The State ex rel. Waldick, Law Dir., Appellee, v. Williams, Safety/Service Dir.,


Appellant.


[Cite as State ex rel. Waldick v. Williams (1995),   Ohio St.3d     .]


Mandamus to compel city of Delphos Safety Service Director to execute a

      waterline engineering contract authorized by an ordinance passed

      by city council -- Writ granted, when.

      (No. 95-1551 -- Submitted December 5, 1995 -- Decided December 14,


1995.)


      Appeal from the Court of Appeals for Van Wert County, No. 15-95-6.


      On March 27, 1995, the Delphos City Council passed Ordinance No. 1995-


15, which “authorized and directed” appellant, G. Roland Williams, the Delphos


Safety/Service Director, “to enter into an agreement with the Poggemeyer Design


Group, Inc. for the Lima Waterline Project.” The ordinance provided that the


“engineering services shall include all the waterline design and corresponding


improvements required by the City of Delphos to obtain potable water from the


City of Lima; and other such conditions or requirements as deemed to be in the


best interest of the City of Delphos,” with the cost of the agreement not to exceed


$150,000. The ordinance was declared an emergency measure by the city council


“for the purpose of the preservation of the public peace, safety and welfare and
because the City of Delphos must comply with the EPA imposed deadlines for the


improvements to its water system.”


      After Delphos Mayor John E. Sheeter vetoed the ordinance, council voted to


override the veto by the statutorily required two-thirds majority on April 21, 1995.


Shortly thereafter, although he received a copy of the engineering contract,


appellant refused to sign it.   While conceding that there were no procedural


defects relating to the enactment of the ordinance, appellant, in part, based his


refusal to comply with the ordinance on his belief that any action affecting the


municipal water system was an administrative decision to be made by him rather


than by council.


      On June 8, appellee, Juergen A. Waldick, the Delphos Law Director,


instituted this action in the Court of Appeals for Van Wert County for a writ of


mandamus compelling Williams to execute the waterline engineering contract


specified in the ordinance. Following the issuance of an alternative writ and the


submission of evidence and briefs, the court of appeals granted the writ.


      The cause is now before the court upon an appeal as of right. We granted a


motion to expedite consideration of this appeal.


                             ____________________


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      Squire, Sanders & Dempsey, C. Craig Woods and Loren L. Braverman, for


appellee.


      Kagay, Albert & Diehl and David K. Lowe, for appellant.


                             ____________________


      Per Curiam. Appellant asserts that the court of appeals erred in granting the


writ of mandamus. In order to be entitled to a writ of mandamus, Waldick had to


establish a clear legal right to have appellant execute the waterline engineering


agreement noted in the ordinance, a corresponding clear legal duty on the part of


appellant to do so, and the lack of a plain and adequate remedy in the ordinary


course of law. State ex rel. Ms. Parsons Constr., Inc. v. Moyer (1995), 72 Ohio


St.3d 404, 405, 650 N.E.2d 472, 473.


      Appellant does not contend that Waldick possesses an adequate legal


remedy to enforce the ordinance. Instead, appellant claims that Waldick failed to


establish either a clear legal right to execution of the contract or a corresponding


clear legal duty on his part to sign the contract. More specifically, appellant


contends that he has no duty to comply with an unlawful ordinance.


      Appellant asserts in his first and second propositions of law that Ordinance


No. 1995-15 illegally usurps his statutory authority and attempts to control his


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administrative discretion.   In general, enactments of a municipal legislative


authority are presumed valid, and the presumption “continues until bad faith or


abuse of legislative discretion *** is clearly proven, or it is manifest that the


legislative authority has exceeded its powers, or if the legislation bears no


reasonable relation to the public health, safety, welfare, or morals.” 1 Gotherman


& Babbit, Ohio Municipal Law (2 Ed.1992) 108, Section T 7.17, citing Benjamin


v. Columbus (1957), 104 Ohio App. 293, 4 O.O.2d 439, 148 N.E.2d 695, affirmed


(1957), 167 Ohio St. 103, 4 O.O.2d 113, 146 N.E.2d 854.


      “All municipal corporations have the general powers mentioned in Sections


715.01 to 715.67, inclusive, of the Revised Code, and the legislative authority of


such municipal corporations may provide by ordinance or resolution for the


exercise and enforcement of such powers.” R.C. 715.03. Among the general


powers are that cities “may provide for a supply of water” and “prevent the


unnecessary waste of water and the pollution thereof.” R.C. 715.08.


      Appellant relies on R.C. 735.02, which provides that the director of public


service of a municipal corporation shall manage and supervise public works of the


city, including municipal water, “except as otherwise provided by law.” Similarly,


R.C. 743.03 states that the “director of public service shall manage, conduct, and


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control the water works of a municipal corporation, furnish supplies of water,


collect water rents, and appoint any necessary officers and agents.”


      Appellant claims that under R.C. 735.02 and 743.03, the issue of whether he


should execute the waterline engineering contract is within his administrative


discretion. However, R.C. 735.05 provides:


      “The director of public service may make any contract, purchase supplies or


material, or provide labor for any work under the supervision of the department of


public service involving not more than ten thousand dollars. When an expenditure


within the department, other than the compensation of persons, employed therein,


exceeds ten thousand dollars, such expenditure shall first be authorized and


directed by ordinance of the city legislative authority.”


      Where it is necessary for the municipal legislative authority to authorize an


expenditure by the safety-service director in an amount over that provided in R.C.


735.05, “such legislative body has the power to incorporate in the authorizing


ordinance specifications and conditions binding on the administrative agency.”


State ex rel. Huddle v. Evans (1961), 172 Ohio St. 144, 145, 15 O.O.2d 282, 174


N.E.2d 94, 95. In Huddle, we granted a writ of mandamus to compel the safety-


service director to advertise for bids and enter into a contract for the purchase of a


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fire truck according to specifications adopted in an ordinance passed by council.


In so holding, we rejected the safety-service director’s argument that the ordinance


constituted “an encroachment on the executive powers given to [his]


administrative office,” stating that “there is no statute giving to the safety-service


director exclusive power to write the detailed specifications of contracts which


must first be authorized by the legislative branch of the municipality.” Id. at 145,


15 O.O.2d at 282, 174 N.E.2d at 95.


      Similarly, in State ex rel. Leach v. Redick (1959), 168 Ohio St. 543, 7


O.O.2d 422, 157 N.E.2d 106, we granted a writ of mandamus compelling a


director of public service to execute a lease where the city council had enacted an


ordinance authorizing and directing its execution. In rejecting the contention of


the director of public service that the city could not compel him to sign the lease,


the court stated:


      “It seems to us that if council has the legislative authority to authorize the


lease and to authorize the respondent to execute it, it must have the authority to


direct the respondent so to do, and that such direction in no way constitutes an


unlawful interference with an administrative function.




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      “Respondent himself has no power to enter into the contract but is simply


the party to complete the contract properly authorized by council.” Id. at 548-549,


7 O.O.2d at 425, 157 N.E.2d at 110.


      Appellant argues that Huddle and Leach are distinguishable because, unlike


the respondents in those cases, he had acted on the waterline problems prior to


council’s enactment of the ordinance. However, as Waldick aptly notes, nothing


in the applicable statutes vests the authority to enter into contracts in the


governmental branch that first exercises it. As in Leach, and pursuant to the


manifest language of R.C. 735.05, appellant has no power to enter into any


waterline engineering contract exceeding ten thousand dollars, and he is merely


the party to complete the contract authorized by the Delphos City Council.


      Appellant further contends in his second proposition of law that the


ordinance does not require him to execute the contract since it gives him discretion


as to “other such conditions or requirements as deemed to be in the best interest of


the City of Delphos.” However, the ordinance clearly mandates him to “enter into


an agreement with the Poggemeyer Design Group, Inc. for the Lima Waterline


project” and that the agreement shall be for engineering services for the “waterline


design” in order to obtain drinkable water from Lima. The discretion accorded


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appellant by the ordinance was only as to other provisions of the contract, not the


execution of the contract itself.


      Therefore, based on the pertinent statutes and Huddle and Leach, Ordinance


No. 1995-15 does not unlawfully usurp appellant’s administrative discretion to


manage, conduct, and control the water system of Delphos pursuant to R.C. 735.02


and 743.03. Appellant’s first and second propositions of law are meritless.


      Appellant asserts in his third proposition of law that Ordinance No. 1995-15


is invalid because it is not an emergency ordinance.        However, as we have


repeatedly held, “‘[w]here an ordinance, passed by the council of a municipality, is


declared to be an emergency in accordance with the municipality’s laws and sets


forth the reasons for the immediate necessity thereof, the legislative determination


of the existence of an emergency is not reviewable by a court.’” State ex rel.


Moore v. Abrams (1991), 62 Ohio St.3d 130, 132, 580 N.E.2d 11, 12, quoting


Jurcisin v. Cuyahoga Cty. Bd. of Elections (1988), 35 Ohio St.3d 137, 519 N.E.2d


347, paragraph three of the syllabus. Although purely conclusory, tautological, or


illusory language in an emergency measure does not meet the requirements for a


valid ordinance under R.C. 731.30, see Huebner v. Miles (1993), 92 Ohio App.3d


493, 497, 636 N.E.2d 348, 351, the language of the ordinance that the measure


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was “for the purpose of the preservation of the public peace, safety and welfare


and because the City of Delphos must comply with the EPA imposed deadlines for


the improvements to its water system” is sufficiently specific. Cf. Youngstown v.


Aiello (1951), 156 Ohio St. 32, 45 O.O. 45, 100 N.E.2d 62 (ordinance prevented


from taking immediate effect where purported emergency clause stated that it was


necessary to preserve the public peace, health, and safety, but gave no specific


reasons for the necessity); see Walsh v. Cincinnati City Council (1977), 54 Ohio


App.2d 107, 8 O.O.3d 208, 375 N.E.2d 811 (ordinance invalid since emergency


clause merely stated that it was an emergency because it was an emergency).


      In that the emergency clause of Ordinance No. 1995-15 sufficiently states


and defines the emergency, the issues of whether an emergency actually existed or


the accuracy of the reasons given by council are not subject to review by this


court. Moore, supra, 62 Ohio St.3d at 133, 580 N.E.2d at 13. Appellant’s third


proposition of law is also meritless.


      Appellant has failed to overcome the presumed validity of the ordinance,


and the court of appeals properly determined that Waldick had established his


entitlement to the requested writ of mandamus. Accordingly, for the foregoing


reasons, the judgment of the court of appeals is affirmed.


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                                           Judgment affirmed.


      MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and


COOK, JJ., concur.




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