Gorman v. Heuck (41 Ohio App. 453, 1931)

Ross, P. J.

This case comes into this court on appeal from the court of common pleas of Hamilton county.

The petition drawn and filed by the prosecuting attorney, at the request of a taxpayer, alleges that the county commissioners of Hamilton county, the county treasurer, and the county auditor, have entered into certain contracts with the Cincinnati Bureau of Governmental Research, a corporation under the Ohio laws not for profit; that such contracts are not authorized by law; that, having been partially performed, the auditor, unless restrained, will honor vouchers drawn in favor of such bureau. The petition prays that he may be enjoined from allowing the payment of such vouchers.

The copies of the contracts attached to the petition contain provisions by which the bureau agrees to furnish the county commissioners expert services in the study of certain county institutions, and to render a report thereof to the satisfaction of such county commissioners. The consideration to be paid is $2,500.

In the case of the treasurer, the bureau agrees to furnish expert services and render a report in the study of “Preparation and Installation of a System of Billing and Collecting Taxes.” The consideration is $2,000.

In the case of the auditor, the bureau agrees to furnish expert services and render a report upon the subject “Method and Procedures in Re-appraisal, Budget Procedures to Control Expenditures.” The consideration to be paid is $2,000.

The answer of the auditor admits the execution of the contracts and a partial performance thereunder, and states that he will honor vouchers drawn in favor of the bureau unless restrained from so doing,- and denies the illegality of the contracts.

The evidence submitted shows the execution of the contracts as alleged, and partial reports of the bureau made to the respective officers are in evidenee. It is also admitted by the county officers involved that their technical knowledge and experience is limited, and that they are not experts, and in each case the work of the bureau is asserted to be of great value to them.

The following excerpts from the evidence are pertinent :

Samuel Ach, county commissioner: “Q. In addition to that you were called upon as one of the commissioners to visit the public hospitals of thé county, know their sanitary condition, condition of inmates, and file a complete and full report of the investigation with the prosecutor. I ask you whether you as one of the commissioners are qualified to make such a thorough study of the operation and the administration of the hospitals and make a complete inspection of the public hospitals under your contract? A. I am not.”

Charles H. Urban, county commissioner:

‘ ‘ Q. As a lawyer and layman are you qualified to pass intelligently upon the economical and efficiency of the operation and administration of the County Hospital and County Home? A. Not as a lawyer. I would say, Mr. Taft, that the commissioners are all qualified to a certain extent, but their qualifications are decidedly limited. •

“Q. In what way? A. By the fact they are not experts in those lines.

“Q. Would that apply also to the detail of the administration and care of the county buildings? A. Yes, sir.”

Clifford Brown, county commissioner:

“Q. Are you qualified as a layman to pass upon the efficiency and detail of the operation of the county buildings? A. Not as an expert, no.

“Q. And also are you qualified to pass upon the most economical and expeditious methods of administration of those county buildings? A. Not as an expert.

“Q. And what therefore was the purpose of this contract in that respect? A. To inform us as to the best manner of economically and efficiently conducting those buildings.”

Edgar Friedlander, county treasurer:

“Q. You would not say you could not frame a receipt to comply with this statute, you were not competent to frame a receipt? A. I certainly could frame a receipt, but I doubt if I could frame one as correct as we will now have. * * *

“Q. With all the background of your experience are you qualified to pass upon exactly what is the most favorable method for arriving at an economical and expeditious result in this? A. Certainly not.”

Robert Heuck, county auditor:

“Q. Were you qualified to pass intelligently upon just which method you wanted to adopt without some kind of expert advice? A. Absolutely not. # #

“Q. Would it have been possible for you to carry out your duty to have the first report by July and your final report by November without expert advice in this particular regard? A. I suppose we would have gotten it out, but I don’t think it would have been as good an appraisal and I don’t think it would have been as well done, but it certainly expedited matters for me and gives me confidence in my method.”

“ Q. In your judgment did it save any money for you? A. I think it ■will.”

It is stated by counsel for the defendant that the evidence submitted by the defendant “was solely for the purpose of explaining in detail the subjects of the contracts which otherwise might have been ambiguous.”

It is further contended, and there is evidence to the effect, that the service rendered by the bureau to the county commissioners will give them “the benefit of expert information and experience which they did not possess as to the most economical and efficient method of conducting and co-ordinating county hospitals among themselves and with the City Hospital;” that it will produce very substantial savings through better administration and coordination of the offices; that it will benefit them in large scale buying, and be of great service in permitting intelligent inspection of the institutions under their supervision.

As to the treasurer, there is evidence that the installation of the systems recommended will produce a joint net saving in the offices of the auditor and treasurer in the sum of $88,000 the first year, of which $15,000 is in the office of the treasurer.

There can be no doubt that the services would be, and have already been, of great value to the officers involved. This is not seriously disputed. The sole question presented, however, is, Under what enabling provision of the statutes can expenditures out of public funds for such services be justified in law?

Article X, Section 5 of the Ohio Constitution, provides: “No money- shall be drawn from any county or township treasury, except by authority of law.”

If, then, there be no statutory authority permitting such expenditures out of public funds, all that is contended and introduced in evidence can be but strong impelling matter for the consideration of the Legislature, but unavailing to a court limited to approval of drafts upon the treasury authorized by the statute laws of this state.

It is conceded that the statutes nowhere authorize a contract for an advisory report, but it is claimed that the power to secure advice and suggestions from others than deputies or employees, and to cause the public to pay for same, is inherent in the officers, and implied from and incident to the powers conferred upon them by law. As we apply this contention to the question presented, it means that the officers, having admitted that they have not the required technical knowledge to efficiently and economically administer the offices to which they have been elected, have the inherent or implied power to secure the necessary expert advice from outside sources, and cause the consideration for such advice and suggestions to be paid for out of public funds.

The Legislature has seen fit in other similar matters to pass specific enabling acts, which would seem to be unnecessary if such wide power lies inherently in these officers and is incidental to their granted powers.

General Code, Section 2412, gives the county commissioners power to employ legal counsel for an office when legal advice is required.

General Code, Section 2410, gives them power to employ superintendents, watchmen, janitors, and other employees deemed necessary for the care and custody of county property under their control.

It was thought necessary to pass an act to empower the county commissioners to purchase motor vehicles. Section 2412-1, General Code.

Section 2471 gives the commissioners the power to employ a special surveyor. And Section 2494, General Code, authorizes them to allow and pay for experts and expert witnesses necessary in the prosecution of criminals.

It would seem that these special enabling acts would be unnecessary if the commissioners had the general implied powers suggested.

General Code, Section 2419, a section relied upon somewhat to support the claimed powers of the commissioners in the instant case, reads as follows: “A court house, jail, public comfort station, offices for county officers and an infirmary shall be provided by the commissioners when in their judgment they or any of them are needed. Such buildings and offices shall be of such style, dimensions and expense as the commissioners determine. They shall also provide all the equipment, stationery and postage, as the county commissioners may deem necessary for the proper and convenient conduct of such offices, and sttch facilities as will result in expeditious and economical administration of the said county offices. They shall provide all rooms, fire and burglar-proof vaults and safes and other means of security in the office of the county treasurer, necessary for the protection of public moneys and property therein. ’ ’

The words italicized are claimed to be sufficiently broad in meaning to authorize the contracts. As amended, this section constituted House Bill No. 524, which in 108 Ohio Laws, Part 1, 387, appears as “An Act to amend Section 2419 of the General Code, authorizing the county commissioners to expend funds for the establishment, equipment and maintenance of public offices.”

The word “facilities” is used in its ordinary meaning, has no peculiar or special meaning, and is to be taken as related to the other subject-matter of the act — equipment, supplies, buildings, and offices.

The intent of the Legislature was to authorize the county commissioners to provide such physical aids and help as might assist the officers in efficiently conducting their offices; that they should be furnished with suitable space, proper equipment, necessary supplies; but that they should be also' furnished with expert advice, by outside contracting specialists, cannot be injected within the connotation of the word “facilities,” even when giving it a broad meaning. The statute evidently refers to the offices and equipment; not to assistance to the officers themselves.

Especially are we assured of our position in this matter, as full authority is given all officers to employ clerks and deputies to aid and assist them, and it is reasonable to suppose that, if they themselves do not possess the technical knowledge necessary to economically and efficiently administer their duties, they will secure among such employees and deputies technical experts, with sufficient ability to furnish the required advice and suggestions. Such consideration must have been before the Legislature.

A section relied upon as empowering the auditor to enter into the contracts with the bureau is Section 5548, General Code. This section provides, among other things, that: “The county auditor upon the approval of the tax commission of Ohio is empowered to appoint and employ such experts, deputies and clerks, or other employees, as he may deem necessary to the performance of such duties as such assessor * *

This section refers to the duties of the county auditor in the assessment of real estate, and the reappraisal thereof. The evidence shows that the tax commission of Ohio approved the appointment only of such experts as should be deputized by the auditor. As the bureau was a corporation, it could not be, and was not, deputized, and hence there was not such compliance with this section of the General Code- as would authorize the contracts with .the bureau upon the premise that it was an expert capable of employment.

Many other sections of the General Code are called to our attention, but in none of these is there direct or implied authority for the use of public funds for the purposes contemplated in the contracts under consideration; nor are we able to find any authority in the statute laws of this state giving express authority for the proposed expenditures, or authority to perform any duty to which is attached as a necessary incidental requirement or implied privilege the right to expend public funds for personal expert advice as to how to conduct such offices, even though such advice is used for the benefit of the public.

It is obvious that there can be no reflection of any kind upon a county officer because he does not happen to be a technical expert, completely capable of dealing with the manifold and intricate duties now incident to the proper, efficient, and economical administration of his office. However, it is just as manifest that the absence of such experience and technical knowledge cannot of itself, and exclusive of legislative authority, furnish the basis for authority for an implied power to draw upon public funds for the purpose of paying for advice which will permit such officer to efficiently perform his duties.

The prayer of the petition to enjoin the county auditor from honoring or allowing vouchers based upon services rendered under the contracts in question, or from causing the same to be paid out of public funds, is granted.

A decree may be presented accordingly.

Decree accordingly.

Hamilton and Cushing, JJ., concur.