Opinion
Decided October 11, 1935.
Bonds, public — Issued when delivered to purchaser — Section 5, Amended Senate Bill No. 38 (115 Ohio Laws, pt. 2, 80) — Requiring approval of project before issuance of bonds, complied with, when — Section 1, House Bill No. 544 (116 Ohio Laws, 580) — Requiring 65 per cent affirmative vote to authorize issuance of bonds, not retroactive — Section 17-4, General Code — Conferring power on board of education to fix rates of wages — Not unconstitutional delegation of legislative power — Provisions directory and not mandatory, when — Rates of wages to be attached to bidding blanks — Incorporating in folder with bidding blank, substantial compliance with statute.
1. School bonds for the purpose of financing the construction of a new building are issued, not at the time of the resolution of the board of education to issue bonds, but at the time of delivery to the purchaser; hence, bonds delivered to the purchaser subsequent to the approval of the project by the proper federal authorities, as required by Section 5 of Amended Senate Bill No. 38 (115 Ohio Laws, pt. 2, 80), are issued in conformity with such section, although the resolution of the board to issue the bonds was passed before such approval.
2. The provisions of House Bill No. 544 (116 Ohio Laws, 580), relative to elections to be held for the purpose of authorizing the issuance of bonds, are prospective and not retroactive. Hence, an affirmative vote by a majority only in favor of a school bond issue, being sufficient at the time of the election, is not invalidated by the above-named House Bill requiring a 65 per cent affirmative vote to carry the election.
3. Section 17-4, General Code, conferring power on any public authority authorized to contract for public improvements to fix and determine a fair rate of wages is not an unconstitutional delegation of legislative power but is an authorized delegation of legislative power by the state Legislature to a subordinate legislative body.
4. The provision of Section 17-4, General Code, requiring "the rate of wages so fixed shall be printed on the bidding blanks," is directory rather than mandatory, and a substantial compliance therewith is effected by incorporating the rates of wages in the folder with the bidding blank.
APPEAL: Court of Appeals for Seneca county.
Mr. Robert C. Carpenter and Mr. Paul R. Ebel, for plaintiff.
Messrs. Frick Abbott, Mr. Heath K. Cole and Mr. Paul A. Flynn, for defendants.
This case is in this court on appeal from the Common Pleas Court of Seneca county, Ohio. It is an action brought by the plaintiff, Jesse H. Hilton, against the Board of Education of Eden Township Rural School District of Eden township, Seneca county, Ohio; Clyde Price, John Boroff, Jesse Zeigler, J.E. Bare and Wilbur Buskirk, as members of said board, and Clyde Price, as clerk of said board, to enjoin said board of education from expending any portion of the proceeds realized from the sale of bonds in the sum of $61,000, issued by said board for the construction of a school building in said school district — the question of issuing such bonds having been, pursuant to a resolution of said board, submitted to the electors of said school district at the November election, 1934 — and to enjoin said board from entering into a contract with Philip Muessig for the construction of such school building.
The case is submitted to this court upon an agreed statement of facts and certain exhibits offered in evidence. The agreed statement of facts is in the words and figures following:
"1. The plaintiff, Jesse H. Hilton, is a resident and tax-payer of the Eden Township Rural School District.
"2. On October 5th, 1934, the defendant Board of Education passed an amended resolution calling for the submission to the voters at the November, 1934, election of the question of issuing bonds in the sum of $61,000.00 for the purpose of constructing a school building, said election to be held, and question submitted, `in conformity with the National Industrial Recovery Act, and Ohio Amended Substitute Bill No. 38, known as the Annat Act.'
"3. At the election held on November 6, 1934, 304 votes were cast in favor of, and 229 votes against, the bond issue.
"4. On November 19th, 1934, the defendant Board passed a resolution to issue the bonds of the school district in the sum of $61,000.00, said bonds to be dated as of February 1st, 1935.
"5. On November 19th, 1934, the defendant Board passed a resolution to offer said bonds for purchase to the Board of Commissioners of the Sinking Fund of said district.
"6. On November 19th, 1934, the Board of Commissioners of the Sinking Fund rejected the offer for purchase of said bonds.
"7. On November 19th, 1934, the defendant Board passed a resolution to offer said bonds for purchase to the State Teachers' Retirement System of Ohio.
"8. On January 18th, 1935, the State Teachers' Retirement System agreed to purchase said bonds, subject to the approval of the Attorney General of Ohio as to legality of proceedings.
"9. On April 29th, 1935, the grant agreement was executed between the United States of America, and the defendant Board of Education.
"10. On May 3rd, 1935, the Attorney General of Ohio approved the transcript of proceedings of the defendant Board of Education.
"11. On June 21st, 1935, the bonds were delivered to the State Teachers' Retirement System, and the defendant Board received therefor the sum of $61,000.00, with accrued interest from February 1st, 1935.
"12. On July 16th, 1935, the defendant Board passed a resolution determining to advertise for, and receive, bids for the construction of a school building, and by resolution fixed a minimum wage scale of $1.20 per hour for skilled labor, $.50 per hour for unskilled labor, with intermediate classifications, for labor employed by the successful contractor.
"13. Page 3 of the revised addenda to specifications, attached to the original petition, is the bidding blank for the general contract.
"14. On August 14th, 1935, the defendant Board opened the two submitted bids for the construction of the proposed school building, and will, unless enjoined, let the contract for the same to one Phillip Muessig."
As a part of this statement it was stipulated that the defendants objected to paragraph 13 of the agreed statement on the ground that it was a conclusion of law for determination by the court from the evidence in the case.
Three exhibits were offered in evidence, as follows: Plaintiff's Exhibit A was a folder indorsed "General, Plumbing, Heating ventilating Wiring Revised Addenda. Specifications for Eden Twp. Centralized School Building, Seneca County, Melmore, Ohio. P.W.A. Operation. Docket No. 9457X. July 17, 1935." Included in the folder, among other papers, are the following: Page 2, Notice to Bidders, in which is included the following clauses, "Attention of the bidder is called to the special PWA Wage and Labor Provisions included in the specifications. These provisions include maximum working hours and minimum wage rates of $1.20 per hour for skilled labor and $.50 per hour for unskilled labor, with intermediate wage classifications as adopted for Ohio and published by the State Engineer, Public Works Administration, January 15, 1935." And a form on page 3 reads as follows: "Bidding Blank Centralized School Building, Melmore, Eden Twp., Seneca Co., Ohio. General Contract. Date August 15, 1935. Eden Twp. Board of Education Clyde Price, Clerk, Melmore, Ohio. Gentlemen: The undersigned hereby proposes and agrees to furnish all the work necessary for and reasonably incidental to the proper completion of the work for the General Contract of the Centralized School Building, at Melmore, Eden Twp., Seneca Co., Ohio, in exact accordance with the drawings and specifications as prepared by Peter M. Hulsken, Architect, and Lyman T. Strong, Associate, Lima, Ohio, all in accordance with PWA Requirements as follows: Base Bid General — Labor $______. Material $______. Total ______. Alternate A: Deduct — Labor $______, Material $______ Total $______. Alternate B: Add — Labor $______ Material $______ Total $______. Enclosed find . . . . . . . . Bid Bond ______. Certified check ______ which amount is 5% of the total cost of bid, including Alternates. Respectfully submitted, ______;" and on page 7, under the heading "Labor Classification and Minimum Wage Schedule for all Non-Federal PWA Projects in Ohio," the following: "General Regulations. This entire bulletin shall be made a part of all specifications and contracts for Non-Federal Public Works projects in the State of Ohio by binding it into the specifications, or shall be referred to by adding the following clause to Art. C, Sec. 2 (a), Page 3, Bulletin No. 2, revised March 3, 1934: `Classification of workmen and minimum wage rates on Ohio non-Federal P.W.A. projects shall conform to the Labor Classification and Minimum Wage Schedule, revised January 15, 1935, known as Bulletin No. 16, and on file with the specifications for this project.' This entire bulletin, or the above clause, together with the construction regulations on pages 3, 4, 5, 6, 7 and 8, of Bulletin 2, revised March 3, 1934, are to be written into and made a part of all specifications for Ohio non-Federal P.W.A. projects."
On pages 8 and 9 of the folder further detailed information is given as to the classification of employees and the hours and days of labor.
Plaintiff's Exhibit B which is the minute book of the Board of Education.
Plaintiff's Exhibit C, which is a copy of the grant agreement between the Board of Education of Eden Township Rural School District and the United States of America, and is in the ordinary form of grant agreement for P.W.A. projects.
The plaintiff contends that the proceedings had by the school board are void, and that further action should be enjoined for the following reasons:
First. If the passage by the defendant board on November 19, 1934, of the resolution to issue the bonds, operated as an issuance of the bonds, the bonds were issued before the grant agreement with the Federal Government was signed on April 29, 1935, contrary to the provisions of Amended Senate Bill No. 38, Volume 115, Part 2, Page 80, Laws of Ohio, then in full force and effect, under which the bonds referred to purport to have been issued, the provision relied on by the plaintiff appearing in Section 5 of said Bill, and reading as follows:
"But no such bonds shall be issued, whether under authority of an election or otherwise, excepting to the extent that the project or projects thereby to be financed shall, prior to the issue thereof, have received the approval of the proper federal authorities, nor until a contract or contracts shall have been entered into between the proper authorities of the subdivision and the proper federal authorities, pursuant to the said `national industrial recovery act.'"
Second. If the issuance of the bonds became effective on June 21, 1935, the date of the delivery of the bonds to the Teachers' Retirement System, the plaintiff contends that the provisions of House Bill 544 (116 Ohio Laws, 580), which became effective June 7, 1935, apply, and that under the provisions of subdivision 3 of Section 1 of this bill the bond issue required the affirmative vote of at least sixty-five per cent of those voting upon the proposition; and that the vote of 304 votes in favor of the proposition, as against 229 votes against the proposition, at the election on November 6, 1934, was insufficient under this paragraph to authorize the issuance of the bonds, although under the law in effect at the time of such election such vote was sufficient to authorize the issuance of such bonds.
Third. That Section 17-4, General Code, conferring on any public authority authorized to contract for public improvement power to fix and determine a fair rate of wages to be paid by the successful bidder to the employees in the various branches or classes of the work, which shall not be less than the prevailing rate of wages paid for each such branch or class in the locality wherein the physical work upon such improvement is to be performed, is unconstitutional in that it is an unauthorized delegation of legislative power.
Fourth. That the provision of Section 17-4, General Code, that "the rate of wages so fixed shall be printed on the bidding blanks", was not complied with, and that the Board of Education is for that reason without authority to enter into a contract for the construction of such school building.
The contentions of the plaintiff will be discussed in the order mentioned.
First. In 44 Corpus Juris, 1224, Section 4202, it is stated:
"The execution of municipal bonds may precede their sale and delivery, and the bonds are issued, not when they are executed, but when they are delivered, that is, when the possession and control thereof pass from the municipality to the donee or purchaser or some person in whose hands they become a claim or charge against the municipality; even though executed, the bonds do not become operative and obligatory unless and until they are delivered."
Section 2293-13, General Code, provides in part:
"An indebtedness shall not be deemed to have been created or incurred until the delivery of the bonds or notes under contract of sale."
Applying the foregoing rule and statute to the facts in the case at bar we hold that the bonds, in contemplation of law, were not issued until the delivery of the same was made to the purchaser on June 21, 1935, at which time the grant agreement between the board and the United States of America was in full force and effect, and that consequently the bonds were issued in conformity with and not contrary to the provisions of Section 5 of Amended Senate Bill No. 38 hereinbefore referred to.
Second. It is contended by the plaintiff that the provisions of House Bill No. 544 (116 Ohio Laws, 580), which was passed as an emergency measure and approved June 7, 1935, are expressly made retroactive so as to apply to the election held on the question of issuing such bonds in November, 1934, and that as the question of issuing such bonds was approved by the affirmative vote of less than sixty-five per cent of those voting upon the proposition such vote was insufficient to authorize the issuance of such bonds, although at the time such election was held the affirmative vote of only a majority was required for the issuance of such bonds.
The specific provision on which the plaintiff relies as to making the provisions of House Bill No. 544 retroactive as applied to the election appears in Section 1 of said Bill. It reads as follows:
"This section as amended shall apply to all bond legislation enacted, passed and pending prior to and subsequent to the effective date of this amendment; and to all elections either regular or special held for the purposes of issuing bonds outside of existing debt and tax limitations to enable municipal corporations and other subdivisions of Ohio to participate in the federal aid as provided by the `national industrial recovery act', the `federal emergency relief act' and the emergency relief appropriation act of 1935."
It will be noted that the part of the paragraph quoted, preceding the semicolon, applies to bond legislation enacted, passed and pending prior to and subsequent to the effective date of the amendment; and the part of the paragraph following the semicolon refers to elections held for the purposes of issuing bonds, and does not in terms purport to apply to elections held prior to the effective date of the amendment. An election to authorize the issuance of bonds is not a part of the bond legislation, the bond legislation consisting only of the legislative acts of a school board in connection with the issuance of bonds. In the paragraph above referred to the legislature treats bond legislation and elections held for the purposes of issuing bonds as two separate subject-matters, the application of the provisions of the House Bill being expressly made retroactive as to bond legislation and not being made retroactive as to elections held for the purposes of issuing bonds.
Under the rule of construction of statutes provided in Section 26, General Code, there being no express provision making House Bill No. 544 retroactive as to elections, the provisions with reference to elections are prospective and not retroactive. As the provisions of House Bill No. 544, as applied to elections, are not retroactive, the affirmative vote cast in favor of the proposal to issue bonds, being sufficient when the election was held, continues to be sufficient and the result of the election is not invalidated by the provisions of said House Bill.
Third. Section 3 of Article VI of the Ohio Constitution provides as follows:
"Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds * * *."
Under this provision the legislature has power to establish school districts and to provide for their government and administration by such boards or officers as the legislature may deem advisable, and to confer such legislative and administrative powers on such boards or officers as it may deem essential. Under this authority the legislature had constitutional power to confer on the board of education of a school district power to legislate with reference to the construction of school buildings, the issuance of bonds therefor, and the terms and conditions upon which contracts for the construction of such school buildings should be let, including the hours of labor and the minimum wages to be paid, and so far as we have been able to find this power has never been questioned. Included in this power is the power of the legislature to provide as a limitation on the power conferred on a board of education that the rate of wages to be fixed by the board shall not be less than the prevailing scale.
It is not the delegation of power by the legislature to an executive, but is only the authorized delegation of legislative power by the state legislature to a subordinate legislative body established by it for the government of a political subdivision, and is similar to the power conferred by the legislature on city and village councils to legislate within prescribed limits for such political subdivisions. As the power is conferred on a subordinate legislative body it is not essential to the validity of the power granted for the legislature to fix standards for the fixing of wages and hours. This power exists independent of the provisions of Article II, Section 34 of the Ohio constitution, authorizing the passage of laws fixing and regulating the hours of labor, establishing the minimum wage, and providing for the comfort, health, safety and general welfare of all employees, but is in conformity with the spirit of this constitutional provision.
Section 17-4, General Code, conferring power on any public authority authorized to contract for public improvements to fix and determine a fair rate of wages to be paid by the successful bidder, is a valid legislative enactment authorized by the constitution and is not unconstitutional.
Fourth. The fourth contention of the plaintiff relates to the claimed failure of the board to comply with the provisions of Section 17-4, General Code, requiring that a "rate of wages so fixed shall be printed on the bidding blanks."
In the case at bar a blank entitled "A bidding blank" is incorporated with other papers in a folder under a binding. Among the papers incorporated in the folder is a notice to bidders showing the maximum working hours, minimum wage rates adopted by the board, and also a schedule setting up these maximum hour and wage rates.
The legislative purpose in providing that rate of wages fixed should be printed on the bidding blanks was to advise prospective bidders of the fixing of such wages. This purpose was fully accomplished by incorporating the rates of wages in the folder with the bidding blank.
In determining whether the provisions of the statute are mandatory or directory "`It is the duty of courts of justice,' said Lord Campbell, `to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.'" Sutherland Statutory Construction (Lewis' 2nd Ed.), Volume 2, page 1115.
"Unless a fair consideration of a statute, directing the mode of proceeding of public officers, shows that the legislature intended compliance with the provision in relation thereto to be essential to the validity of the proceeding, it is to be regarded as directory merely. Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory." Sutherland Statutory Construction (Lewis' 2nd Ed.), Volume 2, page 1116.
Applying these rules of construction to the statute in question it is clear that the provision mentioned is directory rather than mandatory, and that even if mandatory there has been a substantial compliance with the provision. Consequently this contention of the plaintiff is without merit.
None of the contentions of the plaintiff being meritorious we therefore find on the issues joined for the defendant, at the costs of plaintiff, and a decree will be entered accordingly.
Decree accordingly.
KLINGER, P.J., and CROW, J., concur.