City of Mt. Vernon v. State ex rel. Berry

Citations

• 71 Ohio St. (N.S.) 428

Syllabus

<p>Municipal corporation enters into contract mth an individual— Under a statute which is unconstitutional — But subject-matter of contract is not ultra vires nor illegal — Facts such as would estop an individual from defense of unconstitutionality — Municipal corporation likewise estopped — Section 2702, Revised Statutes, does not apply, when — Controversy between parties under contract — Cannot be determined in mandamus proceedings, when.</p> <p>1. Where a municipal corporation has entered into a contract with an individual under and by virtue of a statute which is unconstitutional and the subject-matter of the contract is not ultra vires, illegal or malum prohibitum, and the, facts are such, as against the corporation, as would estop an individual from setting up as a defense the unconstitutionality of the statute, the municipal corporation will also be so estopped.</p> <p>2. In- such case, when it is provided, in such statute that section 2702, Revised Statutes, shall not apply to contracts made under such statute, such provision must be read as an exception to said section 2702, and the latter section does not apply to contracts made under such statute.</p> <p>3. A controversy between the parties to a contract as to their respective rights under the contract cannot be determined in proceedings in mandamus.</p>