Opinion
No. 27988
Decided February 21, 1940.
Mandamus — Writ issued to compel delivery of voted county bonds — Issuance of bonds not barred by expiration of time after election, when — Section 2293-23b, General Code (117 Ohio Laws, 867).
IN MANDAMUS.
At the general election on November 4, 1930, the electors of Cuyahoga county authorized the issuance of bonds in the sum of $6,000,000 for the purpose of providing funds to construct a bridge over the valley of the Cuyahoga river, together with the necessary approaches thereto, on or along Main avenue and the extension thereof as then or thereafter established as a county road, and to acquire necessary land, easements and rights for such construction. In pursuance of that authorization the county commissioners issued and sold four series of bonds aggregating $4,305,500 and designated as series "A" to "D" inclusive.
On November 9, 1939, the commissioners passed a resolution authorizing the issuance of $700,000 of bonds designated as series "E" to provide additional funds for the purposes for which the bonds were voted by the electors, and after proceeding in conformity with the Uniform Bond Act the issue was sold to McDonald-Coolidge Company which has offered to take delivery of the bonds but the respondents, as county commissioners and auditor, refused to deliver the bonds upon payment of the purchase price therefor.
A writ of mandamus is sought from this court, commanding the respondents to deliver the bonds in accordance with the award of the county commissioners. A demurrer has been filed upon the ground that the petition does not state facts which show a cause of action.
Mr. Thomas M. Miller, for relator.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Ralph W. Edwards, for respondents.
The sole question raised in this proceeding is whether the power to issue additional bonds has been affected by the lapse of time intervening between the authorization by the election and the proposed issuance.
There is no constitutional time limitation and at the date when the electorate approved this bond issue the General Assembly had placed no time limit within which voted bonds could be issued.
Section 2293-23b, General Code (115 Ohio Laws, 442), effective October 4, 1933, placed a time limit upon the power to issue voted bonds and subsequent amendments of that section extended the time limit to January 1, 1941 (117 Ohio Laws, 867).
It has been stated in argument that prior to beginning the present mandamus action a taxpayer of Cuyahoga county made written demand that the prosecuting attorney institute an action to enjoin the commissioners from issuing and delivering the bonds on the ground that since an unreasonable length of time had elapsed between the election and the attempted exercise of power, the authority conferred by the election had become stale and the power had lapsed.
The legislative branch of the government having extended the time when voted bonds may be issued, this court cannot say that an unreasonable length of time had elapsed and that the authority conferred by the election had lapsed when exercised within the period prescribed by statute.
The demurrer to the petition will be overruled and, respondents not desiring to plead further a writ of mandamus will be allowed.
Writ allowed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.