Grooms v. Adams Co. Commissioners

The plaintiff, William Grooms, as a taxpayer of Adams county, brought his action against the board of county commissioners and other county officers, seeking to enjoin those officers from making any expenditures from the county treasury by way of compensation to the owners, or otherwise expending funds, in establishing a new road in Adams county. The proceedings were had under Section 6860 et seq., of the General Code. The claim of the plaintiff was that the commissioners had not complied with Section 6864 by giving the publication required by that section of the time and place of the view and hearing upon the petition. The case was heard in the common pleas, and an appeal taken from the decree of that court.

The case has been heard anew in this court, where it appears that the notice given by the commissioners was in substantial compliance with the statute so far as the contents thereof are concerned, except that the time of said hearing was printed as April 1, 1928, when the actual date of such hearing was April 1, 1929. It further appears that the notice was published in but one newspaper of general circulation in Adams county, whereas it is claimed by the plaintiff that publication was required in two newspapers of opposite politics.

The petition upon which the commissioners acted was dated November 17, 1928, and was filed with the commissioners on November 28, 1928, all of which appears in the notice of publication. The published notice then concludes:

"The county commissioners will on March 9, 1929, at 9:00 o'clock A.M. view said road.

"Also fix April 1st, 1928, at 2:00 o'clock P.M. as date for final hearing thereon at the office of said board in West Union, Ohio.

"Dated at West Union, Ohio, this 18th day of February, 1929.

"By order of the Board of County Commissioners of Adams County, Ohio."

Every date in the notice was correct save only that the date April 1, 1928, should have read April 1, 1929. It is so manifest that the date for final hearing was in fact meant for the 1st day of April, 1929, that it is not conceivable that any one was in any way misled by the mere typographical error thus disclosed.

The other question is whether or not this particular sort of notice must be published in more than one newspaper. At the time Section 6864 was enacted, there were on the statutes many provisions relating to legal publications; some requiring publication in two, and others publication in a single newspaper. The Legislature by this section provided for publication in "a newspaper published and having general circulation in the county where the proposed improvement is located."

By its plain terms, therefore, the requirements of this section are met when publication in a single newspaper is made. It is claimed, however, that Section 6252 requires publication in two newspapers notwithstanding the particular section under which the commissioners were acting requires publication in one only. We would be slow to adopt the view that a later statute dealing with a question in a particular and definite way is modified by an earlier section dealing with the same subject-matter in a general way. We are not confronted, however, with that question, because Section 6252 provides only that certain particular kinds of notices shall be published in two newspapers. They are election proclamations, orders fixing the times of holding court, rates of taxation, bridge and pike notices and notices to contractors. These are specifically covered by the statute, and require publication in two newspapers. The notice required by Section 6864 is not among those enumerated. Section 6252 further provides generally that such other advertisements of general interest to the taxpayers as the officers may deem proper shall be published in two newspapers, but the officers themselves are the judges of what notices are of such interest as shall require publication in two newspapers. Not only are the officials named to be the judges of what advertisements shall be published, but such advertisements must be of "general interest to taxpayers." That means of great or extensive interest affecting a majority, a great number. Platt v. Craig, 66 Ohio St. 75, 63 N.E. 594. There is no proof that the improvement in question costing less than $1,000 was one of general interest to the taxpayers affected by it, and for the foregoing reasons Section 6252 no way changes the provision of Section 6864, as applied to the advertisement involved here.

We have been cited to the case of State, ex rel. Compton, v.Board of County Commrs., 18 Ohio App. 462, as sustaining the view of the plaintiff herein. In that case the court was dealing with the second sentence of Section 6252. That sentence in mandatory language requires publication in two newspapers in counties having cities of 8,000 inhabitants or more. In theCompton case the court was concerned only with that sentence of Section 6252, and its holding has reference only to the peremptory language of that sentence. The views reached by us are not necessarily in conflict with the opinion in the Comptoncase.

We do not find it necessary to go into the question of whether or not the plaintiff is estopped from prosecuting this injunction. We are content to say that the action of the commissioners was entirely within the law.

Decree for defendants.

MAUCK, J., concurs.

BLOSSER, J., not participating.