State Ex Rel. Hartung v. City of Springfield

12 N.E.2d 482, 133 Ohio St. 162, 133 Ohio St. (N.S.) 162, 10 Ohio Op. 222, 1938 Ohio LEXIS 436

• Court: Ohio Supreme Court
• Decided: January 12, 1938
• Docket: 26462
• Status: Published

Opinion

By the Court.

After this' court sustained a demurrer to two defenses of the answer (132 Ohio St., 590, 9 N. E. [2d], 675), the respondents upon leave filed an amended answer which merely pleads that the amount of money required to comply with the order issued by the Director of Health is far in excess of the. amount of bonds which may be issued without a vote of the electors and within the constitutional and statutory tax and debt limitations, “and that the only way the city can comply with said order is first, by submitting the question of a bond issue and tax levy to pay same to the electors of the city of Springfield, or by issuing bonds secured by a mortgage on the water works system of said city.” The respondents pray that the petition be dismissed. The relator filed a demurrer “on the ground that on its face such amended answer is insufficient in law and does not state facts sufficient in law to constitute a defense.”

Such an answer, pleading only possible alternative means of raising funds to comply with an order of the státe Department of Health, none of which has been invoked, does not state a defense.

The duty is' imposed upon respondents by Section 1259, General Code, to take all steps necessary to secure funds. State, ex rel. Southard, Dir. of Health, v. City of Van Wert, 126 Ohio St., 78, 184 N. E., 12.

The demurrer to the amended answer of respondents is sustained and, respondents not desiring to plead further, a peremptory writ is allowed.

Writ allowed.

Weygandt, C. J., Matthias, Day, Williams, Myers and Gorman, JJ., concur. Zimmerman, J., not participating.