183 N.E. 781
No. 23582Supreme Court of Ohio.
Decided November 30, 1932.
Public contracts — Certificate of director of finance that funds available — Allegations of mandamus petition insufficient — Section 2288-2, General Code — Purchase of land by state conservation department.
In an action of mandamus to compel the director of agriculture and the commissioner of conservation to issue a voucher based on a contract for the purchase of land by the conservation department, the allegation “that the money required to pay for said premises is and was in the treasury of the State of Ohio and not appropriated for any other purpose” is insufficient without the averment in the petition that the director of finance has first certified to that fact pursuant to Section 2288-2, General Code.
IN MANDAMUS.
This is an original action in mandamus, filed in this court, asking the issuance of a writ commanding the director of agriculture and the conservation commissioner to execute and deliver to the relators and to one Anna Pocock a voucher in the sum of $10,000, to cover the purchase price of a certain tract of 12.97 acres, including the “Blue Hole,” the land being situated in Townsend township of Sandusky county, Ohio, which tract of land, it is alleged in the petition, was purchased from the relators and from said Anna Pocock by the conservation council prior to the 28th day of February, 1931, for the use and benefit of the state of Ohio.
While the petition does not disclose the same, it was admitted by counsel in argument that the property in question was for the purposes of a fish hatchery.
The petition further avers that on February 28, 1931, the conservation council allotted and appropriated the sum of $10,000 for the purchase of said premises; that an abstract of title was furnished to the
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state, which was approved by the legal department, and a deed of general warranty to said premises executed and delivered, in accordance with the contract for the sale of the premises, and that the same is still in possession of the state; that in 1931, exact date unknown, a voucher for $10,000 was drawn by the council of conservation and presented to the director of agriculture and to the commissioner of conservation, but that said officers have failed and refused to execute and deliver said voucher to the relators and Anna Pocock.
The relators say that the money required to pay for said premises is and was in the treasury of the state of Ohio, and not appropriated for any other purpose, and a writ of mandamus is asked against the director of agriculture and the commissioner of conservation to execute and deliver the voucher in question to the relators and said Anna Pocock.
The respondents have filed a general demurrer.
Messrs. Culbert Culbert, for relators.
Mr. Gilbert Bettman, attorney general, and Mr. William J. Ford, for respondents.
DAY, J.
This petition fails to show that the director of finance first certified that there was a balance in the appropriation out of which was to be paid the obligation involving the expenditure of public money in the contract relied on by the relators.
It is true that there is an averment “that the money required to pay for said premises is and was in the treasury of the state of Ohio and not appropriated for any other purpose.” This does not meet the requirements of Section 2288-2, General Code, which provides:
“It shall be unlawful for any officer, board or commission of the state to enter into any contract, agreement or obligation involving the expenditure of
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money, or pass any resolution or order for the expenditure of money, unless the director of finance shall first certify that there is a balance in the appropriation pursuant to which such obligation is required to be paid, not otherwise obligated to pay precedent obligations.”
We hold this to be mandatory. State v. Kuhner King, Partners, 107 Ohio St. 406, 140 N.E. 344. It is the ministerial duty of the director of finance to make the required certificate. State, ex Eel. S. Monroe Son Co., v Baker, Dir. of Finance, 112 Ohio St. 356, 147 N.E. 501.
It not appearing on the face of the petition that Section 2288-2, General Code, has been complied with, it becomes our duty to sustain the demurrer upon that ground. Other grounds of the demurrer were argued by counsel, but it is sufficient to say that they are defensive in character and might be pleaded in an answer. The demurrer to the petition will be sustained.
Demurrer sustained.
MARSHALL, C.J., JONES, MATTHIAS, ALLEN, KINKADE and STEPHENSON, JJ., concur.