author: Robinson, J.

text:
    Wertenberger v. The State of Ohio.

      Criminal law — Charge to jury at close of evidence — Duty of court discretionary — Section 13673, General Code — Sexual intercourse with pupil — Section 13030, General Code — Instruction as to corroborating evidence erroneous, when — Evidence —■ Error to admit affidavit filed before magistrate — Or affidavit charging bastardy.

    1. Under Section 13675, General Code, the court is authorized hut not required at the conclusion of the evidence, upon the request of the state or of the accused, to charge the jury before argument upon the points of law requested and pertinent to the case. (Blackburn v. State, 23 Ohio St., 146, approved and followed.)
    2. In a prosecution under Section 13030, General Code, a charge, “Though you are advised by the court not to convict the defendant upon the uncorroborated testimony of I. M., yet it is not necessary that the crime charged be proven independently of the testimony of said I. M., or that the testimony of I. M. be corroborated in every particular, but it is only necessary that there be circumstantial or direct evidence in addition to the testimony of I. M. tending to connect the defendant with the crime charged and to prove some of the material facts testified to by I. M.,” is subject to the interpretation that a corroboration as to a material fact other than the wrongful intercourse of the accused with the prosecuting witness would warrant a conviction, and is therefore erroneous.
    3. In the trial of a criminal case the admission of the affidavit charging the offense before the magistrate as evidence in behalf of the state is erroneous.
    4. In a prosecution under Section 13030, General Code, it is error to admit as evidence in behalf of the state an affidavit charging the accused with being the father of the bastard child of the pupil.
    (No. 16145
    Decided April 29, 1919.)
    Error to the Court of Appeals of Stark county.
    The plaintiff in error, Artman Wertenberger, at the April 1917 term of the court of common pleas of Stark county, Ohio, was indicted for the violation of Section 13030, General Code, said indictment charging the plaintiff in error with being, on or about the first day of June, 1917, a school teacher over twenty-one years of age, and with unlawfully and wilfully having sexual intercourse with one I. M., said I. M. being then and there a female pupil under his instruction.
    Upon the trial the evidence disclosed that on the 25th day of July, 1917, there were filed in the office of W. L. Crubaugh, acting mayor of the city of Alliance in said county, two affidavits, the one charging the plaintiff in error with the crime for which he was afterwards indicted, the other charging him with being the father of the unborn bastard child of I. M.
    Both affidavits were signed and sworn to by M. M., whom the record disclosed to be the mother of I. M.
    Upon the trial these affidavits were offered in evidence by the state, admitted and read to the: jury, and sent to the jury room, over the objection of plaintiff in error.
    A conviction was had, motion for new trial overruled, error prosecuted to the court of appeals, and .judgment affirmed. The assignments of error here are the same as in the court of appeals:
    1. Error in giving a charge to the jury at the request of the state before argument;
    2. Error in the language of the charge; and
    3. Error in the admission as evidence' at the trial of the two affidavits made' by M. M.

      Messrs. Hart & Koehler, for plaintiff in error.

      Mr. Walter S. Ruff, prosecuting attorney, and Mr. C. B. McClintock, assistant prosecuting attorney, for defendant in error.
   Robinson, J.

Before argument, at the request of the state, the court gave to the jury the following charge:

“1. Though you are advised by the court not to convict the defendant upon the uncorroborated testimony of I. M., yet it is not necessary that the crime charged be proven independently of the testimony of said I. M., or that the testimony of I. M. be corroborated in every particular, but it is only necessary that there be circumstantial or direct evidence in addition to the testimony of I. M. tending to connect the defendant with the crime charged and to prove some of the material facts testified to by I. M.”

The legislature, by Section 13675, General Code, has provided the order in which the trial of criminal cases shall proceed:

Paragraph 5. “When the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court; such instructions shall be reduced to writing-if either party request it;”

Paragraph 6. “When the evidence is concluded, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state conclude the argument to-the jury;”

Paragraph 7. “The court, after the argument is concluded and before proceeding with other business, shall forthwith charge the jury; such charge, or a charge given after the conclusion of the argument, shall be reduced to writing by the court, if either party request it before the argument to the jury is commenced. Such charge or charges, or other charge or instruction provided for in this section, when so written and given, shall not be orally qualified, modified or explained to the jury by the court. Written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court and remain on file with the papers of the case.”

This provision differs from the provision for procedure in civil cases, Section 11447, General Code, in that that section specifically provides, such “instructions shall be given or refused by the court before the argument to the jury is commenced;” and while Section 13675 is not clear and specific in its provision as to the giving of a charge before argument, yet when the following of paragraph 5 thereof, “When the evidence is concluded, either party may request instructions to the jury on the points of law, which shall.be given or refused by the court,” is considered. in connection with the provision of paragraph 7, “such charge, or a charge give.n after the conclusion of the argument,” the natural inference is that the legislature, by the use of. the words “such charge, or a charge given after the conclusion of the argument,” had in contemplation some other charge than the charge given after the conclusion of the argument; and this is strengthened by the reference in the same paragraph to “such charge or charges, or other charge or instruction provided for in this section.” It is, however, significant that the legislature did not adopt in this section the mandatory language of Section 11447.

While the legislative intent is not clear, this court, in Blackburn v. The State of Ohio, 23 Ohio St., 146, held that the court is not bound to deliver such charge until after the argument. We are inclined, to the end that the uncertainty as to its meaning be settled, to interpret it farther and are of opinion that in the trial of criminal cases the statute authorizes but does not require the giving of a proper charge before argument upon the request of counsel for either party as to the point requested, and so hold.

The second assignment of error is to the wording of the charge. Section 13671, General Code, provides: “In a trial for seduction under promise of marriage, or an indictment of a superintendent, tutor or teacher of a female in a school or other public institution, or instructor of a female in music, dancing, roller-skating, athletic exercises or a branch of learning, of sexual intercourse with her consent while under his instruction, a conviction shall not be had on the testimony of such female unsupported by other evidence to the extent required as to the principal witness in cases of perjury.”

. No statutory provision exists as to the extent the prosecuting witness in cases of perjury shall be supported by other evidence. The presumption then follows that the legislature, in the enactment of the provision that before a conviction can be had in a prosecution under Section 13671 the female witness must be supported to the extent required as to the principal witness in cases of perjury, had in mind and referred to the rule adhered to by the courts of the state as to the prosecuting witness in cases of perjury, which rule is as follows:

“It is a general rule, that to warrant a conviction under an indictment for perjury, there should be at least one witness to the corpus delicti, or the falsity of the matter assigned as perjury, and that the testimony of such witness be corroborated, either by another witness, or by circumstantial evidence sufficiently strong to satisfy the jury beyond a reasonable doubt of the guilt of the accused.” The State of Ohio v. Courtright, 66 Ohio St., 35.

It therefore follows that before a conviction can be had in a prosecution under Section 13671, the prosecuting witness must be corroborated by another witness or by circumstantial evidence tending to connect the accused with the act of sexual intercourse with the female pupil, that being the corpus delicti of this kind of a prosecution, which corroborating proof together with the evidence of the female witness must be sufficiently strong to satisfy the jury beyond a reasonable doubt of the guilt of the accused. The court below, however, while advising the correct rule in said charge, proceeds to destroy its advice by adding the following, “and to prove some of the material facts testified to by I. M.”

Among the material facts testified to by I. M., the prosecuting witness in this case, were: that the .defendant, on or about the first day of June was a male person above twenty-one years of age; that he was on said date a teacher in the public schools in Stark county; that on or about said date I. M. was a female under the instruction of the defendant as a teacher in the public schools in said county; and that the defendant, on or about said day, in Stark county, unlawfully and wilfully had sexual intercourse with said I. M., a female pupil under his instruction. Under the charge of the court as given, while the court probably did not so intend, the jury might well have understood that they would be warranted in convicting the defendant if they found that the prosecuting witness, I. M., was corroborated in any one of the several material facts other than the fact that he had unlawful intercourse with her, and thereby to convict upon a lesser degree of proof than provided by the statute. The charge was erroneous in that its addendum tended to confuse and mislead. An erroneous prejudicial charge given before argument is not cured by a correct instruction in the general charge.

The third assignment of error was the introduction of the affidavits signed and sworn to by M. M., in which affidavit she positively swears that the defendant had sexual intercourse with I. M., a subject of which the record discloses she had no personal or actual knowledge. The state was thereby able by indirection to get to the jury evidence which it could not have gotten to it by direct inquiry, and thus to corroborate the prosecuting witness as to the corpus delicti. The evidence was incompetent, first, because it was in the form of affidavits, second, because it was as to a matter of which the witness had no personal knowledge, and was therefore hearsay purely; and third, because it enabled the state to emphasize the testimony of M. M. by offering her testimony orally and then offering her testimony in writing.

True, it is urged here in argument by the state that the affidavits were admitted in evidence for the purpose of identifying the subject of conversation between the witness Speidel, M. M. and the accused, wherein the accused is claimed to have offered $500 to settle both the charge of bastardy and the charge of felony upon which he was being tried, and that the competency of that conversation depended upon whether the criminal charge was under discussion, and that the affidavits are the best evidence of what crime they charge. But it does not anywhere appear that the jury were informed that these affidavits were admitted for such purpose and no other, and even if they had been so directed the error would not have been cured, for the admission of incompetent evidence for the purpose of predicating competent testimony upon it, that the state’s case may be strengthened, has no more argument in its favor than has the admission of the incompetent evidence alone for the purpose of making the state’s case and proving the crime; and if the competent testimony must be predicated upon incompetent evidence then it too must be excluded.

The more revolting the crime and the more it shocks the public conscience the more important it becomes that the court should carefully safeguard all the rights of the accused by the strict application of the rules of evidence which the collective thought and experience of jurists through the ages have evolved as tending in the greatest number of cases to insure exact justice, that the jury may not substitute public sentiment for legal proof.

Judgment reversed and cause remanded.

Nichols, C. J., Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Wanamaker, J.

license: Public Domain

text:
    Bowers v. Santee.

      Physician and patient — Contractual relation — Degree of shill and care — Malpractice — Cause of action accrues, when — Statute of limitations — Runs from termination of contract relation — Section 11225, General Code.

    1. The relation of surgeon and patient is one arising out of contract, express or implied. The surgeon is not an insurer or guarantor, but does agre'e to exercise the average degree of skill, care and diligence exercised by members of the same profession in the given situation.
    2. In an action for a breach of the contract in such case, the statute of limitations does not begin to run until the contract relation is terminated. (Gillette v. Tucker, 67 Ohio St., 10G, approved and followed; McArthur v. Bowers, 72 Ohio St., 656, disapproved.)
    (No. 16142
    Decided April 29, 1919.)
    Error to the Court of Appeals of Stark county.
    The facts are stated in the opinion.

      Messrs. Hart ■& Koehler and Messrs. McCarty, Armstrong & Rainsberger, for plaintiff in error.

      Mr. David Fording, for defendant in error.
   Wanamaker, J.

The sole question in this case is, Does the statute of limitations, raised by the defendant’s demurrer, bar plaintiff’s right of action? In short, Did more than one year intervene between the date upon which her cause of action “accrued” and the date upon which such action was commenced ?

Both courts below found that the statute of limitations, Section 11225, General Code, barred the plaintiff’s right of action.

Naturally the petition must stand or fall upon its own allegations. The third amended petition, to which the demurrer was interposed, contains among other things the following allegations:

“That on December 29, 1913, the plaintiff [Louise Bowers] sustained a fracture of both bones of her left leg just above the ankle joint, known as and commonly called the tibia and fibula, and other injuries to her left ankle joint not then and not now fully understood by plaintiff'; that on that date the defendant [Leon B. Santee] was advised of plaintiff’s injury and called to her home and employed by her to treat her, and then and there, as a physician and surgeon, was employed and undertook to and did treat plaintiff for her injury, until cured and at first treatment attempted to reduce the fracture ; that the defendant, as such physician and surgeon so employed by the plaintiff, made an examination of her injury,” etc.

The petition at great length and with much detail avers that the first attempt to reduce the fracture and treat said injury was unsuccessful, and that, thereafter, in about a week, the defendant again attempted to set or reset the fractured limb. The petition continues, “and in so doing he again negligently and without any care failed to place the fractured ends of the bones together, but placed them in such position that had the limb been kept stationary and properly treated thereafter the bones would have united and healed.”

The petition contains the further averment that the defendant “afterwards advised and instructed the plaintiff to put her weight on her left foot, and thereafter instructed and directed the plaintiff to move about on crutches and use her leg and ankle, and that the defendant pursuant to his employment, which was continuous from the time he first treated plaintiff’s injury, continued to so treat, direct, advise and counsel plaintiff concerning her injury until the.... day of May, 1914, all of which treatment, counsel, advice and direction so given to the plaintiff by the defendant pursuant to his employment as her physician prevented the ends from the broken bones from uniting, and all of such treatment so continued by the defendant until the......day of May, 1914, without the exercise of due care on his part as a physician, particularly the treatment after the plaintiff’s injuries were treated the first and second time and after her limb was set, was the chief and proximate cause of her injury and disability; that the defendant did not exercise due and ordinary care in his treatment during the entire time he treated plaintiff,” etc.

Boiled down, the petition alleges that the contract of employment between the surgeon and his patient continued from December 29, 1913, to May, 1914; that defendant’s failure to exercise due care and reasonable skill in the treatment of the broken bones was such as to cause her great injury, suffering and permanent disability, by reason of which she claims she was damaged in the sum of $10,000.

The question, then, in this case, is, When did the statute of limitations begin to run as against the plaintiff ?

The relation of surgeon and patient grows out of a contract of employment, express or implied, entered into between them. That contract of employment, as pleaded in the petition, covers the full period from December 29, 1913, to May, 1914. The action in this case was begun in April, 1915, more than a year from the date of the fracture, but less than a year from the date the patient was discharged.

If, under the allegations of the petition, the statute began to run in December, 1913, or the week following, when the resetting occurred, then it is evident that the statute was a bar to her right of action and the demurrer was rightly sustained. If, upon the contrary, under the allegations of the petition, the right of action did not accrue until May, 1914, then it is equally evident that said cause of action was not barred by the statute.

One of the most carefully considered cases before this court touching the question as to when the statute of limitations begins, to run for malpractice is the case of Gillette v. Tucker, 67 Ohio St., 106. The first two paragraphs of the syllabus in that case are helpful in a right understanding and application of the contract of employment between surgeon and patient. The language is as follows:

“1. A surgeon and physician, employed to treat a case professionally, is under an obligation, which the law implies from the employment, to exercise the average degree of skill, care and diligence exercised by members of the same profession, practicing in the same or a similar locality, in the light of the present state of medical and surgical science; and that he will indemnify the patient against any injurious consequences which may result from his want of ordinary skill, care and attention in the execution of his employment.

“2. It is the duty of the physician and surgeon to exercise due and ordinary skill, care and attention, not only in and about an operation which he decides to be necessary, but also, in the absence of a mutual understanding, or notice to the contrary, to render such continued further care and treatment as the necessity of the case requires; and he is liable for injuries and damages which proximately result from the want of such ordinary skill, care and attention.”

The doctrine announced in these two paragraphs is very plain and practical, so that both surgeon and patient will have their respective interests abundantly safeguarded. The doctrine is promotive of the exercise of reasonable skill, care and treatment by the surgeon, not only at the specific time of the' operation, but also during the subsequent period of treatment necessary to a reasonable and substantial recovery.

The patient relies almost wholly upon the judgment of the surgeon, and under the usual circumstances of each case is bound so to do, and if the injury is not reduced, and a normal condition restored, as fully or as speedily as expected, the patient is still at liberty to rely upon the professional skill, care and treatment to complete such recovery so long as the surgeon continues his employment with reference to the injury.

In this case the petition avers that such continued further care and treatment by the surgeon was not terminated until May, 1914, and the allegation is further clearly and expressly made that it was the failure in care and treatment covering this whole period that was the proximate cause of the injuries from which plaintiff suffered.

Under the doctrine in Gillette v. Tucker, supra, when applied to the allegations of the petition, the statute of limitations did not begin to run against the plaintiff until May, 1914, and, therefore, this action was not barred at the time it was instituted.

It is but fair to say in justification of the judgments below that the decision in Gillette v. Tucker was by a divided court, that stood 3 to 3, and that Judge Davis wrote a rather lengthy, and vigorous dissenting, opinion, taking direct issue with the opinion of the court by Judge Price.

A few years later the case of McArthur v. Bowers, 72 Ohio St., 656, involving substantially the same question, was submitted to the court. In the meantime there had been a change in the personnel of the court. The entry in this last case is as follows :

“Judgment reversed and that of the court of common pleas affirmed on the doctrine of the dissenting opinion in Gillette v. Tucker, 67 Ohio St., 106.

“Davis, C. J., Shauck, Crew and Summers, JJ., concur.

“Price and Spear, JJ., dissent.”

If McArthur v. Bowers, supra, was rightly decided, we still hold that under the allegations of the petition the statute of limitations did not begin to run until May, 1914. We, however, most respectfully disagree with and disapprove the McArthur case and we approve and reaffirm the doctrine announced in the Gillette case.

Physicians and surgeons exercising reasonable care and skill need have no fear of it. Reckless and careless physicians and surgeons should be kept in fear of it.

The law should not require impossible or unreasonable things. It should not impose upon the patient a duty that he can only know through expert knowledge which he does not possess, but as to which he is compelled to accept the judgment of his physician or surgeon.

In this particular case the patient could not know just when the initial trouble occurred that resulted in the alleged mistreatment. True she could know when the fracture occurred, but the surgeon was not responsible for that. Whatever responsibility he had was in connection with the: treatment. The treatment did not include merely the immediate and isolated resetting or reduction or adjustment, but manifestly the subsequent care and treatment by the surgeon was as essential to full recovery and restoration of usefulness as was the initial setting.

The patient had a right to rely upon the surgeon doing such things to restore the leg as reasonable care and skill would require, and he has a right to continue so to rely until the contract of employment is at an end.

Moreover, it is clearly just to the surgeon that he be not harassed by any premature litigation instituted in order to save the right of the patient in the event that there be substantial malpractice. The surgeon should have all reasonable time and opportunity to correct the evils which made the operation or treatment necessary, and even reasonable time and opportunity to correct the ordinary and usual mistakes incident to even skilled surgery. The doctrine announced here is conducive to that mutual confidence that is highly essential in the relation between surgeon and patient.

It is, therefore, held that in an action for breach of contract the statute of limitations does not begin to run until the contract relation has been terminated.

Judgment reversed and cause remanded with instructions to overrule the demurrer, and for such other and further proceedings as may be required by law.

Judgment reversed.

Jones, Matthias, Johnson, Donahue and Robinson, JJ., concur.

Nichols, C. J., dissents.


author: Donahue, J.

text:
    Brannon et al. v. The Board of Education of the Tiro Consolidated School District of Crawford County et al.

      Schools — Board of education — Authority to determine district needs — Section 7625, General Code — Injunction does not lie — To control discretion of hoard, when.

    1. Section 7625, General Code, vests in a board of education au- • thority to determine the needs of the school district for the proper accommodation of its schools.
    2. A court has no authority to control the discretion vested in a board of education by the statutes of this state, or to substitute its judgment for the judgment of such board, upon any question it is authorized bj' law to determine.
    3. A court will not restrain a board of education from carrying into effect its determination of any question within its discretion, except for an abuse of discretion or for fraud or collusion on the part of such board in the exercise of its statutory authority.
    (No. 16062
    Decided April 29, 1919.)
    Error to the Court of Appeals of Crawford county.
    In January of 1917 The Board of Education of the Tiro Consolidated School District of Crawford County passed a resolution declaring it necessary to purchase a site and erect-, thereon a schoolhouse and fully equip the same, in order to furnish proper accommodations for school purposes in that school district; and further providing that the question of issuing $40,000 of bonds for the purposes named be submitted to the electors of that district at a special election on the 14th day of February, 1917.

      In pursuance of such resolution an election was held, at which a majority of the qualified voters of the district voted in favor of the issuing of bonds in the amount named. Thereupon the board of education proceeded to advertise for sale the bonds so authorized to be issued, and bids were received therefor.
    On the 21st day of April, 1917, and before the time fixed for the sale of these bonds, plaintiffs in error filed an action in the common pleas court of Crawford county, Ohio, asking that the board of education be perpetually enjoined from offering these bonds for sale, and from selling or disposing of all or any part thereof, and averring among other things that the district was and is provided with sufficient school buildings and equipment for the proper accommodation of the schools of said district, that it is not necessary for the proper accommodation of such schools to issue bonds for the purchase of a site and the erection of buildings and purchase of equipment, that the board of education in passing said resolution was guilty of a gross abuse of discretion, and that its proceedings in that respect were unlawful and illegal and without authority and in furtherance of a scheme and conspiracy between the board of education and Fred G. Bittikofer to centralize the schools of that district without submitting the question-of centralization to the electors of that district, as required by Section 4726, General Code. The petition prayed that--a perpetual injunction issue against the defendant board of education, enjoining it from advertising these bonds for sale, or selling all or any part thereof.
    On March 6, 1918, plaintiffs filed an amendment to their petition, averring among other things that on the 21st day of January, 1916, The Board of Education of Crawford County, Ohio, created out of the territory embraced in The Tiro Consolidated School District two distinct rural school districts, one of said districts being denominated The North Auburn (Rural) School District and the other The Tiro Consolidated Rural School District, and that it provided in its minutes that this district “for the purpose of identification shall be known as the Tiro Consolidated Rural School District;” that no board of education was appointed for this rural district; that all the resolutions and legislation referred to in plaintiffs’ petition were passed by The Board of Education of the Tiro Consolidated School District, and not by The Board of Education of the Tiro Consolidated Rural -School District; and that at the election held to authorize the issue of bonds the electors of The Tiro Consolidated Rural School District voted to issue the bonds of The Tiro Consolidated School District.
    On the 21st day of April, 1917, a temporary injunction was allowed, which injunction, on the 7th day of May, 1917, was made perpetual. The cause was thereupon appealed by the defendants to the court of appeals of Crawford county, in which court the defendants filed an answer admitting the passage of the resolution described in the petition, and the purpose and intent of the board of education to issue bonds in the sum of $40,000 unless restrained by order of the court, and the intention to apply the proceeds' of such bonds to the building and equipping of a schoolhouse, as stated in the petition, and denying each and every allegation in the plaintiffs’ petition. Further answering defendants averred that the issues joined by the pleadings in this case were fully and finally adjudicated in cause No. 11840 on the docket of the commons pleas court of Crawford county, which action was brought and maintained by the plaintiffs in that case as taxpayers of the school district; and defendants further averred that on the 26th day of September, 1917, pursuant to a resolution passed by the board of education, the question of centralization of schools of The Tiro Consolidated School District was submitted to the qualified electors of that district, under and pursuant to the provisions of Section 4726, General Code, and that a majority of the qualified electors of that district voted in favor of centralization.
    The defendants answering the amendment to the petition denied each and every allegation therein contained, except such as were admitted in the original answer.
    The plaintiffs in reply to this answer admitted that the question of centralization of schools was submitted to the qualified electors of The Tiro Consolidated School District, and that the majority of the electors of that district voted for centralization, but averred that the question of centralization was never submitted to the qualified electors of The Tiro Consolidated Rural School District; and they denied each and every other allegation of the answer.
    The issue so joined was heard by the court of appeals on the pleadings and the evidence, and that court found on the issues joined for the defendants, and further ordered that the defendants should pay the costs of the suit.
    This proceeding in error is brought to reverse the judgment of the court of appeals of Crawford county.

      Mr. William C. Beer, for plaintiffs in error.

      Mr. 0. W. Kennedy and Mr. Chester A. Meek, for defendants in error.
   Donahue, J.

Section 7625, General Code, vests in the board of education authority to determine the needs of the school district for the proper accommodation of its schools; and, where funds at its disposal, or funds that can be raised under the provisions of Sections 7629 and 7630, are not sufficient to provide such accommodations, it is the duty of the board of education to make an estimate of the probable amount of money required for such purpose, or purposes, and submit the question of issuing bonds for the amount of such estimate to the electors of the district at a general election, or at a special election called for that purpose.

A court has no authority to control the discretion vested in a board of education by the statutes of this state, or to substitute its judgment for the judgment of such board, upon any question it is authorized by law to determine. Nor will a court restrain such board of education from carrying into effect its determination of any question within its jurisdiction, except for an abuse of discretion, or for fraud and collusion on the part of such board in the exercise of its statutory authority.

In this action the plaintiffs aver that it was and is wholly unnecessary to purchase a site and build and construct a schoolhouse for the proper accommodation of the schools of this district; that the resolution of the board of education declaring the same to be necessary was fraudulent and in pursuance of collusion and conspiracy to effect a centralization of the schools of that district without submitting the question to a vote of the electors, as required by Section 4726, General Code.

This petition states a good cause of action. The demurrer thereto was properly overruled by the common pleas’court. The defendants not desiring to plead further, judgment as prayed for in the petition followed as a matter of course. The cause was then appealed to the court of appeals, and in that court the defendants filed an answer denying the allegations of fraud and collusion and averring that the question presented by the plaintiffs’ petition had theretofore been fully adjudicated in 'a court of competent jurisdiction, at the suit of a taxpayer or taxpayers of that school district. The answer further averred that since the commencement of the suit the question of centralization had been submitted to the electors of the school district and ratified by a majority vote. The reply, in effect, denied the affirmative averments of the answer.

The court of appeals found from the evidence upon all the issues in favor of the defendants. No bill of exceptions wa§ taken, and no question is presented by this record as to the sufficiency of the evidence. The finding and judgment of the trial court is therefore conclusive upon the parties to this action upon all issues of fact joined by the pleadings.

The court of appeals having found from the evidence that the board of education exercised the discretion conferred upon it.by law, without fraud or collusion, it is wholly unimportant to discuss the effect of the centralization of the schools by a vote of the electors, of the district after the commencement of this suit and before the trial in the court of appeals.

Judgment affirmed.

Nichols, C. J., Jones, Matthias, Johnson, Wanamaker and Robinson, JJ., concur.


author: Johnson, J. Wanamaker, J., Jones, J.,

text:
    Froelich v. The City of Cleveland.

      Constitutional law — Rules of construction — Municipal home rule — Sections 3 and 7, Article XVIII, Constitution, 1912 — Location and protection of streets — Local police regulations — Loads of vehicles and width of tires — State and municipal police power — Scope of exercise.

    1. In the construction of a section of the constitution the whole section should be construed together, and effect given to every part and sentence. One part must not be allowed to defeat another, if by any reasonable construction the two can be made to stand together.
    2. When a city has adopted a charter, under which it is authorized to exercise “all powers of local self-government,” pursuant to the provisions of Sections 3 and 7 of Article XVIII of the Constitution, the authority to locate, establish and protect the streets within its limits resides in the municipality, and it may adopt and enforce such reasonable regulations for their proper and economic use as it deems to be proper. It may regulate the weight of loads and the width of tires of vehicles passing over the streets. It derives this authority not by grant from the legislature, but under express authority from the people of the state given in the constitution.
    3. The state and municipalities may make all reasonable, necessary and appropriate provisions to promote the health, morals, peace and welfare of the community. But neither the state nor a municipality may make any regulations which are unreasonable. The means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation.
    (No. 16114
    Decided April 2, 1919.)
    Error to the Court of Appeals of Cuyahoga county.
    August Froelich was convicted in the municipal court of Cleveland on the charge that he had violated Section 1343-e of the ordinances of the city of Cleveland, which reads as follows:
    “No load in excess of ten tons in weight, including the weight of the vehicle, shall be propelled or driven upon or over the streets of the city, provided, however, that the Director of Public Service may issue permits in special cases for the carrying of heavier loads upon or over certain streets especially designated in the permit.”
    The judgment of the municipal court' was affirmed by the court of appeals, and error is prosecuted here.
    It is conceded that the load which the defendant was charged with carrying was not in excess of twelve tons, and was, therefore, within the provisions of Sections 7246 to 7250, General Code (107 O. L., 139).
    It is contended that the ordinance of the city is invalid and void for the reason that it is a local police regulation in conflict with general laws, and, therefore, repugnant to Section 3, Article XVIII of the Constitution.
    Section 7246, General Code, provides that none of the wagons, trucks or vehicles named in the section, weighing in excess of twelve tons, including the weight of the vehicle, shall be operated over and upon the improved public streets, highways, bridges or culverts within the state, except as thereinafter provided.
    Section 7247 provides that the county surveyor of any county, when application in writing is made by the owner or person having charge, may grant permission for the moving of vehicles, etc., in excess of a total weight of twelve tons over the improved public highways, etc., within such county and located outside of any municipal corporation therein situated, and further provides that the director of public service of a city or the mayor of a village may in like manner grant such permission as to the improved public highways, streets, etc., within such city or village.
    Section 7248 prohibits the transportation in a vehicle over the improved public streets, highways, etc., within the state of loads greater than certain loads specified in the section, and in vehicles having-tires therein specified.
    Section 7249 further regulates the operation of trucks of certain weights, and at certain rates of speed.
    Section 7250 provides, that the weights of loads prescribed and rates of speed mentioned in Sections 7246 to 7249, inclusive, General Code, shall not be decreased or prohibited by any ordinance, resolution, rule or regulation of municipal corporation, board of county commissioners, board of township trustees or other public authority-.

      Messrs. Hole & Hole and Messrs. M. B. ■& H. H. Johnson, for plaintiff in error.

      Mr. W. S. FitsGerald, director of law; Mr. John D. Marshall, assistant director of law; Mr. James L. Lind and Mr. Samuel Doerfler, prosecuting attorney, for defendant in error.
   Johnson, J.

The ordinance prohibits loads in excess of ten tons being driven over the streets of the city without the permission, under specified circumstances, of the director of public service, and the sections of the General Code referred to prohibit loads in excess of twelve tons over improved public streets.

The city rests its contention as to the validity of the ordinance upon the authority given to it by the provisions of Sections 3 and 7, Article XVIII of the Constitution. Section 3 is familiar. It reads as follows: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Plaintiff in error insists that the sections of the statute above referred to having by inference permitted loads up to twelve tons over and upon improved public streets, the city has no power to pass the ordinance regulating loads upon its own streets, such as here involved.

It is of course well known that the above provision of the constitution has been under examination by this court in a number of cases, which are familiar, and which it is not necessary to refer to in detail.

Within a very short time after the new constitution went into effect in January 1913, a few months thereafter, and while the courts and people were fresh from the discussions in the educational campaign which preceded the adoption of the new constitution in September 1912, the case of The State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St., 71, was decided.

It was everywhere agreed that the purpose of the amendment in 1912 was to alter the situation which had prevailed prior thereto, and in which municipal corporations had possessed only such power as was granted to them by the legislature.

It was conceded that after the amendment the source of governmental authority, and the measure of its extent in municipalities which adopted charters, was the constitution itself; and that by the adoption of charters cities were authorized to s.ecure immunity from general laws. The only question was as to the method of procedure.

Shauck, C. J., who spoke for the court in that case, said at page 93: “This article provides two modes of securing the permitted immunity from the operation of the uniform laws which the legislature is required to pass..” He then set out tne two modes in detail, one of which is the adoption of a charter by a municipality for its own government, under which it is authorized to exercise “all powers of local self-government.”

The judges who did not concur in the opinion of the court as pronounced by Shauck, C. J., did not withhold their assent because they felt that, the majority were going too far, but, as shown by the opinions thejr filed in the cas.e, they in addition thought that the provisions for local self-government were self-executing. But the court was unanimous in the view that by the amendment to the constitution municipalities were given immunity from general laws, as stated.

It has been constantly recognized that it was contemplated by the framers of the amendment to the constitution that .the provisions in a charter adopted by a city would differ from the general laws of the state. The object of the amendment was to permit such differences and to make them effective. The State, ex rel. Lentz et al., v. Edwards et al., 90 Ohio St., 305, and Billings et al. v. The Cleveland Railway Co., 92 Ohio St., 478.

But it is insisted that the clause in the section referred to which reads, “and to adopt and enforce within their limits such local police, sanitary and other-similar regulations, as are not in conflict with general laws” prevents the passage by a municipality of an ordinance which limits loads on its improved streets to ten tons, after the legislature had passed Section 7246 et seq., which by inference permits loads of twelve tons on‘improved streets.

In Billings v. Railway Co., supra, the authority of the city of Cleveland to include in its charter a provision that consent of abutting owners of property shall not be required for the construction, extension, maintenance or operation of a public utility by original grant or renewal, unless such public utility is of such a character as to constitute an additional burden upon the rights of property owners in such highways, was involved. It was held that the granting of permission and the making of a contract to construct and operate a street railway in the streets of a city is a matter that may be provided for in a charter adopted by a municipality under Article XVIII of the Constitution.

It was urged in that case that the charter provision was invalid because it conflicted with the provisions of Sections 3777 and 9105 of the General Code, which required the consents of a majority of property owners, as represented by the foot front, as a condition for the making of the grant referred to. It is said in the opinion, at page 485: “The claim of the plaintiffs in this case is that the ownership and control of the streets for the purpose of travel is vested in the legislature as the representative of the people of the state.”

It was in that case shown that until the adoption of the amendments in 1912 the course of legislation under the old constitution seemed to clearly disclose that the control of streets had been regarded as a matter chiefly of municipal concern; the control to be exercised under such regulations as the legislature prescribed, it being, until the amendments, the source of municipal authority.

The Revised Statutes, and afterwards the General Code, provided that municipalities shall have power to lay off, establish, plat, grade, open, widen, narrow, straighten, extend, improve, keep in order and repair, light, clean and sprinkle streets, and shall have the care, supervision and control of public highways and streets within the corporation, shall cause them to be kept open, in repair and free from nuisance; and also provided that streets may be vacated by the city, and their continued use as streets abandoned. Sections 3632 and 3635, General Code, empower the city to adopt regulations to prevent injury to highways from overloaded vehicles and to prescribe width of tires of vehicles used for transportation.

In the Billings case it was held that there was no property right involved, and the rule laid down in Hamilton, Glendale & Cincinnati Traction Co. v. Parish, 67 Ohio St., 181, was approved, to the effect that the consents of owners of lots abutting on a street to the construction and operation of a street railroad on such street are not property-rights, but rights in their nature personal to each owner of an abutting lot; that such personal rights were bestowed by the general assembly on the owners as a check on the power of municipal authorities. The court in the Parish case say, at page 192: “This was done, as held by this court in Roberts v. Easton, 19 Ohio St., 86: ‘To protect owners of property on the streets of cities * * * from the exercise of arbitrary power on the part of the city authorities in permitting the streets to be used for street railroads.’ ”

The view in those cases was that the statute requiring consents of abutting owners was in the nature of a restraining regulation to protect the property owners in the manner stated. It was an exercise of the police power. But in the Billings case it was held that under the home-rule amendment the state had no power to impose such restraint, and that the city, in the exercise of the governmental authority therein conferred, had control of its streets and was permitted to make provision in its charter for the construction and operation of the street railway in its street's, wholly without reference to and unaffected by the general laws of the state touching the subject.

Mr. Justice Brewer in St. Louis v. Western Union Tel. Co., 149 U. S., 465, said at page 467: “Control over the streets resides, somewhere. As the legislative power of a State is vested in the legislature, generally that body has the supreme control, and it delegates to municipal corporations such measure thereof as it deems best. The city of St. Louis occupies a unique position. It does not, like most cities, derive its powers by grant from the legislature, but it framed its own charter under express authority from the people of the State, given in the constitution.” And, again, at page 472, he said: “But if the city had power to contract * * * for the use of the streets, it was because it had control over that use.” Ohio cities now have the same status under our constitution that St. Louis had then, in the respects referred to.

Now, if the location, vacation, extension, widening, curbing, guttering, paving, maintenance and control of streets are attributes of local self-government, which belong to the municipal governments under the home-rule amendment, it is only the application of the most familiar principles to say that the city is entitled, as a necessary incident to these attributes and this control, to do everything that is reasonably necessary to make them effective. And there is no language in the home-rule amendment which indicates that it was ever intended that the right of the city under that amendment to exercise the governmental control of the streets should end when it had located and surveyed the street, prescribed its width and grade, excavated it and put in the broken stone and concrete, laid the brick, stone or asphalt upon it, paid for all of these things out of the municipal treasury and assumed full responsibility for keeping the street open, in repair and free from nuisance; and that thereafter this domestic, municipal and local concern should be subject to the uninformed supervision of a foreign authority. It is a necessary incident to the governmental power of the city to do the things above stated in the construction and control of its streets, to make such reasonable provisions for their proper and economic use as its close knowledge of the necessities of the situation and the structure of the streets themselves demonstrates to be proper.

Knowledge of its own conditions might lead a city to construct streets of such heavy material and in such manner in the manufacturing and wholesale sections as to make proper the passage over them of loads heavier than twelve tons, and thus to assist in the advancement of its commercial and industrial enterprises.

The object of the home-rule amendment was to permit municipalities to use this intimate knowledge and determine for themselves in the exercise of all the powers of local self-government how these and similar local affairs should be conducted.

There is no express declaration in Section 3 of Article XVIII that the general laws referred to therein include the right to take out of the control of municipalities streets that have been laid off, constructed and improved by them, and paid for by their citizens, and there is no- implication of such authority from the clause “and to adopt and enforce within their limits such local police, sanitary and similar regulations as are not in conflict with general laws.” The implication that arises from that clause is to be drawn from the use of the words “local” and “general.” The context shows that they both relate to “police, sanitary and similar regulations.” The general laws concerning these things are manifestly laws which apply uniformly throughout the state. They are general for that reason. They involve the concern of the state for the peace, health, morals and safety of all of its people, and the protection of their property and rights, wholly separate from and without reference to any of its political subdivisions; such laws for instance as regulate the morals, of the people, the purity of their food, the protection of the streams, the protection of life and property, the safety of buildings, and similar matters. These matters are not local — they are general.

When the state passes a law which prevents the running of an automobile upon highways faster than at a certain rate, and in the business and closely built up portions of a city faster than at a certain lesser rate, that is a regulation for the protection of the lives of the people of the whole state and has no special relation to any of the political subdivisions of the state. Such a law applies upon all streets without reference to the character of the street or its structure, except as prescribed by the law itself. But the prescribing of the maximum weight of loads which may be moved upon a street constructed and improved by a city in accordance with its particular conditions and requirements is not a regulation of the character referred to in Section 3 of Article XVIII.. That simply looks to a matter of business management and economic wisdom in connection with the city’s local governmental affair.

Plaintiff in error cites The Cleveland Telephone Co. v. The City of Cleveland, 98 Ohio St., 358. The telephone company operated a line partly within and partly without the city. The controversy was with reference to the authority of the city to fix rates for service furnished by the company. The company had in former years, entered the city and constructed the line pursuant to statutes then in force. The line was the property of the company. No part of the expense of construction or maintenance was paid by the city. The city had no proprietary interest in the property or the enterprise; and had no duty and was subject to no liability in connection with its operation. The majority of the court in that case held that the city did not have the power to fix the rate. Two members, Judges Wanamaker and Johnson, did not concur.

In Stange v. The City of Cleveland, 94 Ohio St., 377, also cited, there was involved an express constitutional provision, Section 37, Article II, which provides that except in emergencies not to exceed eight hours shall constitute a day’s work for workmen engaged in any public work carried on by the state or any public subdivision thereof, whether done by contract or otherwise. This provision was found not to be self-executing, the legislature had enacted no law to enforce it which covered the time of violation by the defendant, and the ordinance of the city was, therefore, held valid. But as the constitutional provision had expressly applied to the entire state concerning public work carried on by the state, or any of its subdivisions, it was necessarily incumbent upon the general assembly to enact a law to enforce the provision in the entire state. The power and duty to enact that legislation was general and its application was state-wide. The constitutional provision and its, purpose to conserve the health and strength of the people apply alike to the people of the whole state. It is such a general regulation as we have described.

The history of legislation in Ohio during a long period shows that the term “police regulations” has been treated as having the meaning we have above indicated. (Fitzgerald et al. v. The City of Cleveland, 88 Ohio St., 338, 359.) The constitutional convention must have had this long-accepted meaning in mind when it used the term. The phrase is “local police, sanitaiy and other similar regulations.” Why specify “sanitary and other similar regulations” if the words “police regulations” were intended to be all inclusive.

In a very recent case, Sligh v. Kirkwood, Sheriff, 237 U. S., 52, at page 59, it was said concerning the police power: “At an early day it was held to embrace every law or statute which concerns the whole or any part of the people * * *. The police power, in its broadest sense, includes all legislation and almost every function of civil government.”

It is therefore very apparent that the clause in question here could not have been intended to include every law passed by the legislature as distinguished from general laws prescribing “police, sanitary and other similar regulations,” for in that case the provision in the same section (Section 3) conferring all powers of local self-government on the municipality would be vain and meaningless. Such a construction would make Section 3 self-contradictory and self-destructive. It would violate a rule which has been universally approved, and which requires that the whole section should be construed together and that effect must be given to every part and sentence.

As stated by Cooley in his work on Constitutional Limitations (7 ed.), page 92: “One part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.” By specific grant from the people the municipality became clothed with part of the sovereign power of the state, that is, as said by Shauck, C. J., in the Lynch case, supra, such powers of government as in view of their nature and the field of their operation are local and municipal in character. There was entire agreement in that, case that by the municipal home-rule amendment the people made a new distribution of sovereign governmental power.

As stated in Billings v. Railway Co., supra, at page 485:

“This involves no lack of the harmony that is essential and no loss by the state of its proper authority over the city and its people. The charter becomes the organic law of the municipality so far as such local powers are concerned. But the authority of the state is supreme over the municipality and its citizens as to every matter and every relationship not embraced within the field of local self-government.

“A fine illustration of the successful working out of the division and distribution of sovereign governmental powers is furnished by the national and state governments in the American system.”

The federal government and each state occupies and moves within its own sphere in the exercise of its powers. Each is sovereign within its own sphere. On many matters in which congress has paramount jurisdiction, the state may legislate until such time as congress acts upon the subject. As to such matters, when the power of the national government is exercised, that of the state is superseded.

Since the foundation of the government the courts of the country have, in numerous cases, been called upon to consider the line between the authority of the federal government and that of the states. Although there has been a gradual and satisfactory progress, no full and exact definition of the .dividing line has even yet been made. That is, disputes concerning it still arise. However, no one has ever contended that there is no such dividing line, or, that, because of the absence of an exact and complete definition of it, the exercise of the divided sovereignty was impossible or impracticable.

Section 7 of the home-rule amendment confers power on the municipality to frame and adopt a charter for its government, and to exercise thereunder all powers of local self-government as provided by Section 3. That is, the people of the municipality are given power to construct the machinery of their own local government and to operate it themselves.

A charter is not power. It is the symbol of power. It provides the means and the methods to exercise powers. But it is us.eless unless the powers intended to be exercised are at hand.

It must be remembered that neither the state in the passage of general laws, nor the municipality in the passage of local laws, may make any regulations which are unreasonable. The means adopted must be suitable to the ends in view, they must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation. 6 Ruling Case Law, 236; In re Steube, 91 Ohio St., 135, 140; The Toledo Disposal Co. v. The State of Ohio, 89 Ohio St., 230; 19 Ruling Case Law, 805; Mo. Pac. Ry. Co. v. Tucker, 230 U. S., 340, 347, and Cincinnati v. Pub. Util. Comm., 98 Ohio St., 320.

For instance, the ordinance involved in this case could, in a proper proceeding, be subjected to the test of its reasonableness and its impartiality in its application, but such a test does not affect the power of the municipality to enact legislation that is reasonable and impartial.

The constitution authorizes the city to exercise part of the sovereign power, and in the proper exercise of that part it is immune from general laws. If this is not so, it will have been demonstrated that this provision of the organic law, which was so long desired and so thoroughly discussed, and which the people believed had given them the power to manage their own local affairs, is an empty shell.

The judgment will be affirmed.

Judgment affirmed.

Nichols, C. J., Matthias, Wanamaker and Robinson, JJ., concur.

Wanamaker, J.,

concurring. I heartily concur in the judgment in this case, and, in the main, in the opinion, save and except what is said concerning, The Cleveland Telephone Company v. The City of Cleveland, 98 Ohio St., 358. The whole comment of the opinion touching this case is as follows :

“The controversy was with reference to the authority of the city to fix rates for service furnished by the company. The company had in former years entered the city and constructed the line pursuant to statutes then in force. The line was the property of the company. ' No part of the expense of construction or maintenance was paid by the city. The city had no proprietary interest in the property or the enterprise; and had no duty and was subject to no liabilítv in connection with its operation.”

By the clearest implication this reference to the telephone case approves that judgment and the grounds upon which the same is based.

I desire here and now to emphasize my vigorous dissent from that judgment and the grounds thereof as stated in the opinion, or upon any other grounds.

The first line quoted above would indicate that the telephone case was distinguishable from this case because in the telephone case the city sought “to fix rates for service furnished by the company.”

Here is a clear admission that the city has not the right and power under the constitution, as discussed in the telephone ca§e, to fix such rates. If the city has no right to fix such rates as to telephones, it has no right under the constitution to fix such rates as to street car service, water service, gas, light, heat and power service, or the rate for any other product or service furnished by any public utility. That doctrine with one sweep shears the city of all its police power in the first half of Section 3.

Is it intended by this language, which seeks to distinguish the telephone case from the truck case, to hold, that, by reason of the fact that “The [telephone] company had in former years entered the city and constructed the line pursuant to statutes then in force,” a company entering a city and seeking to construct lines pursuant to the statutes now in force would be subject to the city charter and not to the state statute? If the language has any significance at all this is the plain intendment of it, and yet no one would contend that under the constitution and laws of Ohio there could be such a distinction.

Why insert the language “No part of the expense of construction or maintenance was paid by the city?” The same is true as to the truck. It is a private or proprietary interest. But both operate upon the streets.

Neither is the telephone company case distinguishable from this truck case for the reason that the telephone company’s lines extend partly without the city.

The telephone company was not wholly within the corporate limits. of the city. Its lines did extend outside of the corporate limits, but so did the street extend outside of the corporate limits, and many other streets of the city of Cleveland extended outside of the corporate limits. But why should one street be regulated within the city by a charter and another street regulated within the city by a statute? It is incredible. All streets within the city must be subject to the same power, regulated by the same authority, the same police power; by the city or state. You cannot make any such technical distinction that is practicable and reasonable.

In the telephone case the subject-matter of regulation was the street of the city of Cleveland — its use and occupation by the telephone company and the “terms and conditions” of such use.

'In the truck case we have the same identical question, the use and occupation of the streets of the city of Cleveland by a truck; and the same police power that fixes the terms and conditions, including fares' for the telephone, must fix the “terms and conditions” for the truck. The telephone is a public utility in fact and in law. The truck is a public utility in fact, and may at any time the legislature sees fit, under proper circumstances, be made a public utility in law. They are both transportation agencies. The telephone company by steel wire transports messages. Froelich by the use of a steel truck transports merchandise. They both use t-he same city street. If the Froelich case relating to steel trucks upon the streets of Cleveland is rightly decided, then the telephone case with reference to steel wires on the streets of Cleveland was wrongly decided. If upon the contrary the Cleveland telephone case was rightly decided, then this case is wrongly decided.

True in the telephone case the question involved was the size of the fare, while in the truck case the question involved was the size of the load, but in both cases there was involved the regulation of a practical public utility in the street. The use and occupation of the street and the terms and conditions under which such use and occupation should be exercised involve the clear and practical exercise of police power contrary to a state statute. As to the truck we hold that the charter controls. As to the telephone we hold that the charter does not control, but that the statute controls. The judgments are entirely inconsistent, clearly repugnant, and wholly irreconcilable by any fair process of reasoning.

It is regretted that in this, truck case nothing whatsoever is said in the syllabus about police power, and no attempt is made in the syllabus to even refer to the telephone case or the doctrine therein announced. This cannot fail to impress the bar and bench of Ohio as an evasion or makeshift from the principles announced in the syllabus of the telephone case. The dootrine in that case involves two propositions. The first proposition is contained in the first paragraph of the syllabus as follows:

“The regulation of rates for services rendered or commodity furnished by a public utility is an exercise of police power.”

That proposition is primary and elementary, and, so far as I am able to observe, it is the universal doctrine of all of our courts, state and federal.

From the remaining paragraphs of the syllabus, reenforced by the opinion, the second proposition involved arises, to-wit, that such police power is a state power; at least, where the state exercises such police power the municipality is denied the right to exercise such police power in any manner or in any wise conflicting with the exercise of that police power by the state.

Of course it must be conceded on all hands that the exercise of .governmental power by the city of Cleveland in the regulation of the load that trucks may carry over its paved streets is a police power, and it must likewise be conceded that in this instance the exercise of that power by the city of Cleveland -is in clear conflict with the statute; that is to say, what the statute leaves lawful, a twelve ton load, the ordinance of the city makes unlawful. By indirection and clear implication from the judgment in the truck case the city charter is declared to be the paramount law, though the city has here exercised the identical police power that it exercised in the telephone case, which, in that case, was held to be an unconstitutional exercise of the police power by the city.

In this case, as in other home-rule cases, this court has become greatly confused because it has not undertaken in any wise to define the two branches of Section 3, Article XVIII, known as the home-rule amendment. The whole section reads:

(Part One) “Municipalities shall have authority to exercise all powers of local self-government and”

(Part Two) “to'adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Now, the first part evidently refers to all municipal powers in all municipal affairs, else it would not use the term “local self-government,” and, after all, “municipal affairs” was the particular subject-matter under consideration before the constitutional convention in this section of the article. Therefore, when its members granted “all powers of local self-government” they clearly must have intended to grant whatever police power was necessary for sufficient and serviceable self-government. To argue that they did not intend to grant police power and yet intended to grant “all powers of local self-government” is an utter absurdity, because even a schoolboy who has lived in a city and studied the first elementary textbook on civil government knows that without police power a government has no more vitality than a dirty dishrag.

Police power is the very backbone, heart and head of all government, and especially municipal government. And yet this court held in the telephone case that by virtue of Part Two, above, police power was taken from the city, or rather was not intended to be granted to the city — but was reserved for the state entirely and exclusively — save and except to supplement state legislation.

If Part One stood alone it would be difficult to read any doubt into it so far as its scope and extent were concerned. The language is as general as the English language can be made.

Now, one thing is quite evident, and that is that by the use of the word “and” after the words “local self-government” the constitutional convention and the people adopting the constitution intended to “add” some power. If “and” means anything, it means to “add” to and not to “subtract” from.

What was the power they intended to add? It could not have been municipal power, because that had been .fully and wholly granted in Part One. It, therefore, must have been state power, and when they provided for additional state power they wisely provided that it should conform to the exercise of the state power by the state. The difficulty here arises from the fact that the court forgot or ignored the duality of every city or village in the state. That duality is as follows:

1. It is a municipal community, incorporated as such, organized as such, with its own peculiar municipal affairs, its peculiar conditions, social, industrial, sanitary, and the like, as to which Judge Shauck, speaking for the court in the Lynch case, supra, clearly and convincingly held that the city, upon the adoption of a charter was immune as to general laws.

Now, that immunity does not exist in Part Two, because Part Two provides for uniformity; that is to say, when laws are to be enacted for the municipality as a mere political subdivision of the state, upon matters that are inherently general and uniform throughout the state, that are inherently of the same nature and operating effect, such as obtain in any other political subdivision of the state, as obtain within or without a municipality, but in no wise peculiar to any particular municipality, then as to such general conditions legislation should be by general laws. In short, therefore, we may say that in the exercise of municipal powers in municipal affairs the municipality shall enjoy immunity.

2. In the exercise of state powers upon general and uniform conditions throughout the state, uniformity throughout the state shall be the rule, and the municipality shall exercise its power with a view to preserving that uniformity as to state affairs.

The question then that should be primary and paramount in each case is this: Is it a state affair or is it a municipal affair ? If it is a municipal affair, it comes under Part One. If it is a state affair, it comes under Part Two.

I held in the telephone case that the regulation of affairs within the city between the telephone company and the residents of the city was a purely local or .municipal affair, and, therefore, subject to Part One, and I likewise hold that the regulation of the truck upon the streets of the city of Cleveland, within the city, is also a purely local and municipal affair and as such is governed by Part One and not by Part Two of said Section 3.

Until this distinction is recognized and applied, the lines between municipal jurisdiction, upon the one side, and state jurisdiction, upon the other, under the home-rule amendment, will remain cloudy and confused, so that neither lawyer nor layman can determine the meaning of this amendment as practically applied to the affairs of municipal government.

Surely it is to be hoped that the logical effect of the judgments in the telephone case and this truck case shall not reduce the municipal power of the city in municipal affairs to the minimum of control of its streets to the extent of speed or load, but deny control of the streets to the extent of regulating tolls, fares and rates for the products and service of the public utilities that are peculiarly and inherently municipal in everything but ownership.

It is well to remember that there, was once an issue in this country known as “taxation without representation.” It was fought out and won, and has never been seriously questioned since, and today, universally, local authorities are given the fundamental right to determine their own taxes, even though in some states the people have vested in the legislature the right to fix limits as to taxation, but not to levy or assess taxes.

By parity of reason and all the laws of logic it would seem that the people of the local communities should likewise have the right to determine how much they shall be taxed in the shape of rates, fares, tolls, and the like, for the service and product of public utility corporations.

The principle is home rule in fixing the taxes, and it should be home rule in fixing the fares. Democracy demands the one as well as the other, and the constitution of Ohio provides for both.

Jones, J.,

dissenting. I dissent from the judgment because the section of the constitution is so plain and unambiguous that it does not call for judicial construction. Section 3, Article XVIII of the Constitution, provides that municipalities shall have authority to adopt and enforce within their limits such local police regulations as are not in conflict with general laws. By unwarranted judicial construction the word “not” has been bodily taken from the provision, so that it now reads, in effect, “municipalities shall have authority to adopt and enforce within their limits some local police regulations as are not in conflict with general laws.”

By Section 7246, General Code, the state law permitted motor trucks weighing- twelve tons to be operated “over and upon the improved public streets, highways, bridges or culverts within the stateand by Section 7250, General Code, the state provided that the weight of loads should not be decreased or prohibited by any municipal ordinance or regulation. There is, therefore, a conflict between the state law and the municipal ordinance, which limited the load to ten tons. The regulation of weights by the city was a police regulation, adopted by the municipality, in the exercise of its police power, and since its operation was confined within the municipal limits it became a local police regulation. I know no authority anywhere which holds otherwise. The city concedes it is a police regulation. In the closing paragraph of the majority opinion the same concession is made when municipalities are cautioned to be careful not to exercise arbitrary or unreasonable limits in the adoption of such regulation. The law is a general law having uniform operation over the entire state. As stated in the law itself, it prohibits the operation of such vehicles over the “improved public streets, highways, bridges or culverts within the state,” and, therefore, since this municipal police regulation is in conflict with a general law upon the same subject-matter, the ordinance must fall. Neither specious argument nor legal sophistry can change the plain and simple language of the constitutional provision under discussion. The judgment in this case is in direct conflict with the principle announced in The Cleveland Telephone Co. v. The City of Cleveland, 98 Ohio St., 358, Stange v. The City of Cleveland, 94 Ohio St., 377, and Greenburg v. The City of Cleveland, 98 Ohio St., 282. Other Ohio cases might be cited where the principle has been sustained by various judges in their opinions.

This judgment overrules the principle upheld in the Cleveland Telephone Company case, supra. The streets of the city were submitted to the burden of location of poles and conduits therein with consequential damage thereto. Similar burdens are imposed and like damages would accrue from the propulsion of heavy trucks over these streets. Both telephone and truck traffic operate within and without the city limits. The telephone rates regulated in the Cleveland case were purely local and affected the lives and safety of no one, either within or without the city. In Stange v. Cleveland, supra, this court held that an ordinance of a chartered city, fixing hours of labor, was “a local police regulation applying only to the municipality in which it was passed, but if this local regulation conflicts with the general law it is invalid.” There the police power was exercised to conserve the health and strength of the people. In the instant case, it is exercised by the state to conserve all the highways of the state, — country and town, — with equal right of commerce given to all its citizens using such thoroughfares.

The majority opinion deals with “implications” arising from the constitutional clause. There is no necessity of dealing in implications, no need for construction. The mandate of the constitution is clear and comprehensive. Section 3, Article XVIII, in its entirety, reads as follows:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

The effect of the decision in this case is. to make that section come to a close after the word “self-government.” It ignores entirely the latter clause of the section. The latter clause is plainly a limitation upon the power of local self-government, in that it grants municipalities authority to adopt only such local police regulations as are not in conflict with general laws. If these powers of local self-government included police, sanitary and similar regulations, there would be no need of attaching the latter portion of the clause to this section of the constitution. Here is found the only warrant for municipal authority to deal with local police regulation, and it is not only plainly apparent, but specifically stated, that these municipalities have authority only to adopt and enforce such local police regulations as are not in conflict with general laws. This, covers all police regulations, without any such differentiation as is attempted here. It is intimated that the only police regulations intended to be withdrawn from municipal authority are those of statewide concern, those “which apply uniformly throughout the state” or which “involve the concern of the state, for the peace, health, morals and safety of all its people.” If such were intended, they would ipso facto be withdrawn from charter control because of their state-wide character. But the constitutional prohibition extends, to local police regulations which may conflict with general law. And, since regulation of both speed and weight of trucks is concededly a police regulation, it is difficult to see how, in case of conflict with state law, the city could not regulate speed but could regulate weight. I fear that the judgment in this case leaves the law of the state in confusion worse confounded. It may be that the bench and bar of the state will be able to reconcile this case with the uniform decisions of this court upon this subject, but I confess I am unable to do so.

It has been often held by this court that the police powers of the state reside primarily in the state as sovereign, but so long as. the state does not act these charter cities may exercise local police powers ; or, if the state does act, they are permitted to adopt and enforce police regulations that are not in conflict with the general laws of the state. Certainly we have nothing to do with the legislative policy. No doubt there is a crying need for the exercise of police regulations affecting heavy loads propelled over the city streets. ' So also there is the same need for regulation of the highways of the state, but in this instance the state has exercised its power over the subject-matter. It has done so in a way that prohibits the various municipalities through which the highways' run from making varying regulations affecting the size of loads passing through the municipal limits.


author: Matthias, J.

text:
    The State, ex rel. The Moore Oil Co., v. Dauben, Building Inspector.

      Construction — Penal statutes or ordinances strictly construed, when ,— Restrictions on trades, occupations or businesses — Exemptions liberally construed, when — Ordinance prohibiting gasoline and oil filling-stations — Consents of property owners unnecessary, when — Repair or remodelling of existing structure— Mandamus —Refusal of permit by building inspector.

    1. Statutes or ordinances of a penal nature, or which restrain the exercise of any trade or occupation or the conduct of any lawful business, or which impose restrictions upon the use, management, control or alienation of private property, will be strictly construed. and their scope cannot be extended to include limitations not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed.
    2. Under the provisions of a city ordinance making it unlawful to locate, build, erect, construct, maintain or operate a public gasoline or oil filling-station in a residence district without first procuring the written consent of two-thirds of the owners of property within a specified distance therefrom, but exempting any owner or operator of any such station theretofore erected, such owner is not required to procure the consents of property owners before he may repair, remodel or rebuild such preexisting gasoline or oil filling-station.
    3. Where an application is made by the owner of such preexisting station to the city building inspector for a building permit, and such inspector finds the plans and specifications submitted to be in conformity to law and the ordinances of the city, arid approves them, but refuses the permit on the sole ground that the consents of property owners have not been procured and filed, a writ of mandamus will issue upon the application of the owner requiring the issuance of a building permit.
    (No. 16140
    Decided April 2, 1919.)
    Error to the Court of Appeals of Franklin county.

      The relator, The Moore Oil Company, has maintained a gasoline filling-station at the northwest corner of Twenty-first and Broad streets in the city of Columbus since May 1, 1915, and since November 4, 1915, has been the owner of the tract whereon its filling-station is located. It has a driveway entering from Twenty-first street and the alley in the rear of its premises, leading to its building, and thence to Twenty-first street near Broad. On March 26, 1917, preparatory to the erection of a new building and the material extension and enlargement of its plant, the company procured from the director of public service of the city permission to construct an additional driveway from Broad street, and submitted to the building inspector the plans and specifications for the improvements to be made by it, which included the erection of a one-story brick building, with rest rooms, lavatories and comfort stations, to replace the one-story metal building theretofore used by it, also the installation of two underground steel tanks of 4000 gallons capacity each, instead of one of 1000 gallons and two of 500 gallons capacity each, and also additional pumps, and requested the issuance of a building permit.
    The plans and specifications for the proposed improvement were approved by the city building' inspector, who stated in writing, in response to said application of the plaintiff in error, that he found said plans and specifications to be in compliance with all laws and ordinances, except that ordinance No. 28932 of the city had not been complied with in the respect that said company had not procured and submitted with its application the written consents of two-thirds of the owners of the property abutting on said street for a distance of 500 feet in each direction from the median line of such proposed oil filling-station according to the frontage on both sides of the street, and that solely for that reason the application of said company for a building permit was refused.
    Ordinance No. 28932 of the city of Columbus referred to in the communication of the city building inspector is as follows:
    “Be it ordained by the council of the city of Columbus, State of Ohio:
    “Section 1. That it shall be unlawful for any person, firm or corporation for themselves or as agents, renters or lessees, to locate, build, erect, construct, maintain or operate any public gasoline or oil-filling station or sales depot on or within 187-Í feet from the curb line of any street in the city, or to construct or maintain a driveway from the street over the curb and sidewalk to such station or depot, when three-fourths of the buildings on both sides of the street for a distance of five hundred (500) feet in either direction from the proposed location of each wall of such oil-filling station or sales depot are used exclusively for residence purposes, without first securing the written consent of two-thirds (2/3) of the owners of property abutting on the street for a distance of 500 feet in each direction from the median line of such proposed oil-filling station or sales depot, according to the frontage on both sides of the street.

      “Sec. 2. Any person, firm or corporation, or any agent, renter or lessee, of any such person, firm or corporation who shall violate any of the provisions of this ordinance shall be fined not less than $100 nor more than $500 for each offense, and each week of continued violation of this ordinance shall constitute a separate offense after the first prosecution has begun.
    “Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law, but shall not apply to or be operative against any owner or operator of any public gasoline or oil-filling station or sales depot heretofore erected unless two-thirds of the owners of property for whose consent this ordinance makes provision file with the city clerk within thirty days after this ordinance takes effect their written protest against the further operation of such station or depot.”
    The Moore Oil Company instituted this proceeding in mandamus in the court of appeals, wherein it sought an order requiring- the defendant to issue to the relator such ■ building permit for the construction of its proposed improvement in accordance with the plans theretofore submitted to and approved by the defendant. ’
    Issue was made by petition, answer and reply. The defense claims that the proposed improvement involves the erection of a new structure and is prohibited by the terms of Section 1 of said ordinance, while the relator contends that it is exempt from the operation thereof and further asserts, that said ordinance is in conflict with certain provisions of the Constitution of the state and also of the United States.
    Upon hearing, the court of appeals refused the writ prayed for, and thereupon error was prosecuted to this court to procure a reversal of that judgment.

      Mr. James E. Robinson and Messrs. Webber, McCoy & Jones, for plaintiff in error.

      Mr. H. L. Scarlett, city attorney; Mr. Joseph Godown, assistant city attorney; Mr. James M. Butler; Mr. Harley E. Burns and Mr. L. L. Boger, for defendant in error.
   Matthias, J.

The primary question involved in this case is whether the structure proposed to be erected by the relator comes within the inhibition of ordinance Number 28932 of the city of Columbus. That ordinance was passed by the council of the city of Columbus on July 19, 1915, and approved by the mayor of the city on July 23, 1915. At that time the relator was maintaining and operating a gasoline and oil filling-station at the location now in question, being a lot at the corner of Twenty-first and Broad streets in sáid city, with a frontage of seventy feet on Broad street and extending to the alley, a depth of about one hundred and eighty-seven feet. For such purpose the relator had theretofore constructed and was then using in the operation of such station a one-story metal building, with underground gasoline tanks having a total capacity of two thousand gallons. It now proposes to erect a new building on the location of the old and provide further facilities, including another driveway, and increase its capacity by the construction of new and larger gasoline tanks and additional pumps. Pursuant to its plans for such improvement, and as an incident thereto, relator had caused the removal of its metal building to .make way for the new structure. But there was at no time an abandonment of its plant or a discontinuance of its business; on the contrary its business was continued, and the contract for the new improvement provided for the uninterrupted continuance thereof. Relator has therefore continuously maintained and operated a gasoline and oil filling-station at that location since about May 1, 1915.

Statutes or ordinances of a penal nature, or which restrain the exercise of any trade or occupation or the conduct of any lawful business, or which impose restrictions upon the use, management, control or alienation of private property, will be strictly construed and their scope cannot be extended to include limitations, not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed. 36 Cyc., 1180, and cases cited, and 2 Sutherland on Statutory Construction (2 ed.), Section 356.

The ordinance in question here makes it unlawful to locate, build, construct, erect, maintain or operate any public gasoline or oil filling-station on or within 187½ feet of the curb line of any street in a residence district of the city, or to construct or maintain a driveway from the street over the curb and sidewalk to such station, without first securing the written consent of two-thirds of the owners of property abutting on the street for a distance of 500 feet in each direction from the line of such proposed gasoline or oil filling-station. This is the substance of Section 1 of the ordinance, but Section 3 expressly provides that the ordinance shall not apply to or be operative against any owner or operator of any public gasoline or oil filling-station theretofore erected, unless within thirty days after the taking effect of such ordinance two-thirds of the owners of property within the specified distance file with the city clerk their written protest against the further operation of such station.

There can be no contention that the relator was in any wise precluded from continuing the operation of its plant as constructed and in operation prior to the passage of such ordinance. It is clearly exempt from the provisions of Section 1 by the terms .of Section 3 of the ordinance. It does not appear from the record that within thirty days subsequent to the passage of the ordinance protests were filed against the further operation of the station .of the relator, hence we have not here for consideration the validity of that provision in Section 3.

It is contended 1;y the defendant that the provisions of Section 1 are applicable and preclude the improvements proposed to be made by the relator. Where the lawmaking body declares its own intention in the enactment of a particular law, or defines the sense of the words, employed, it is within the exercise of its legislative power, and its own construction of its language should be followed. (2 Sutherland on Statutory Construction [2 ed.], Section 358.) If there could otherwise be any doubt as to the exemption of a filling-station in operation at the time of the passage of the ordinance from the terms thereof, that doubt is completely dispelled by a fair consideration of the language of Section 3, for the legislative body there construed its own provision and did not leave the interpretation thereof to the courts. The effect of the exemption clause in Section 3 is the same as if Section 1 itself contained the unconditional provision that the requirements thereof should riot apply to or be operative against any owner or operator of a filling-station erected previous to the passage of the ordinance.

For the purpose of an interpretation of Section 1 it is entirely immaterial whether or not the latter part of Section 3 is invalid, as being an unlawful delegation of legislative power. The provision excepting an owner or operator of a filling-station theretofore erected is as clear and explicit as is the provision prohibiting the erection and maintenance of such stations 'without procuring the designated consents. Presumably the prohibition would not have been enacted without the exemption, and the one cannot be enforced and the other disregarded. They must be construed together, and, as we have seen, the clause granting exemption from penal and restrictive provisions must be liberally construed. The presumption obtains that the ordinance is to operate only prospectively; but the legislative body was not content to rest upon that presumption, for by the exemption clause inserted it clearly indicated its plain purpose that the ordinance should have application and operation only prospectively. It prohibits the erection and maintenance of a public gasoline or oil filling-station, but excepts any owner or operator of a station theretofore erected. The relator is the owner of a public gasoline and oil filling-station theretofore erected, and therefore under the very terms of this ordinance may continue the maintenance and operation thereof. Requirements as to the method of construction and maintenance of such buildings and plants are prescribed by other laws and ordinances and admittedly have been met and complied with. It is not a particular kind or class of building or structure that is prohibited or sought to be regulated by this ordinance, but rather the use of the location as a public gasoline or oil filling-station. Here it appears that its character as such had been fixed prior to the passage of this ordinance, which does not in terms declare such places nuisances. They are thereby permitted to exist and continue. The alterations and improvements proposed do not change the character of this station, nor the use thereof, otherwise than to enlarge and somewhat improve it, as the record clearly shows. There is no language in this ordinance requiring' new consents whenever it is desired to alter or enlarge a station erected subsequent to the passage of the ordinance, with the specified consents of property owners, nor prohibiting the making, without procuring such consents, of such alterations and improvements of a station es.tablished and maintained prior to the passage of such ordinance.

The construction of the ordinance contended for by the defendant would preclude the reinstallation of a removed portion of such station and prevent restoration of a building damaged or destroyed by fire or otherwise. If changes or improvements of such station were to be forbidden, presumably language would have been used making such further restrictions. The effect of .language employed in restrictive provisions will not be extended by construction, but the operation of such provisions will be limited by the natural import of the terms employed. Section 1 of this ordinance seems to have been designed expressly to apply only to gasoline or oil filling-stations erected and established after the passage of the ordinance, and when limited, as it is, by the provisions of Section 3, can have no other application.

The judgment of the court of appeals is reversed and judgment rendered for plaintiff in error.

Judgment reversed and' judgment for plaintiff in error.

Nichols, C. J., Jones, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.