Summary
In Phillips, the City Commission of Lima passed ordinances authorizing its purchasing agent, defendant Hume, to obtain certain items.
Summary of this case from State ex rel. Cronin v. WaldOpinion
No. 21846
Decided February 19, 1930.
Municipal corporations — Power to incur debts may be limited by general laws — Restrictions applicable to charter cities — Section 6, Article XIII, and Section 13, Article XVIII, Constitution — Advertisement for proposals when expenditure exceeds $500 — Section 4328, General Code — Conflicting charter provisions yield to state laws.
1. The power of municipalities to incur debts may be limited or restricted by general laws. Such limitations or restrictions are warranted by Section 6, Article XIII of the Constitution adopted in 1851, and also by Section 13, Article XVIII of the amendments adopted in 1912. Such limitations or restrictions apply to all municipalities, whether operating under charter or otherwise. ( State, ex rel. Toledo, v. Cooper, 97 Ohio St. 86, State, ex rel., v. Bish, 104 Ohio St. 206, and Berry et al. v. Columbus, 104 Ohio St. 607, are approved and followed.)
2. The requirement for advertising provided in Section 4328, General Code, is one of the methods of limitation expressly imposed upon the debt incurring power of municipalities, when an expenditure exceeds five hundred dollars; and if the provisions of a city charter are in conflict with a state law upon that method they must yield to the requirements of the state law.
ERROR to the Court of Appeals of Allen county.
Lima is a charter city with a commission form of government. Under its charter the defendant Frank H. Hume became its purchasing agent and the defendant Irving C. Brower its city manager. In 1929 the city commission passed various ordinances authorizing the defendant Hume to purchase certain fire equipment, asphalt filler, and repaving brick for street repairs. Three separate contracts were entered into by the defendants for the purchase of these materials, and in each instance the contract price exceeded the sum of $500. No advertisement for bids on the materials so purchased was made. Bids were secured for materials involved under separate contracts made by the purchasing agent, and under a method of competition other than by advertising; this method was adopted by the purchasing agent under a claimed authority provided by the city charter. No fraud was found in any purchase transaction.
The plaintiff, as a taxpayer, instituted suit seeking to enjoin the defendants from purchasing said materials and from issuing vouchers for their payment.
The lower courts rendered judgment for the defendants and dismissed the petition. In the Court of Appeals the facts above recited were agreed to by the parties.
Mr. B.F. Welty, for plaintiff in error.
Mr. Paul T. Landis, for defendants in error.
Section 23 of the City Charter recites that, in case of purchase and sales of supplies, "if an amount in excess of three hundred dollars is involved, opportunity for competition shall be given."
Section 4328, General Code, provides that, when an expenditure exceeds $500, "the director of public service shall make a written contract with the lowest and best bidder after advertisement for not less than two or more than four consecutive weeks," etc.
In its journal entry the Court of Appeals stated that the only question in this controversy is whether the defendants were authorized to purchase supplies exceeding $500 without advertisement in a newspaper, as provided by Section 4328, General Code; or whether, under authority of the city charter, the defendants could purchase these supplies under competitive bidding secured without advertisement.
Section 6, Article XIII, of the Constitution adopted in 1851, stipulates that the General Assembly shall provide for the organization of cities, "and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power." And in the amendment adopted in 1912, Section 13, Article XVIII, recites that "laws may be passed to limit the power of municipalities to incur debts for local purposes."
It cannot successfully be disputed that the purchases and contracts for supplies made by the purchasing agent became debts; and the requirement for advertising contained in the statute was a restriction and a limitation upon the power of a municipality to incur such debts. Where the same principal and the same sections of the Constitution were involved, this court held that the power of all municipalities to levy taxes may be limited or restricted by general laws. State, ex rel. City of Toledo, v. Cooper, Aud., 97 Ohio St. 86, 119 N.E. 253. That case was later approved and followed in State, ex rel. City of Dayton, v. Bish, Aud., 104 Ohio St. 206, 135 N.E. 816, where the syllabus recites: "The power of municipalities both to incur debts and to levy taxes may be restricted or limited by law. And a municipality, by adopting a charter, cannot escape from limitations imposed thereon by the General Assembly." It must be remembered that Article XVIII, adopted in 1912, embraces all municipalities, charter or non-charter, and when, in Section 13 of that Article, it was again stipulated that the power of such municipalities to levy taxes or incur debts could be limited by state law, it furnishes a persuasive reason for applying that constitutional provision to all municipalities, whether operating under charter or otherwise. Consonant with that principle, this court in Berry v. City of Columbus, 104 Ohio St. 607, 136 N.E. 824, held that, under our present Constitution, the provisions of a city charter, relating to assessments which are in conflict with state laws, must yield to the requirements of the state laws.
The requirement for advertising, where expenditures exceed $500, was one of the methods of limitation expressly imposed upon the debt-incurring power of municipalities. The duty of advertising imposed upon the director of public service by Section 4328, General Code, is now exercised and discharged by the purchasing agent of Lima under the provisions of the city charter. The Code section relating to advertising applies to all cities; and we are loath to hold that a municipality can, by indirection, absolve itself from the restrictions imposed by Section 4328, General Code, by adopting the expedient of casting the duty of advertising upon one whom the charter designates a purchasing agent instead of the director of public service.
There is another and cogent reason requiring the reversal of the lower courts. Section 117 of the City Charter expressly provides that, "all general laws of the state applicable to municipal corporations * * * and which are not in conflict with the provisions of this Charter * * * shall be applicable to this city." Since Section 23 of the City Charter simply provides "opportunity for competition," without providing any method therefor, we do not find any conflict between the charter and state law upon that subject; the charter provision can well be construed to mean that the "opportunity for competition" is that provided by statute, since no particular or other method has been designated in the charter.
Since it appears by the agreement of the parties that the purchase of the repaving brick alone is involved, to which a restraining order could now apply, it is the opinion of this court that the judgments of the lower courts should be reversed and the defendants be enjoined from purchasing or issuing vouchers for said material until the city complies with the advertising requirements under the state law.
Judgment reversed.
MARSHALL, C.J., KINKADE, ROBINSON, MATTHIAS, DAY and ALLEN, JJ., concur.