Opinion
Decided February 19, 1934.
Municipal corporations — Contract for materials for bridge repair void — Contract not authorized by council and no certificate that funds available — Section 5625-33, General Code — Sections 226 and 228, Toledo Charter — Payment enjoined, although materials used.
City's contract for purchase of materials for bridge repair, not authorized by city council and executed without director of finance certifying that money required for contract was in treasury to credit of fund from which it was to be drawn, and in absence of certificate that money was in treasury applicable to such purpose, held void, entitling taxpayer to have city's payment of money thereunder enjoined, though materials had been used for purposes intended (Section 5625-33, General Code).
APPEAL: Court of Appeals for Lucas county.
Mr. Edward Lamb, Mr. W.S. Thurstin, Jr., Mr. W.K. Fenton and Mr. David L. Seps, for plaintiff.
Mr. Ralph W. Doty, director of law, and Mr. Clarence A. Irwin, for defendants.
Mr. Martin S. Dodd, amicus curiae.
The action was commenced in the Court of Common Pleas by this plaintiff, Fred H. Hawley, as a taxpayer of the city of Toledo, to enjoin the city from paying about $15,000 under a contract which it claims to have made for the purchase of equipment and material in the repair and reconstruction of the Oak street bridge, on Oak street in the city of Toledo, which bridge spans the New York Central Railroad tracks.
The evidence shows that the material has been used and appropriated for the purposes intended by the city, but that the price thereof has not been paid. On trial in the Court of Common Pleas, the injunction was dissolved and the petition dismissed, from which decree the plaintiff appealed to this court.
The evidence shows that the expenditure was not authorized by the city council and was in violation of Section 228 of the City Charter, which prohibits the making of contracts involving the expenditure of $500 or more without the authorization of the city council. The contract was also in violation of Section 226 of the City Charter, which prohibits the entering into a contract by the city involving the expenditure of money unless the director of finance shall first certify to the council or to the proper officer that the money required for such contract is in the treasury to the credit of the fund from which it is to be drawn and not appropriated for any other purpose. The contract also violated the provisions of Section 5625-33, General Code, in that there was no certificate that the money was in the treasury applicable to this purpose.
No doubt can exist that the violation of these provisions rendered the contract attempted to be entered into absolutely void and of no binding effect on the city. It was so held in a decision of this court rendered on January 23, 1934, entitled City of Toledo v. National Supply Co., 40 Court of Appeals Opinions, Sixth District, unreported, page 209, as to a similar contract. This principle was established in this state many years ago and has been announced in a great many decisions of the Supreme Court, of which we cite only three. Lancaster v. Miller, 58 Ohio St. 558, 51 N.E. 52; Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406, 54 N.E. 372; Phillips v. Hume, 122 Ohio St. 11, 170 N.E. 438.
Since the making of the alleged contract there has been a change of administration in the city, and it is fair to say that the present Director of Law and his assistant concede the invalidity of the contract. The plaintiff is entitled to an injunction, and that will be the decree of the court.
Injunction allowed.
WILLIAMS and LLOYD, JJ., concur.