Cullen v. Mitchell ( 1927 )

PER CURIAM.

This action was commenced in the Common Pleas Court by plaintiff herein. He sought an injunction against the defendants, enjoining them from awarding and making any contract or contracts, under certain advertising by the Director of Public Service of the City of Hamilton, for apparatus, material and labor, and from approving, executing, and performing said contracts.

A demurrer to the petition was sustained by the Common Pleas, and error is prosecuted to this court.

The petition states that on Jan. 7, 1920, Council pretended to pass a resolution, declaring it necessary to issue and sell bonds of the city for the purpose of extending, enlarging, improving and repairing the Electric Light Works of the city, and that the amount of the bond issue was greater than the limit prescribed by law for an issuance of bonds without a vote of the people.

The petition then alleges that notice of the time and place of holding said election was never made as provided by law, and that any notice pretended to have been given was improper and insufficient in law; that the election was held, resulting in a vote in favor of the bond issue; that the bonds were sold and that $525,000.00 of the proceeds of the sale are now in the hands of the City Treasurer.

It is clear that the allegations do not state a cause of action for this purpose. These allegations might be proper were they attacking the legality of the bonds or the bond issue.

Were the plaintiffs attacking the bond issue, the petition would state no cause of action, since 4315 GC. provides that such action must be commenced within one year from the date of the bonds. The bonds were sold on or about June 1, 1920, and this action was not commenced until September 15, 1926.

The rest of the petition simply avers bad business on the part of the corporation. It requires no citation of authority on the proposition that the courts will not interfere with the discretion of Council and the City authorities in the business management of the City.

Judgment affirmed.

(Hamilton, PJ., Cushing and Buchwalter, JJ., concur.)