Money Received by a County from a Street Car Company for a Franchise to Cross a Bridge Theretofore Built Under the Flood Emergency Act (103 Ohio Laws, 141), May be Placed to the Credit of the Flood Emergency Fund or to the Road Repair Fund, According to the Nature of the Improvement of the Road, by the County Commissioners in the Exercise of Their Sound Discretion. No. 956-(Opinion Dated October 21, 1915.) Hon. Perry Smith, Prosecuting Attorney, Zanesville, Ohio. Dear Sir:-I have your letter under date of October 14, which is as follows: "I am sending you a copy of a letter that I received from the county commissioners today in reference to $20,000 that we compelled the two street car companies to pay in order to go over the new Sixth street bridge. I advised the commissioners in this instance and also the auditor that this money should be paid into the sinking fund, of the emergency fund so as to take care of the interest and bonds that were issued to build the bridge. "Am I right in my interpretation? The commissioners think I am wrong. An early reply to this will be greatly appreciated." The letter of the commissioners of Muskingum county, above referred to, reads as follows: "Zanesville, Ohio, October 13, 1915. "Perry Smith, Prosecuting Attorney, Zanesville, Ohio. "Dear Sir:-We wish to write you asking that you take the matter of transferring the $10,000.00 from the Southeastern Light and Power Company and the $10,000.00 from the Ohio Electric Company received for the franchise for crossing the new Sixth street bridge to the emergency sinking fund to the attorney general for a final decision in the matter. "The people and property holders on each side of the south river road desire that this road be improved and the only way said road can be improved is from money in the emergency fund. Unless this money from the two railroad companies returns back to the emergency fund, these road repairs cannot be made, as there is no other money available for this purpose. "Your ruling as per letter is that this money should go to the emergency sinking fund, but the commissioners desire that we get the attorney general's ruling in this matter so that we may explain the matter to these property holders why this repair is not made. "Please take this matter up with the attorney general and get his decision at your earliest convenience and oblige, yours respectfully, Muskingum county commissioners, by Fred C. Werner, clerk." In building the bridge referred to in your inquiry the commissioners of Muskingum county evidently proceeded under the socalled Flood Emergency Act as found in 103 O. L., 141-147. I do not deem it necessary to quote the various provisions of said act vesting in said county commissioners ample authority to permanently repair, re-construct and replace public property or public ways injured or destroyed by floods occurring in March and April of the year 1913, and to provide the necessary funds for such purpose. It is sufficient to observe that if said county commissioners complied with the requirements of said act in issuing bonds for the purpose of establishing a flood emergency fund out of which to construct said bridge, and at the time such indebtedness was incurred, provided for levying and collecting annually by taxation a sufficient amount to pay the interest on said bonds and to provide a sinking fund for their final redemption at maturity, as required by the provisions of Section 6 of said act, the emergency sinking fund, thus created, should be sufficient to pay the interest and to retire said bonds as the same shall become due. In the event of a deficiency in said emergency sinking fund, Section 6 of said act provides that, * * * * * "When in any year, through miscalculation or inadvertance the amount of the tax originally certified to the county auditor, as herein provided, is insufficient to provide for the payment of the interest and the maintenance of the sinking fund as required by this section, such commissioners (county commissioners) shall compute and ascertain the necessary amount and shall certify same to the county auditor, who shall compute and ascertain the rate of levy necessary to provide therefor, instead of the rate necessary to provide for the amount originally certified, and place the same upon the duplicate of the proper taxing district for such year.' From the facts submitted it appears that after the bridge in question was constructed, the commissioners of your county granted a franchise to the Southeastern Light & Power Company, according to the terms of which said company, in consideration of the payment to said county commissioners of the sum of $10,000, was given the right to lay its tracks on said bridge and to run its street cars thereon as soon as said bridge was completed, and that at or about the same time a similar franchise was granted by said county commissioners to the Ohio Electric Company, on the same terms and conditions and for the same purpose. If said county commissioners had entered into an agreement with said companies prior to the time of issuing the bonds for the construction of said bridge, according to the terms of which each of said companies would have had to pay the sum of $10,000 in consideration of the granting of franchises to said companies to use said bridge for the above mentioned purposes, when the same should be constructed, the money so paid by said companies could have been placed in the county treasury to the credit of the flood emergency fund and used as a part of the cost of building said bridge. However, said plan was not adopted by said commissioners and you inquire whether, as a matter of law, said sum of $20,000 should now be paid into said emergency sinking fund. While considerations of sound public policy and economic administration might require said commissioners to apply said sum of money to the discharge of said bonded indebtedness, I find no provision of law compelling them to so dispose of said money. I am compelled to conclude that as a matter of law said county commissioners are not required to place said money in the county treasury to the credit of said emergency sinking fund. In the letter of the county commissioners, above quoted, said commissioners state that the people and property holders on each side of the South River Road desire that this road be improved and that the only way said road can be improved is from money in the emergency fund; that unless this money received from the two railroad companies can be placed in the treasury to the credit of the emergency fund said road repairs cannot be made as there is no other money available for this purpose. It must be observed in this connection that the flood emergency fund, as created by the county commissioners under the provisions of the aforesaid flood emergency act, can only be used in so far as permanent improvements made under the provisions of said act are concerned, "for the permanent repair, reconstruction or replacement of public property or public ways destroyed or injured in the manner and at the time described in Section 1 of this act," which section by its terms limits such improvements to public property or public ways which were destroyed or injured by floods occurring in March and April, 1913. Unless the repair of the road in question comes within the meaning of the above provision of Section 3 of said act, the cost and expense of making such repair should properly be paid out of the road repair fund and not out of said flood emergency fund. It remains to be determined, therefore, whether said county. commissioners may, in the exercise of their discretion, place the aforesaid sum of $20,000 in the county treasury to the credit of said flood emergency fund or to the credit of the road repair fund, depending on the nature of the repair work which they desire to make. While it may be argued that, inasmuch as the disposition 'of the money in question is not governed by any provision of the statute, said money should be paid into the general county fund, I find that the right of the county commissioners to determine the fund to the credit of which a sum of money in a case of this kind may be placed is recognized by the Supreme Court in the case of the State ex rel Board of County Commissioners of Marion County vs. Charles L. Allen, County Auditor, 86 O. S., 244. The third branch of the syllabus provides: "Where funds reach a county treasurer, either by gift or otherwise, that belong to no particular fund, or where there is nothing whatever to show in which fund the money belongs, the board of county commissioners has authority to determine and direct the fund to which such moneys shall be credited." From the statement of facts in this case it appears that an unknown person forwarded by mail to the county treasurer of Marion county the sum of $500.00 and requested that said sum be placed in the county treasury. The matter was called to the attention of the county commissioners of said county and that board entered on its journal an order directing the county auditor to certify said sum into the county treasury of said county to the credit of the pike fund of said county. The county auditor refused to do this and an action in mandamus was brought to compel him to comply with the order of the county commissioners so made in reference to this fund. At page 251 the court in its opinion said: "This money is now the property of the county. It should be returned to the particular fund from which it was withdrawn, but it is impossible from the evidence at hand to determine that fund. The suggestion found in the brief of counsel for the auditor that in that case it should pass into the general fund, would appeal very strongly to this court if it had the authority to determine the question, but in the absence of any proof whatever as to the fund from which it was withdrawn, its legal status is the same as if it had never been the property of the county, and never had been withdrawn from its treasury. It is now money belonging to the county, to be expended by the county for any lawful purpose, and that purpose must be determined by the county itself, or by those officers representing the county and authorized to act for it. In Ohio that authority is the board of county commissioners, in whom is vested by law the title to all the property of the county. "It is the duty of this board, and the authority of this board, to determine and direct into which fund this money shall be placed, and, having so determined that question, it becomes the duty of the auditor under Section 2567, General Code, to certify this money into the fund designated by the county commissioners to the credit of that fund, and charge the treasurer accordingly. He has no power or authority whatever to deal with the money of the county, except as directed by law, or by those having lawful authority and discretion to make such orders and directions." I am of the opinion, therefore, that the county commissioners have the right, in the exercise of their sound discretion, to determine that the money, received from the aforesaid companies as a consideration for the franchise rights granted to said companies by said county commissioners, shall be placed in the county treasury to the credit of the flood emergency fund or to the credit of the road repair fund according to the nature of the improvement of the road in question, for the cost and expense of which it is desired that said sum of money shall be applied. County Boards of Education Cannot Borrow Money to Pay for No. 975 (Opinion Dated October 27, 1915.) Dear Sir:-I have your letter under date of October 21, which is as follows: "Our county board of education has asked me to submit to you, for your opinion, the following question: "Has a county board of education authority to borrow money for the purpose of paying for the transportation of pupils to school where the local board has refused both to transport such children and to pay for the same? |