Syllabus.

HEFFNER V. THE CITY OF TOLEDO.

City ordinance-Must contain but one object-Clearly expressed in its_title-Issuing of bonds for street improvement—Statutory requirements—Sections 1536-213, 2835, 1536-285 and 1536-287, Revised Statutes-Section 53, Municipal Code-Municipal law.

I. The statutory requirement that "No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title," was intended to prevent the uniting in one ordinance of diverse subjects or measures and effecting its passage by uniting in its support all those in favor of any, and to prevent the adoption of ordinances by the votes of councilmen ignorant of their contents.

2. Whether an ordinance is violative of the statutory requirement that "No by-law' or ordinance shall contain more than one subject, which shall be clearly expressed in its title," is to be determined not by its form, but in the light of the mischief the statute was intended to prevent.

3. An ordinance to provide for the issuing of bonds to pay the city's part of the cost of thirty-two street and sewer improvements, entitled: “An ordinance to provide for the issue of general street improvement bonds of the City of Toledo, State of Ohio, to pay said city's part of the cost and expense of improving sundry streets and alleys by paving, repaving, grading and macadamizing, and by constructing sewers therein and to pay the said city's part of the cost and expense of constructing such sewers," is not in conflict with the statutory requirement that "No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title." 4. A city is not authorized to issue bonds to provide a fund from which to pay its part of the cost of improvements that may from time to time be made, but it may, under Section 53 of the Municipal Code of 1902, Section 1536-213, Revised Statutes, or under Section 2835, Revised Statutes, issue bonds to pay its part of the cost of specific improvements.

5. The bonds authorized by Section 53 of the Municipal Code of 1902 can not be provided for by resolution or ordinance until after the passage of an ordinance providing for the improve

ment.

6. Under Section 2835, Revised Statutes, the council of the city may by a resolution or ordinance, passed by the affirmative vote

Statement of the Case.

of not less than two-thirds of the members elected or appointed thereto, provide for the issuing of bonds to pay the city's part of the cost of a specific improvement before the passage of a resolution declaring the necessity for the improvement.

7. The requirement of Section 1536-285, Revised Statutes, that bonds issued for a street improvement shall have the name of the street written or printed upon them, and the requirement. of Section 1536-287, Revised Statutes, that bonds issued to pay for sewers in a district shall have written or printed upon them the name and number of the district, do not apply to bonds issued to pay the city's part of the cost of such improvements.

(No. 10380-Decided January 22, 1907.)

ERROR to the Circuit Court of Lucas County.

In August, 1906, the city of Toledo passed an ordinance entitled: "An ordinance to provide for the issue of general street improvement bonds of the City of Toledo, State of Ohio, to pay said city's part of the cost and expense of improving sundry streets and alleys by paving, repaving, grading and macadamizing, and by constructing sewers therein and to pay the said city's part of the cost and expense of constructing such sewers. To enjoin the issuing of the bonds provided for by the ordinance an action was commenced in the court of common pleas. On appeal the circuit court sustained a general demurrer to and dismissed the petition, and error is prosecuted in this court.

It appears from the ordinance that it provided for issuing $75,000 of bonds payable in twenty years to pay the city's part of the cost of thirtytwo improvements. The ordinance specifies the different improvements and the city's part of the cost of each; eight are for the construction of

Argument for Plaintiff in Error.

sewers and twenty-four for the improvement of streets, of which nineteen are to be paved, three to be repaved and two are to be graded; and the city's part of the cost ranges in round numbers from $5 for a sewer to $26,000 for repaving a

street.

It was averred in the petition that as to three of the street improvements no resolution and no ordinance had been passed, and that as to eleven of the street improvements no ordinance had been passed.

Mr. B. A. Hayes, for plaintiff in error.

The city council, by passing a single ordinance authorizing the issue of bonds to raise funds to pay the city's part of thirty-two different improvements, violated the policy of the law as expressed in paragraph four of the syllabus in the case of Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 374.

This case, like the case at bar, was one brought by a taxpayer to enjoin the issue and sale of municipal bonds. In that case there was a combination of two measures only: the purchase of water works, and the erection of water works; here we have a combination of thirty-two improvements. This legislation is sixteen times as vicious.

Plaintiff also claims that it is the policy of the law as to legislation regarding the making of improvements by municipal corporations, that different improvements shall not be combined in any of the various steps or stages of legislation thereon. Campbell v. City of Cincinnati, 49 Ohio St., 463.

Argument for Plaintiff in Error.

But there is the same objection to a combination of several improvements in one ordinance as there is to a combination of several improvements in several ordinances to be passed on a single roll-call.

That a separate series of bonds should be issued for each improvement seems to be contemplated by the requirements of Sections 2706 and 2708, Revised Statutes.

Surely it is not a compliance with these sections to print upon each of the seventy-five bonds here in question, the names of the twenty-four streets to be improved, and the numbers of the eight sewers to be constructed. The language of the sections refers to a single street or single sewer; apparently the expectation was that funds for each street or sewer should be raised with a separate issue of bonds.

The ordinance authorizing the issue of the bonds in question was prematurely passed.

From paragraph five of the petition it appears that as to fourteen of the streets for which the bonds were to be issued, no ordinance determining to proceed with the improvement had been passed, and as to three of them, no resolution had been passed. It further appears from the statement of facts that over fifty-two thousand dollars of the total issue of seventy-five thousand dollars is to be issued for these fourteen street improvements.

Can bonds be issued for an improvement which council has not decided to make?

Perhaps the council may never decide to improve one or two or more of these fourteen streets, and a vote in council to issue bonds to improve twenty-four streets and construct eight sewers

Argument for Plaintiff in Error.

is not a vote to issue bonds for the improvement of twenty-two only, or any other number except twenty-four. 57 Ohio St., 374.

These bonds are issued under Section 53 of the Municipal Code (Bates', 1536-213, 97 O. L., 126), the latter part of which reads: "Provided that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation's part of any improvement as aforesaid," therefore they can be issued only "as aforesaid"; the words "as aforesaid" plainly refer to the sentence in the middle of section beginning:

"In all municipalities, the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which part shall not be less than one-fiftieth of all such cost and expenses; and in addition thereto, the corporation shall pay the cost of intersections."

But special assessments are never levied except in cases where ordinances determining to improve have been passed. Section 55 of the Municipal Code (97 O. L., 122).

Nor can it be known what amount of bonds to issue until after the board of public service has determined of what material the improvement shall be made; but this board can not determine that fact until the council has passed the improvement ordinance containing "a statement of the general nature of the improvement and the character of the materials which may be bid upon therefor."

Therefore under this Section 55 (Bates', 1536215) no bonds can be issued to pay the city's part