96 Ohio St. 44
117 N.E. 6

The State, ex rel. The A. BENTLEY & SONS CO.,
PIERCE, Auditor

No. 15437

Supreme Court of Ohio

March 6, 1917


This is an action for a writ of mandamus against Joseph Melroy Pierce, as auditor of Clark county, to require him to pay an order of the board of trustees, appointed by the governor of Ohio to erect a memorial building in said county, under the provisions of Section 3059 et seq., General Code.

On October 3, 1912, the commissioners of Clark County, Ohio, passed a resolution pursuant to Section 3059, General Code, stating that in their opinion it was desirable to erect, furnish and maintain a memorial building, and to expend for such purpose a sum of money not to exceed $250,000; thereupon the governor appointed five citizens as a board of trustees, who organized agreeably to law and submitted to the people at the next election the question of issuing $250,000 of bonds of the county; and the same having been approved such issue was sold by the commissioners at the request of the memorial building trustees, the proceeds of said sale being $250,000. The memorial fund thus arising was placed by the county treasurer in a depositary, earning thereby the sum of $18,000.

The board of trustees secured a site, employed an architect who perfected plans and specifications, and on or about September 5, 1914, entered into a written contract with the relator for the complete construction of the memorial building at an aggregate cost of $205,090.13.

In the acquisition of the site, the employment of the architect, and other incidental matters, said board of trustees incurred expenses aggregating about $57,000, the total aggregate expended or contracted to be expended in connection with said project being $262,000, all but about $15,000 of which has been paid.

The question is whether the interest or increment arising from the deposit of said funds by the county treasurer may be added to the amount which the memorial trustees are authorized to expend; or, to the contrary, are the memorial trustees limited to the $250,000 provided in the original resolution of the commissioners of Clark County?

  1. Where the statute places an express limitation upon the amount of money to be expended on any public work by any officer, or board, the contractual power of such officer, or board, is fixed by such statutory limit.

  2. Where the statute delegates power to any administrative board, such as a board of county commissioners, to fix the limit of such public expenditure, and such board so fixes a limit in language free from doubt, there is no right in any court to construe said language, and the power of such administrative board is thereby limited to the amount so fixed.

  3. In case of doubt as to the right of any administrative board to expend public moneys under a legislative grant, such doubt must be resolved in favor of the public and against the grant of power.

  4. The earnings of all county moneys under the depositary law generally belong to the county unless the statute expressly provides otherwise.


Mr. J. E. Bowman and Mr. J. Warren Keifer, for plaintiff.

Mr. Charles E. Ballard, for defendant.




Section 18 of the Bill of Rights of the Ohio Constitution of 1802 contained the very wholesome admonition "That a frequent recurrence to the fundamental principles of civil government, is absolutely necessary to preserve the blessings of liberty."

It is as true to-day as it was 115 years ago.

The Federal Constitution is clearly a document of delegated powers. True, it was not such in its original form, but by virtue of the 10th Amendment it became such beyond all doubt. This amendment reads:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The same basic doctrine is announced in most of the state constitutions, particularly the Ohio Constitution of 1851, which is still, in this respect, in force. Section 20 of the Bill of Rights reads:

"This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people."

This same doctrine of delegated power with reference to constitutions very generally prevails when the legislature assumes to confer, within its constitutional grant, certain powers upon various political subdivisions of the state or upon some officer, board or commission of such subdivision.

Such grant of power, by virtue of a statute, may be either express or implied, but the limitation put upon the implied power is that it is only such as may be reasonably necessary to make the express power effective. In short, the implied power is only incidental or ancillary to an express power, and, if there be no express grant, it follows, as a matter of course, that there can be no implied grant.

In construing such grant of power, particularly administrative power through and by a legislative body, the rules are well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it. It is one of the reserved powers that the legislative body no doubt had, but failed to delegate to the administrative board or body in question.

Now, how stands the case at bar? The whole question pivots on the construction of the statute.

Section 3059, General Code, provides that when the memorial building is to be erected the county commissioners in their resolutions shall state: "That in their opinion it is desirable to erect * * * a memorial building * * * and to expend for such purpose an amount to be named by them not to exceed $250,000 in any one instance."

Section 3061, General Code, provides, further, that upon the appointment of the memorial association by the governor of Ohio, such association, through its board of trustees, shall "direct the submission to popular vote at the next regular county election of the question of the issue of bonds in the amount so named in the original resolution," etc.

Section 3062, General Code, provides that the commissioners shall issue the bonds of the county "not to exceed the total sum determined upon in the original resolution of the commissioners."

Section 3063, General Code, provides that the fund arising from the sale of the bonds shall be placed in the county treasury to the credit of a fund to be known as "the memorial building fund." The last part of that section reads: "If upon the completion of the memorial building an unexpended balance of the fund remains in the county treasury, it shall be placed and kept to the credit of such sinking fund."

All these sections taken together are clear, consistent and convincing, demonstrating that the legislature intended the original resolution by the board of county commissioners to be the basis and limitation upon all future proceedings as to a memorial building — that the voters of the county should know the maximum to be expended so that they might vote intelligently upon the bond issue.

The soundness of such a policy cannot be doubted; neither can the meaning of the simple, straightforward words of the statute. Two hundred and fifty thousand dollars was the largest sum that could be expended by the memorial association through its trustees.

This statute being simple and straightforward in its meaning, there is neither room nor right for judicial construction. The statute speaks for itself.

This was clearly the county's money and subject to the general depositary law. The statutes clearly provide what shall be done with the county moneys and the earnings upon the same.

Writ denied.