STATE Ex SCHAEFER v. ZANGERLE Et

This case is heard in this court on appeal after determination in the court of common pleas.

The plaintiff, State of Ohio, ex rel. Henry G. Schaefer, appearing in the capacity of a taxpayer, seeks to enjoin the auditor of Cuyahoga county and the board of county commissioners from doing certain acts in connection with the building of approaches to the Lorain Street bridge.

The petition alleges that on or about the 8th day of September, 1927, the defendant county commissioners adopted a resolution which declared the necessity for a bond issue for the building of the Lorain-Central bridge, and necessary approaches thereto; that on or about the 9th day of September, 1927, the board adopted a resolution submitting the proposed bond issue to the electors of the county at the November election; that the question of issuing bonds was submitted to the electors of Cuyahoga county in the following language, to wit:

"Lorain-Central Bridge Bond Issue.

"Shall bonds be issued by the County of Cuyahoga, Ohio, for the purpose of paying the cost and expenses of erecting a bridge with the necessary approaches thereto, from a point at or near Lorain Avenue, a County road, across the valley of the Cuyahoga River to a point at or near Central Avenue in the City of Cleveland, in the sum of Seven Million Dollars ($7,000,000.00), and a levy of taxes be made outside of the 15 mill limitation, estimated by the County Auditor to average .1479 mills for a maximum period of 25 years, to pay the principal and interest on said bonds.

"Shall bonds be issued by the County of Cuyahoga, Ohio, for the purpose of paying the cost and expenses of establishing an extension of Lorain Avenue, a County road, from a point at or near Lorain Avenue crossing the valley of the Cuyahoga River to a point at or near Central Avenue in the City of Cleveland, in the sum of One Million Dollars ($1,000,000.00) and a levy of taxes be made outside of the 15 mill limitation, estimated by the County Auditor to average .0415 mills for a maximum period of 10 years to pay the principal and interest on said bonds."

At the November, 1927, election, the said bond issues were approved by the electors of Cuyahoga county by overwhelming vote. The defendants the county commissioners proceeded with the necessary steps for the erection of the Lorain-Central bridge. By a change of name, the Lorain-Central bridge is now known and will hereinafter be referred to as the Lorain-Carnegie bridge.

The county commissioners proceeded to acquire lands generally lying in the valley of the Cuyahoga river, and thereby acquired a right of way connecting Lorain avenue, a county road, with Central avenue, a county road, and, in the acquisition of such lands and the extending of said Lorain avenue, the defendant commissioners expended the entire proceeds of the million dollar bond issue heretofore referred to, and no more funds are available for the acquisition of lands for right of way purposes, as the authorized fund for that purpose has been exhausted.

Pursuant to the acquisition of the land and the extension of Lorain avenue, the defendant commissioners proceeded with the necessary steps for the erection of a bridge across the valley of the Cuyahoga river from a point at or near Lorain avenue to a point at or near Central avenue. All the necessary steps in connection with the letting of the contracts and performance of the work were taken by the commissioners, and the bridge structure was erected, and is now substantially completed, at a total cost far below the original estimates of the commissioners for the work, and as a result thereof the commissioners have available funds, the exact amount of which is unknown to the plaintiff, but upon information and belief is alleged to be in the neighborhood of $800,000.

Although the original plans and all subsequent plans for the bridge showed that certain street widenings and street improvements on the west end of the bridge, in the vicinity of West Twenty-Fourth street, Gehring avenue, and Lorain avenue, were to be made for the alleged convenient use of said bridge, the electors of Cuyahoga county did not intend that such street widenings and street improvements should be paid for out of the proceeds of the $7,000,000 bond issue for the bridge and its necessary approaches.

Plaintiff alleges in his petition that, notwithstanding the illegality of the contemplated use of the proceeds of such bonds, the defendant commissioners have proceeded, and intend to proceed, with the making of the street widenings and street improvements shown on Exhibit A; that on or about April 22, 1932, the commissioners adopted a resolution declaring the necessity of widening Lorain avenue and improving its intersection with West Twenty-Fourth street and Gehring avenue as an alleged approach to the westerly end of the Lorain-Carnegie bridge; that all the necessary steps were taken by said commissioners and on or about May 27, 1932, said commissioners adopted a resolution wherein they made final awards for properties to be taken for said alleged westerly approach, and determined to proceed therewith; that in the last-named resolution the commissioners requested the defendant Zangerle, as county auditor, "to affix his signature and seal to such additional Lorain-Central Bridge Series ``D' Bond Anticipation Notes to enable the delivery thereof, as are required to defray the cost and expense of this improvement, including the awards for compensation and damages for property appropriated therefor," at a cost and expense of approximately $250,000; that said defendant Zangerle has signified his intention of complying with said request; that he now threatens so to do, and, unless enjoined, he will proceed to comply with said request of said commissioners.

The petition alleges that such action on the part of the defendants is illegal, and will result in a misapplication of the county funds and irreparable damage to the county and to all of its taxpayers.

The prayer of the petition asks, in substance, that the use of the proposed $7,000,000 bond issue, or any part thereof, for the purpose now contemplated by the several defendants, be enjoined, and that it be declared a misapplication of county funds. It specifically asks that the board of county commissioners be permanently enjoined from expending any of the proceeds of said $7,000,000 bond issue for such purposes; that the defendant John A. Zangerle, county auditor, be permanently enjoined from signing and sealing said bond anticipation notes series D; that the making of the improvements contemplated for the alleged westerly approach to said bridge as a necessary approach, out of the proceeds of the $7,000,000 bond issue, be permanently enjoined as a misapplication of public funds and as an illegal and unauthorized expenditure.

The court found it profitable to quote the major part of the allegations of the plaintiff's petition, because the language reciting the history of the erection of the Lorain-Carnegie bridge, and which led to the present controversy, is so clearly set forth as to decisively present the issues which this court is called upon to determine.

It will be seen from a perusal of the plaintiff's petition that the bond issue authorized by the vote of the people of Cleveland was "for the purpose of paying the cost and expenses of erecting a bridge with the necessary approaches thereto, from a point at or near Lorain Avenue, a county road, across the valley of the Cuyahoga River to a point at or near Central Avenue * * *."

Two bond issues were submitted to and approved by the people of Cleveland, one for $7,000,000 for the purpose of paying the cost and expense of erecting the bridge, with the necessary approaches thereto, and the other, in the sum of $1,000,000, for the purpose of paying the cost and expenses of establishing an extension of Lorain avenue, a county road, from a point at or near Lorain avenue across the valley of the Cuyahoga river to a point at or near Central avenue in the city of Cleveland. The proceeds of the second bond issue were entirely exhausted in the acquisition of lands lying generally in the valley of Cuyahoga river, whereby a right of way was acquired connecting Lorain avenue with Central avenue. The proceeds of the first bond issue, in the sum of $7,000,000, were not all exhausted, and it is conceded that there remains in that fund a balance of about $800,000. The county commissioners propose to issue bonds in the sum of approximately $250,000, to be taken out of the balance of $800,000, for the purpose of building the necessary approaches to Lorain-Carnegie bridge, in the manner described in the plaintiff's petition.

The gist of the plaintiff's contention is to the effect that no part of the proceeds of the $7,000,000 bond issue can be used for any such purpose, as the contemplated improvements as now planned are not in fact approaches. The language used for the submission of the $7,000,000 bond issue is broader than the interpretation sought to be given it by the complaining taxpayer. It states "* * * for the purpose of paying the cost and expenses of erecting a bridge with the necessary approaches thereto * * *."

It must follow that, if the proposed expenditure complained of comes within the meaning of the phrase "necessary approaches thereto," the defendants would be authorized to proceed with such expenditures out of the proceeds of the $7,000,000 bond issue.

We are indebted to counsel for furnishing this court considerable aid as to the definition of the term "necessary approaches." Webster's New International Dictionary defines an approach as "a way, passage, or avenue by which a place or building can be approached; an access."

Mr. Wilbur Watson, member of the firm who are the consulting engineers on both the Lorain-Carnegie and Main avenue bridges, offered a definition from an engineering standpoint as follows: "The approaches to a bridge comprise the necessary traffic arteries and adjustment thereof, to develop its maximum traffic capacity."

In the case of In Matter of City of New York, 174 N.Y. 26,66 N.E. 584, the court held that the term "approaches," as used in Chapter 986 of the Laws of 1895, authorizing the city of New York to construct an approach from the Harlem river, and to acquire title to the land necessary for the construction of the bridge and its approaches, applied not only to the physical structures immediately connected with the roadway of the bridge, but to those contiguous and converging streets and avenues through and over which the public are to gain access to the bridge.

In the case of City of Chicago v. Pittsburgh, Ft. W. C. Ry.Co., 247 Ill. 319, 93 N.E. 307, 139 Am. St. Rep., 329; Id.,248 Ill. 100, 93 N.E. 309, the court discussed the question of what constitutes the bridge and what constitutes an approach, and, as the language used in the opinion is very helpful in the matter now before us, we shall quote a part of it. The court said, at page 322 of 247 Ill., 93 N.E. 308: "Under the common law, and generally under the statutes in this country, a bridge includes the abutments and such approaches as will make it accessible and convenient for public travel. * * * Ordinarily an ``approach,' as that term is used, is considered a part of the viaduct. * * * What is a viaduct proper and what is an approach, where one begins and the other ends, and what is a street or highway as distinguished from the approach, are more questions of fact than of law."

We are content to adopt the definition of approaches offered by counsel as follows: "The approaches to a bridge comprise the traffic arteries leading to the ends of the bridge proper and such adjustment of the alignments and grades of said arteries in the immediate vicinity of such ends as is necessary to afford the maximum convenience of access and render available to the public the entire capacity of the bridge proper."

The language used in the submission of the $7,000,000 bond issue to the people of Cleveland, which contained the phrase "of erecting a bridge with the necessary approaches thereto," was not accidental. There was a definite purpose in the use of said language. A bridge without adequate approaches, such as to assure the fullest and most convenient use of such bridge, would be of little avail and would almost defeat the purpose of its erection. Those who are by law directed and empowered to carry out the will of the people, as set forth in the language used in the submission of bond issues, are under a mandatory duty not only to build the bridge, but also to build the necessary approaches thereto in order to afford the fullest use of the monumental structure now known as the Lorain-Carnegie bridge. A failure so to do on the part of the officers, whose duty it is to carry out the will of the people, would defeat in the main the principal purpose of the erection of the Lorain-Carnegie bridge, as it must be apparent that the bridge without the necessary approaches would be a useless structure.

In order to determine what are good and "sufficient approaches or ways," the county commissioners have to consider the nature and character of the bridge proper, the general territory to be served by such bridge, and the existing arteries in the immediate vicinity of the bridge. All the contending parties are agreed that the officers now sought to be enjoined are acting in good faith, and that it is merely a question of want of power to make the expenditures. Therefore, the county commissioners having studied the situation in good faith, as it is now conceded, and having determined that certain improvements are necessary as approaches to the bridge in order to provide the maximum use thereof, this court cannot substitute its judgment for the judgment of the commissioners.

The question as to what are necessary approaches is a question of fact. The evidence presented to this court consists of the testimony of Mr. Wilbur Watson, famous engineer, plus certain maps and blueprints. No other evidence was offered on the subject of what are necessary approaches. Therefore the evidence is conclusive that the improvements which the commissioners regard as necessary approaches, and of which the plaintiff is complaining, are in fact necessary approaches.

We conclude, therefore, that the defendants are not only empowered to proceed with the improvements sought to be enjoined, but also that they are under a mandatory duty to proceed with the same, as a failure to construct the necessary approaches would result in a woeful waste of public funds which were expended in the erection of the bridge proper. The court is of the opinion that this duty should be exercised with all reasonable promptness, to the best interests of a unified Cleveland.

The petition for injunction will be denied and a decree entered in favor of the defendants.

Decree for defendants.

WEYGANDT and VICKERY, JJ., concur.