And be it further resolved, that resolution No. 9590, adopted by the board of control, be and the same is hereby repealed.

J. J. SHEA, Secretary.

ONE DIRECT HEAT ROTARY DRYER FOR THE GARBAGE DISPOSAL PLANT

Sealed proposals will be received at the office of the commissioner of purchases and supplies, room 219 city hall, until 12:00 o'clock noon January 27th, 1922, for one direct heat rotary dryer for use at the Cleveland garbage disposal plant, Willow, Ohio, and will be opened and read in the council chamber immediately thereafter.

Specifications and bidding blank may be obtained at the office of the director of public service, room 314 city hall. No proposal will be entertained unless made on the blank furnished by the director of public service and delivered at the office of the commissioner of purchases and supplies previous to 12:00 o'clock noon on the day specified.

at the office of the commissioner of purchases and supplies, room 219 city hall until 12:00 o'clock, noon, February 3rd, 1922, and will be opened in council chamber immediately thereafter.

Specifications and bidding blanks may be had on application at department of public welfare, city hall.

Jan. 18, 25, 1922.

COAL

Sealed proposals endorsed "Proposals for coal for the Garbage Reduction Plant, Willow, Ohio," will be received at the office of the commissioner of purchases and supplies, room 219 city hall, until 12:00 o'clock noon official Cleveland time, February 3rd, 1922, and will be opened immediately thereafter in the council chamber.

Jan. 18, 25, 1922.

BIDS FOR MECHANICAL EQUIPMENT FOR THE EMPLOYEE'S HOME

BUILDING CITY HOSPITAL

Sealed proposals will be received at the office of the commissioner of purchases and supplies, room 219 city hall, until 12:00 o'clock noon, February 2nd, 1922, and will be opened and read immediately thereafter in the council chamber for providing and installing mechanical equipment for the city hospital on Scranton rd.

Each bid must be made in accordance with the drawings and specifications, copy of which may be obtained at the office of the chief architect, 604 city hall. Our drawings and specifications loaned to the bidders for compiling their bids must be returned to the office of the architect before the bids are opened.

No proposals will be entertained unless made on the blanks furnished by the chief architect and delivered to the office of the commissioner of purchases and supplies, previous to 12:00 o'clock noon on the date specified.

The city reserves the right to reject any or all bids.

A certified check or proposal bond for 5 per cent of the amount of the bid must accompany each proposal.

Jan. 18, 25, 1922.

GASOLINE

Sealed proposals will be received at the office of the commissisoner of purchases and supplies, room 219 city hall, until 12:00 o'clock noon, February 3rd. 1922, for approximately ten thousand (10,000) gallons of gasoline for the garbage disposal division of the department of public service, and will be opened and read in the council chamber immediately thereafter.

Specifications and bidding blank may be obtained at the office of the director of public service. room 314 city hall.

No proposal will be entertained unless made on the blank furnished by the director of public service and delivered at the office of the commissioner of purchases and supplies previous to 12:00 o'clock noon on the day specified.

The city reserves the right to reject any Jan. 18, 25, 1922.

or all bids.

CAST IRON PIPE FOR THE GARBAGE
DISPOSAL PLANT, WILLOW,
OHIO

Sealed proposals will be received at the office of the commisssioner of purchaser and supplies, room 219 city hall, until 12:00 o'clock noon, February 3rd, 1922, for cast iron pipe for the garbage disposal plant, Willow, Ohio, and will be opened and read in the council chamber immediately thereafter.

No

Specification and bidding blank may be obtained at the office of the director of public service. room 314 city hall. proposal will be entertained unless made on the blank furnished by the director of public service and delivered at the office of the commissioner of purchases and supplies previous to 12:00 o'clock noon on the day specified.

The city reserves the right to reject any

or all bids.

Jan. 18. 25, 1922.

PAVING

Sealed proposals will be received at the office of the commissioner of purchases and supplies, room 219 city hall, until 12:00 o'clock noon. February 1, 1922, and will be opened in the council chamber immediately thereafter for the grading, draining. curbing, paving and improving of the following named thoroughfares, between the points named:

Aetna rd. S. E., from E. L. of E. 78th st. to E. L. of E. 82nd st.

Amesbury ave. N. E., from E. L. Richardson allot, to N. L. Sharp allot.

Aspinwall ave. N. E., from E. 152nd st. to E. 154th st.

Calvin ct. S. W., from W. 17th st. to W. 21st pl.

Colonial et. S. E., from Woodhill rd. S. E. to Frank ave. S. E.

Forest ct. S. E., from E. 33rd st. to E. 34th st.

Fruit ave. S. W., from W. 9th st. to W. 10th st.

Helena ave. N. E., from E. 105th st. to Parkwood dr. N. Ε.

Joan ave. S. W., from W. 105th st. to Lorain ave.

Natchez ave. S. W., from W. 30th st. to W. 35th st.

Oakwood ave. S. E., from E. 71st st. to E. 72nd st.

Paul ave. S. E., from Murray Hill rd. S. E. to Random rd. S. E.

Paxton rd. N. E., from Barrington ave. N. E. to Arlington ave. N. E.

Rosewood ave. S. E., from Turney rd. S. E. to Warner rd. S. E.

Shale ave. S. E., from Woodhill rd. S. E. to E. 110th st.

Stewart ave. N. E., from E. 90th st. to E. 93rd st.

Tampa ave. S. W., from W. 30th st. to W. 35th st.

Vineyard ave. S. E., from Warner rd. S. E. to Turney rd. S. E.

E. 67th st., from Worley ave. S. E. to Collier ave. S. E.

E. 114th st., from Woodland ave. S. E. to Hulda ave. S. E.

E. 124th st., from 715' S. of Woodland ave. to Buckingham ave. S. E.

E. 140th st., from Ashwood ave. N. E. to Abell ave. N. E.

E. 160th st., from Holmes ave. N. E.

II. If the answer to the foregoing question is in the negative, then, conceding that charter sections 41 and 42 define a method for preparing and passing an annual appropriation ordinance, does council derive its power to pass appropriation ordinances solely from charter section 42, and do charter sections 41 and 42 SO limit that power that it can be exercised in no other manner?

III. As charter section 39 authorizes "ordinances appropriating money" to be passed as emergency mesaures:

(a) Does this section (if the powers therein granted be invoked) nullify or modify the provisions of charter scetions 41 and 42, and, if at all, to what extent?

(b) Does charter section 39, taken in connection with the general power of council to make appropriations, authorize the passage of appropriation ordinances:

(1) Without preparation of any

budget;

CITY COUNCIL

MONDAY, JAN. 16, 1922

(2) Without detailed itemization of the uses to which the money is appropriated;

(3) Without recitation in the ordinance of particular moneys sought to be appropriated.

I. Sections 3784 G. C. etc., and particularly section 3797, enacted prior to the state constitutional amendment of 1912 and the adoption of the charter of the city of Cleveland, provide for the passage by councils of municipal corporations of appropriation ordinances semi-annually. Charter sections 41 and 42 of the city of Cleveland provide for the doing of the same thing in an entirely different way, and are in direct conflict. The material portions of the state constitutional amendment of 1912 are as follows:

"Article 18-Section 3. Municipalities shall have authority to exercise all power of local self-government, and to adopt and enforce within their limits, such local police, sanitary and other similar regulations as are not in conflict with other laws."

"Section 7. Any municipality may frame and adopt or amend a charter for its government, and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government." In State vs. Lynch, 88 O. S. 71, the court promulgated the following syllabus:

"The provisions of the eighteenth article of the constitution as amended in September, 1912, continue in force the general laws for the government of cities and villages until the fifteenth day of November following, and thereafter until changed in one of the three modes following: (1) By the enactment of general laws for their amendment, (2) By additional laws to be ratified by the electors of the municipality to be affected thereby, (3) By the adoption of a charter by the electors of a municipality in the mode pointed out in the article."

This means, in effect, that the city of Cleveland, having adopted a charter, might thereby repeal acts of the general assembly of the state in so far as they related to this city, provided that the procedure laid down under the charter came within the term "all powers of local selfgovernment" as used in article 18, section 3, of the constitution.

88

In FitzGerald vs. Cleveland, O. S. 339, the sections of the constitution above quoted are discussed at length, and the court in this case held that it was proper for the city to provide a different method for nomination of candidates than that prescribed by state law, holding that the phrase "all powers of local selfgovernment" include power not only to provide a form of government, but also to make provisions as to how its functions should be carried out. This case also holds that the language in article 18, section 3, "not in conflict with general laws." is a limitation only upon the power of the municipality to adopt "local police, sanitary and other similar regulations"; and does not in any way limit the "authority to exercise all powers of local self-government." The same principle has been announced and followed in succeeding cases (see Green vs. Civil Service Commissioners, 90 O. S. 252; State

vs. George, 92 O. S. 344; Billings vs. Railway, 92 O. S. 478; Goebel vs. Railway, 17 O. N. P. N. S. 337, in which case Judge Vickery, in the opinion, discusses at some Inegth the foregoing cases.) I am therefore of the opinion that, in view of the home rule provisions of the charter founded upon constitutional amendment, the city of Cleveland is not bound to make semi-annual appropriation ordinances, but content itself with following charter sections 41 and 42, with such further powers of appropriation as shall hereinafter be pointed out.

may

II. Charter section 27 vests in the council, except as reserved to the people by the charter, the legislative power of the city. This power includes the power to appropriate money (see 3784 G. C.). As both state law and the charter empower the council to levy taxes, hence, even impliedly, if there were no express provision either of statute or of city charter, the council is authorized to appropriate the money derived from such levy to specific uses. And, indeed, both the statute (G. C. 3797) and the charter (sections 42 and 45), which treat of this subject, omit using language empowering the council to make appropriation of funds, and, proceeding upon the theory that council has that power, make it mandatory that the council shall use it; for both the statute and the charter sections state that council "shall appropriate," and do not merely say that council can or may do so.

I am therefore of the opinion that charter section 42 is merely declaratory of an underlying authority vested in council to pass appropriations, and that it, taken together with charter section 41, merely provide a particular method for passing an appropriation ordinance, the use of which method is made mandatory (but is not the exclusive method, as I shall hereinafter point out).

The ordinance contemplated by charter sections 41 and 42 has commonly come to be known as the annual appropriation ordinance. In connection with preparing such ordinance for passage, the mayor's estimate, the distribution of printed copies thereof, public hearings upon the ordinance, and its publication for fifteen days prior to its passage, and all other detailed requisites provided for in the two sections named, must undoubtedly be complied with.

* *

III. It is clear from the foregoing that there is no mandatory provision compelling the passage of the annual appropriation ordinance not later than the first Monday in January. Charter section 45 provides, "No money shall be drawn from the treasury of the city, nor shall any obligation for the expenditure of money be incurred, except pursuant to appropriations made by the council; In addition, the auditor of the county is prevented from certifying to the county treasurer that any funds belonging to the city are available for its uses, except and unless there has been an appropriation by council (G. C. 3.795). Further, charter section 122 prevents the making of any contract, agreement or other obligation involving the expenditure of money unless the director of finance

first certifies that the money required for such expenditure is in the treasury, and in order for such tax money to be in the treasury, it must first have been appropriated. It is therefore perfectly clear that, while the law empowered the council solely to make appropriations, and jealously safeguarded that right to the council, it just as rigidly imposed upon the council the duty of exercising that power,

an

Now the law cannot be said to have provided for a vain thing, and it cannot be said to have required of any administrative officer of the city that he commit unlawful act. Consequently, if the affairs of the city are to be conducted prior to the going into effect of the annual appropriation ordinance, it must be that a way has been provided for the passage of appropriation ordinances other than the annual appropriation ordinance. This way is provided under charter section 39, providing that "ordinances appropriating money may be passed as emergency measures." As early as 1876 the supreme court of Ohio, construing an earlier and analagous statute to section 3806 G. C., after which charter section 122 has been patterned, declared that mandamus would not lie against the city treasurer to compel the payment of salary to a public official if the council had not appropriated the amount for that purpose (State vs. Hoffman, 25 O. S. 328); and the supreme court has never departed from that doctrine, the latest approvals of the Hoffman case being found in Emmett vs. City of Elyria, 74 O. S. 195, at page 162, and Pittinger vs. City of Wellsville, 75 O. S. 508, at page 522.

(A) In my opinion, the permission to pass appropriation ordinances as emergency measures attaches equally either to the annual appropriation ordinance. so-called, or to any other appropriation ordinance anticipatory of or subsequent and supplemental to such annual appropriation ordinance, and the emergency clause, if and when applied to the annual appropriation ordinance, does not relieve the council of the necessity of strictly following the provisions of charter sections 41 and 42, except that such ordinance, when so passed, shall immediately take effect.

(B) Coming to consider appropriation ordinances other than the socalled annual appropriation ordinance, I am of the opinion that, whether or not they be emergency ordinances:

(1) No preparation of any budget is necessary in connection therewith, charter section 41 applying solely to the so-called annual appropriation ordinance.

L

solely to the so-called annual appropriation ordinance,

(3) It has been questioned whether or not the instant ordinance, which your committee is considering, is illegal in form for lack of recitation of the particular moneys sought to be appropriated. As a general practice, I agree that the theory of appropriating money necessarily involves a designtion of the particular moneys sought to be appropriated; but, as to this ordinance. the first one introduced in the fiscal year, and therefore prior to a definite appropriating of any moneys due the city in the year 1922, I am of the opinion that the omission of such a clause is not a fatal defect, for the following reasons:

*

*

*

Although section 3797 G. C. is superseded by the charter, in so far as it makes necessary semi-annual appropriations; yet, the portion of it not in conflict with any charter provision still remains as binding law upon the city of Cleveland, and that section provides that the council shall make appropriations "from the moneys known to be in the treasuary or estimated to come into it from the collection of taxes and all other sources of revenue." As a matter of law, certain tax settlements are now due the city of Cleveland, and a recitation in the ordinance, itself, to that effect would not alter that fact. Indeed, the approval of the director of finance of the city of Cleveland to the proposed ordinance, now under consideration, may technically be taken as constructive certification that moneys are in the treasury or due this city from tax settlements or other sources to cover the amount sought to be appropriated; and, most determinative of all, neither the setting up of a budget nor the certification of the county auditor of funds due the city nor the prior making of the tax settlement constitute the vital and essential protection provided for by the charter against unlawful expenditure of money subsequent to its appropriation, for section 122 of the charter provides that safeguard. It could be urged with some force that, subsequent to the initial appropriation sought by this ordinance, particular funds would have to be designated, but, until the time comes to consider any such subsequent ordinance, the instant ordinance proceeds against any and all funds available in the year 1922.

In addition to the naked reasoning of the question presented, I desire to add the following:

The statement was made in the council session of January ninth that my construction of the law with regard to the necessity of passing an appropriation ordinance at this time was novel and unprecedented. There are on file in this office copies of all written opinions rendered by city solicitors or directors of law to council or its committees, covering a period of more than twenty years. Upon investigation I find that as early as 1904, Newton D. Baker, then city solicitor, advised the then city auditor as follows:

"I have given section 43 of the municipal code a very careful examination with a view to determining whether or not the council can lawfully pass the semi-annual appropriation ordinances in the months of December and June instead of waiting until the months of January and July.

The difficulty, as you know better than anybody else, has heretofore

priation ordinances have not been passed until the months of January and July, the fiscal half years closing on the 31st day of December and the 30th day of June. There was thus a gap of three or four weeks during which the city was disabled from making any payments out of its treasury by reason either of the pendency or immaturity of the appropriation ordinance. The hardship entailed by this situation is really very great. Contractors who rely upon the city's prompt payments to meet their payrolls, are greatly inconvenienced, while city employes, a very large number of whom live upon modest incomes, and have monthly payments of great importance to make, are driven to resort to expensive expedients to provide themselves the necessaries of life until payments are resumed by the city."

I find no written opinion from any former law officer of this city advising council, or any of its committees, to a contrary effect.

The question might now be raised whether, when the council passes the pending emergency appropriation ordinance, there will come to exist lawful authority for the meeting of the payroll for the first half of January, 1922. The supreme court sufficiently disposed of that question in the Emmett case, 74 O. S., hereinbefore referred to, and held that, even though a municipality might not in such case have legally contracted the debt, its obligation is such that the court will not enjoin payment therefor. It may be true that, relying upon this doctrine, the city has, in previous years, been content to defer the passage of any appropriation ordinance until the socalled annual appropriation ordinance was passed, dating it back to January first of the calendar year; but it is certainly true that, in following such a practice, council lays itself open to the criticism of placing no restraint upon the administrative officers of the city in the interim between January first of the calendar year and the passage of such an ordinance.

It cannot reasonably be argued that a negative vote should be cast on the pending ordinance, for the reason that insufficient budget leaves the legislator in doubt as to the necessity for the appropriation, when, in the absence of any appropriation whatever, the same legislator would be inviting the administrative officers of the city, in the necessity of conducting the city affairs, not only to violate the law, but to expend money without any restriction, and then, later, come to council and ask it to ratify such unlawful and, perhaps, unjustifiedly extravagant acts; and there therefore arises, on the part of the administrative officers, in the absence of appropriation, the choice between violating the law or being unable to conduct the city's affairs.

My conclusions may be briefly summarized as follows:

First: No contracts, legally binding, canbe made by this city beginning with and after January first of each calendar year, until and unless there shall first have been passed by council an ordinance appropriating money therefor.

Second: Charter sections 41 and 42 make it compulsory upon council to pass a so-called annual appropriation ordinance in accordance with their provisions, except that an emergency clause may be attached to such ordinance, and these charter sections supersede the state statute calling for semi-annual ap