.

1. Approval of council is wanting. The contract awarded by the directors of public safety was for the expenditure of $13,500.00, and the council took no action whatever with respect to authorizing or approving the contract. Sections 1536618 and 1536-690, Revised Statutes.

2. The apparatus cannot lawfully be paid for out of proceeds from the sale of bonds. It is contended by counsel for plaintiffs in error that authority to issue bonds for purchasing combination hose and chemical wagons is conferred either by the paragraph of Section 2835, Revised Statutes, numbered 2, or by the paragraph thereof numbered 27.

It is clear that paragraph 27 does not authorize bonds for purchasing apparatus of the kind in question, unless a combination hose and chemical wagon is a fire engine. . But, as hereinbefore pointed out, “a fire engine,” as mentioned in said ordinance 1573, cannot possibly be held to include three combination hose and chemical wagons. It is, therefore, apparent that paragraph 27 does not furnish authority for purchasing the apparatus with funds derived from the sale of bonds.

And it is equally clear that paragraph 2 does not authorize bonds for this purpose. It is true that this paragraph authorizes bonds “for equipping and furnishing” “any building authorized by this section.” The “equipping" and "furnishing" therein mentioned cannot, however, properly be construed to include apparatus of a fire department designed for extinguishing fires, for the reason

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