(First Circuit — Hamilton Co., O., Circuit Court

Jan. Term, 1898.

Before, Cox. Smith, and Swing, JJ.

#### J. W. DAVY, a Taxpayer, v. THE VILLAGE OF HYDE PARK.

A village is without power to enter into a contract under the provisions of a new ordinance until ten days after the final publication of the ordinance.

Error tc the Court of Common Pleas of Hamilton county.

Swing, J. •

This is a suit by a taxpayer of the village of Hyde Park. *507to enjoin said village fr.om carrying out a contract with a corporation to furnish electric lighting for said village.

Where a company stands by with a full knowledge of the character of a cause in litigation, and does not ask to be made a party defendant until after the rendering of an adverse judgment, it will not thereafter be aided by the court in getting into the case.

A village can only enter into a contract for electric lighting for a term of ten years.

*F. H. Kinney,*and *Hollister*& *Hollister*for Plaintiff.

*W. J. Davidson,*and *Hdwin*Qholson,for the Village.

Quite a number of grounds have been assigned why said contract should not be permitted to be enforced. The court is of opinion that clearly on one of these grounds this contract is invalid.

The contract was entered into on January 5, 1898. The ordinance was passed on December 28, 1897, and the first publication was made under it January 1, 1898. The earliest time at which said ordinance could become operative was ten days from the final publication, which was January II, 1898. And under the rule laid down in the case of Kinsley v. Oily of Hamilton, 3 C. C., 201, the village had no power to act until the expiration of the time prescribed by law, and that any action taken by the village prior to that time would be void.

On some of the other objections raised to the legality of this contract some of the court have grave doubts, but upon these we deem it unnecessary to express an opinion, and no ruling will be made thereon, and the injunction will therefore issue on the ground that the contract was entered into before the village had any power to contract.

SAME OASE-ON EE-HEA BING.

*508Swing, J.

■We have reconsidered the matter in controversy here upon the questions raised in the brief of defendant.

Our conclusion, however, remains the same. Without •considering whether the contract signed and intended to be the conti act is in fact the contract between the parties, or whether the ordinance and the bond constitute the contract, in either event the plaintiff is entitled to an injunction. We •think the ordinance is invalid on one ground at least, and that is that it is an ordinance granting certain rights to the •company for the term of fifteen years, and one of the agreements is contained in section fifteen of the ordinance which ¡•seeks to exempt them from taxation during the time said plant shall be operated by said company; and by section six ■of the ordinance the company was granted the right to operate for the term of fifteen years. This ordinance says: “Hereby and herein granted and conferred, shall remain in :full force and effect, commencing with the acceptance of this ordinance, and ending fifteen years thereafter.” Ten years was the limit for which the village might contract; but it has agreed to either exempt from taxation the company’s property, or else to pay the company a sum equal to ■the amount of the municipal taxes levied against it.

With the filing of the brief for a re-hearing the Electric Light Company asked leave to be made a defendant and file an answer. Such request should only be granted in the interests of justice. It does not seem to me that any interests of justice will be subserved by allowing it to be filed. The company waited until after the judgment had been rendered, and made no effort to be made a party, although its •attorney appeared as assisting the village in the trial of the, •case. So that there is no question of surprise or want of knowledge of the pendency of the action, but, in fact, the ■company stood by until the case was decided.

On the question of the merits of the controversy we have *509this to say in this connection, that in onr opinion it was a very improvident contract for the village to make. With a possible yearly income of about $8,000, it was proposed by this ordinance to expend nearly $6,000 for electric lighting. No comment need be made on such conduct. The company will not now be aided in getting into this case, but will be left to work out its rights without regard to this action.

*F. H. Kinney,*and *Hollister & Hollister,*for Plaintiff,

*W. J. Davidson,*and *Edwin Gholson,*for the Village.