State ex rel. Bader v. City of Cincinnati

SAYLER, J. This action is brought by the State of Ohio on relation of Fred Bader. Henry Korb and John Breen, composing the Board of County Commissioners of Hamilton county, against the City of Cincinnati, August G. Herrmann. George Sterntt, John Washburn and John Prey,composing the Board of City Administration of said city, and the plaintiffs say, that said Herrmann, Prey. Sterritt and Washourn. composing the Board of Ad ministration of said city, are the successors of the Beard of Affairs of said city, and, as such, have full control over and charge of the public streets belonging to said city of Cincinnati, and it is their duty to keep the same in repair; that the plaintiffs, as commissioners of Hamilton county, were authorized by an act of the legislature, passed April 3, 1889, (86 O. L., 580), supplementary roan act entitled “An act for the erection of bridges over Millcreek and the O. tl. & D. R. R. tracks in Hamilton county” passed May 4, 1877, (74 O. L., 503), as amended 77th O. L., 369, 84th O. L.,356,to construct a bridge over the railroad tracks and other railroad property on the eastern side of Mill-creek at Liberty street, in the city of Cincinnati; and to further continue the necessary trestle work on said street, between Garrard avenue and State avenue, such a distance as may be necessary to make proper approaches and connections for said improvement; that Liberty street is a street owned and controlled by the city of Cincinnati, and that said bridge or viaduct and trestle, is an extension of said Liberty street, and was erected and built for the benefit and for the accomodation of public travel over said Liberty street, and is a part of said street or public highway ; and plaintiffs say, that on September 23,1892, the Board of Legislation of the city of Cincinnati,passed a resolution whereby it was resolved, “That the County Commissioners be and they are hereby instructed to turn said viaduct over to the city of Cincinnati,” and that on July 22, 1892, (1893) the Board of County Commissioners adopted a resolution, reciting that the viaduct had been completed in accordance with the acts of the General Assembly, resolved “That the said viaduct be and hereby is turned over to the proper municipal authorities of the city of Oincinnati for its control and maintenance,” and that on September 1, 1894, said county commissioners the second time notified the Board of Administration of the city, that the Liberty street bridge and improvements had been completed and was open for travel, and that they were ready to turn the same over to said board, as the representatives of said city, and requested that they accept the same,but that said request was refused. And plaintiff's say, that “unless the said authorities of the city of Oincinnati 'accept said improvement as requested by plaintiffs, that the same will suffer great damage for want of care and attention,and that plaintiffs have no adequate remedy at law,” Plaintiffs pray that a wiit of mandamus issue, commanding said Board of Administration to forthwith accept and take control and charge of said improvement. The defendants file an answer reciting the acts of the General Assembly referred to in the petition ; that under the acts of May 4, 1877, ,74 O. L., 504;) April 16, 1880, (77 O. L., 369); March 16, 1887, (84 O. L., 356), the county commissioners levied a tax yielding 893,484.54, and that it appearing this sum was not sufficient to pay for the bridge, that in purspance of the act of April 3,1889, (86 O. L., 580), the Board of Affairs of the city issued bonds to the sum of 868,000,and paid the same into the county treasury to the credit of the Millcreek bridgo fund. That the commissioners proceeded to complete the bridge and paid all bills therefor,amounting >n the aggiegate of 8158,293,92,and that of the fund so raised, the sum of 83190.61, remained unexpended which should have been returned to tbo city, but the commissioners have failed to do so. The defendants deny that the bridge is upon one of the public highways of the city, and deny all allegations of the petition not admitted. The plaintiffs reply admitting that the bridge was finished on or about July 24,1893, but aver that there is only the sum of 82.00 remaining to the credit of the Millcreek bridge fund. This appears to be a ease in which 8158,293 were expended by the county and city in the erection of a bridge or viaduct extending [314] from Liberty street to Stats street, and was completed in July, 1893, and which is already in such ruinous condition that it cannot be Used for travel and in which the county and’ city are each trying to impose on the other the burden of repairing and keeping it in repair. F. S. Spiegel, County Solicitor for relators. Frederick Hertenstein, Corporation Counel,for defendants. I think it clear from the admissions and evidence that Liberty street is a street owned and controlled by the city of Cincinnati, and that said bridge or viaduct and trestle work is an extension of said Liberty street, and was erected and built for the benefit and for the accomodation of public travel over said Liberty street, and is a part of said street. Under the statutes recited in the pleadings; the improvements were built by money coming partly from the county and partly from the city; under the act of 1877, the erection of the bridge and the expenditure of the money were under the direction of the Board of Public Works of the city ; and under the subsequent acts they were under the direction of the county commissioners. Under all the acts the appropriation of the property necessary to straighten Millcreek was made by the county commissioners, and by an act of date March 20,1891, (88 O. L.. 726),the county commissioners were authorized to appropriate property to open and widen Liberty street between Wallace street and State avenue, being a continuation of, or for an approach to said improvement. It appears that two strips of ground were conveyed to the county commissioners by deeds in vol. 657, p. 119 and 662, p. 225, of the Hamilton county records, for the purpose of said improvement. A communication of the county solicitor to the commissioners of November 2, 1894, recites that the title to the property (the viaduct) was taken in th9 name of the county. There is, however, nothing in these statutes providing for the ownership of the improvements, or as to the charge and control of the same. Probably, as a consequence of the erection of the bridge being under the direction of the county commissioners after 1880, that after that time and during the time of the erection, the chargo and control of the improvement was in the commissioners. _ It seems to me, therefore, that the resolution passed by the commissioners on November 3, 1394, was only effective in so far as it notified the city authorities that the improvement was completed. It would seem from the pleadings that the resolution of July 22,1892, was passed before the improvement was completed, but at all events it would be of no more effect than the subsequent resolution of November 3, 1894. As the question of the control and charge of the improvement cannot be determined from these special acts, it is necessary to consider the general acts of the state. The'city of Cincinnati has the right to demand and recoive a portion of the bridge fund levied on property within the corporation. Therefore, under secs. 860 and 4938, the commissioners are not required to construct or keep in repair the bridges within the city. By sec. 2640 “The council shall have the care, supervision and control of all public highways, streets * * * and bridges, within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.” It would seem that under this sec. 2640, the care, supervision and control of these improvements are in the city, but if that be so, such duties were imposed on the city on the improvements by reason of the improvement becoming a bridge within the purview of that section, not by reason of any act on the part of the commissioners. That is,the rights and duties were imposed and fixed by law. 1 Handy, 478-9. If the city is derelict in its duty, it may at the suit of a proper party be required to perform its duty urder the statute. But, have the county commissioners any standing in court to call on the city to assume charge and control? If by operation of law the charge and control of the bridge vested in the city authorities under sec. 2640, on the completion of the same, then, as a necessary consequence, the charge and control of the bridge, theretofore existing in the commissioners, ceased to exist, and the commissioners, being by operation of law, relieved of such duties,could hardly be parties beneficially interested on whose information the writ may issue under sec. 6744, Rev. Stat., to require the city to assume charge and control, on its failure to comply with its duty under sec. 2640. The fact that the county expended money in and acquired title to property for the erection of the bridge, would hardly make it a party beneficially interested on whose information the writ may issue to require the city to assume charge and control. The county can derive no benefit from the bridge ; no tolls are provided for. The money was expended in a public improvement, with no purpose of a return. It seems to me that the plaintiffs are not entitled to the relief asked for, and that the petition should be dismissed at the costs of the plaintiffs.