State ex rel. Sentinel Co. v. Wood Co.

23 Ohio C.C. Dec. 93, 14 Ohio C.C. (n.s.) 531

• Court: Wood Circuit Court
• Decided: October 28, 1910
• Status: Published

Opinions

KINKADE, J. (Orally.)

In the court below this was an action brought by the Sentinel Company as a taxpayer of Wood county after the statutory requirement (Gen. Code 2922) for requesting the prosecuting attorney of the county to bring the action, had been complied with, to restrain the county commissioners and the county auditor from entering into a contract under Gen. Code 2508 to print the county commissioner’s report in a paper known as'“The Weekly Beacon,” published at North Baltimore.

The • ground for the injunction set up in the petition is that the Weekly Beacon is not a paper of general circulation in Wood county. That is the only ground set up in the petition for this injunction, and it is said that because it is not a paper of general circulation in Wood county, that, therefore, the county commissioners and county auditor are unauthorized (as of course they would be if that is so) in making a contract with Mr. Wilkinson, the proprietor of-the Weekly Beacon, to publish this report in that paper.

\ The position taken by the Sentinel Company is denied by Mr. Wilkinson. In the court of common pleas a temporary injunction was graided restraining the completion of the contract. A motion was made to dissolve that injunction, the motion overruled and the injunction continued in force until the final hearing in the court of' common pleas, and it is stated by counsel, but not shown in the papers here though undoubtedly a fact, that the case passed on, to final hearing in the court of common pleas and the injunction was made perpetual.

An appeal was taken to this court from the order of the court of common pleas refusing to dissolve the temporary injunction, and the question presented here is on a motion to dissolve this injunction, and the case is also on its merits here.

Several grounds are presented by the defendants raising questions of procedure in this case. It is said that the only, proceeding that could be brought would be one in mandamus.

It is not admitted that such action may have been brought and maintained, neither is it contended by defendant that it could have been maintained at all, but it is said that if the matter could have been interfered with in any way, it must have been by mandamus, not by injunction. We think that is not the case. We are unanimously of the opinion that the proceedings were correct in form. We call attention to the case of Schloenbach v. State, 53 Ohio St. 345 [41 N. E. Rep. 441]. The opinion of the court found on page 346 recognizes the correctness of the practice pursued in this case and if any authority was necessary to show the correctness of the procedure here we think this particular decision of the Supreme Court covers that question.

We see no question in this case -we have in controversy at all except the question as to whether the evidence in this case shows that the Weekly Beacon published at North Baltimore at the time this contract was attempted to be entered into, was a paper of general circulation in Wood county as provided by statute — a question of fact, which the court of common pleas held that it was not, the paper having, as shown by the evidence some eight or nine hundred of circulation, going to many of the townships in Wood county in small numbers, it is true, and no affirmative showing that it went to five of these townships of the county — that papers went to these townships and may have been delivered in the townships we think the record fairly shows, but it is not shown affirmatively in the record that it had a circulation in every township in the county. It is shown that it had a circulation in fifteen of the twenty townships, of a limited circulation.

It is set up in the petition that the county commissioners advertised for bids for this work, but states that there was no requirement that they should advertise for bids. It is stated in the petition that the contract about to be let will involve an expenditure of about $50, and it is stated in argument that if the printing were allowed under the legal rates to the Sentinel it. would amount to something like $350. 'It does not occur to us that the amount involved cuts any figure in the case either with reference to the Sentinel or Weekly Beacon — the sole question in issue in the case being, is this a paper of general circulation in Wood county with which the county commissioners may make this contract and comply -v^ith the' statute. After examining the case fully it is the judgment of a majority of the eourf that it was a paper of general circulation in Wood county, and that being true, the motion to dissolve the injunction will be granted, and the petition ’of the Sentinel Company will be dismissed.

Wildman, J., concurs:

Affirmed, no op., State v. Sochman, 84 O. S. 447.