State ex rel. Finegold v. Lorain Co. Comm.

PARDEE, J.

“In 1925 the General Assembly of this state adopted the so-called Kreuger act, being Secs. 5649-9 to 5649-9d, inclusive, of the General Code, which law became effective July 21, 1925, and is found in 101 O. L. 335.

It is claimed by the attorneys for the plaintiff and admitted by the attorneys for the defendant that the proceedings taken by the county commissioners and the other public authorities of said county precedent to the submission of said bond issue to the people of Lorain county, did not comply with the requirements of the so-called Kreuger act.

It being admitted that the procedure adopted by the public authorities for the issuance of the bonds in question, did not comply in any particular with the foregoing requirements of the Kreuger act, it admittedly follows that if the provisions of the Kreuger act apply, then the bonds in question cannot be legally issued.

Sec. 5649-9d GC., is a part of the Kreuger act, and in said section it is provided that—

“* * * The provisions of sections 2 (GC. Sec. 5649-9a), 3 (Sec. 5649-9b), 4 (Sec. 5649-9c) and 5 (Sec. 5649-9d) of this act shall supersede the various provisions of law governing the issue of bonds of any bond-issuing authority, the passage of resolutions, the publication of notices, the holding of elections, the form of the ballot, the percentage of vote required, the time of holding elections and the levy of taxes, in so far as they are inconsistent herewith.”

When the legislature declared in plain language that the procedure set forth in the Kreuger law should supersede the procedure inconsistent therewith provided by other laws for the issuance of bonds, it in effect repealed such other laws — not by implication but by express enactment; and hence, the question of whether the law under which the commissioners acted was repealed by implication, is not presented for determination.

“Yet, where a statute contemplates in express terms that its enactments will repeal earlier acts, by their inconsistency with them, the chief argument or objection against repeal by implication is removed, and the earlier acts may be more readily treated as repealed.” Endlich on the Interpretation of Statutes, p. 275, Sec. 206. See also 1 Lewis’ Sutherland Statutory Construction (2nd ed.) pp. 458-9, Sec. 246.

The county commissioners having only such authority in this matter as is given to them by the general asembly, and in order to make their acts valid and binding, they are required to comply with all of the conditions precedent prescribed by the general assembly; and it being admitted in this case that they failed to comply with the provisions of the Kreuger act, the procedure of which law we hold governs them in making this improvement, they have no right to issue and sell the bonds in question, and it therefore becomes our duty to sustain the prayer of the petition and enjoin the defendant from selling said bonds.”

(Washburn, PJ., and Funk, J., concur.)