Citations
- 88 Ohio St. 71
Full opinion text
Shauck, C. J.
We understand it to be conceded that prior to November 15, 1912, when the constitutional amendment set out in the statement of the case became effective, the councils of municipalities were without authority to use public moneys for the purpose of establishing and operating moving-picture shows. Certainly the absence of plain statutory authority therefor denotes its absence. As the city of Toledo had existed and flourished from its founding without a municipally-owned attraction of that character, the declaration of the second section of the ordinance that it is an “emergency measure” must be taken to mean that it is a measure for which there is now supposed' to be opportunity.
The case of the relator requires it to maintain the two propositions that without action by the general assembly or the electors of the city' its council may “exercise all powers of local self-government,” and that the suggested mode of entertainment is within those powers. Both propositions are denied. Brief attention to the history out of which this amendment arose will aid materially in understanding its form and some of its provisions and in answering some of the questions which the present case presents for determination.
The first half-century of our statehood, as was universally conceded, had demonstrated the necessity for uniform legislation upon the subject of corporations, both municipal and private, in order that there might be a system of corporate law. This was a recognition of the very great importance of opportunity to know what the law is. Such uniformity was in terms required by the constitution of 1851. Thereafter municipalities rapidly increasing in size and numbers attracted the attention of lobbyists whose schemes were not always acceptable to each other nor to a majority of legislators, and resort was had to a scheme of acts of limited operation, though in a form assumed to be general, whereby the-practical operation of the requirement was weakened and finally so far annulled that the municipal law of the state was without form and much of it was void. By the year-1902, the situation was recognized as intolerable and the full operation of the constitutional requirement was restored. Throughout the ensuing decade, that requirement was respected by all departments of the government of the state; municipal credit was greatly improved, and it became apparent that every city in the state had a much better government than any had before. But progress toward the perfection of the uniform municipal code was slow. It-was retarded partly,' at least, by differences in the suggestions of natural persons who control or desire to control the exercise .of municipal power. These were said to be differences in the needs of different municipalities. Many believed that thfe differences were altogether subjective and in no sense objective. There was, too, a belief entertained by many disinterested persons that the form of government devised was, at least in many of the municipalities, too expensive and that it added unnecessarily to the burden of taxation. It resulted that in framing the amendment now under consideration, influence was exercised both by those who believed that the best results could be obtained by continuing to unite the intelligence and activity of the state upon a further improvement of the General Code and by those who believed that more satisfactory results could be reached by conferring upon the electors of different municipalities a larger influence in establishing the instrumentalities for their local government. Full authority for this statement is found in the provisions of the article.
By the first and second sections municipalities are classified as cities and villages, and the legislature is peremptorily required to pass general laws for their organization and government. On the 15th of November, when the article took effect, such laws were already in force, and they continued to be in force, operating upon every municipality in the state until a change should be effected in some mode authorized by the amendment. This conclusion results necessarily from the fa.miliar doctrine of Cass v. Dillon, 2 Ohio St., 607, where it was held that the new constitution of the state (that of 1851) created no new state. It only altered in some respects the fundamental law of a state already in existence; and even this was done pursuant to the prior constitution, under whose provisions the convention was called and the new constitution framed. It follows that all laws in force when the latter took effect, and which were not inconsistent with it, would have remained in force without an express provision to that effect: and all inconsistent laws fell simply because they were inconsistent; in other .words, all repugnant laws were repealed by implication. The conclusion also results from the express provision of the general schedule to the present amendments: “All laws then in force [when the adopted amendments took effect] not inconsistent therewith shall continue in force until amended or repealed.” It follows that on the 15 th of November the government of every municipality in the state remained unchanged.
But the amended article authorizes the electors of a municipality to secure some immunity from the uniform government which it perpetuates as the primary status of all municipalities, and to entitle their municipality “to exercise all powers of local self-government.” We have heard and read much discussion of the cases upon the self-executing capacity of constitutional provisions. The rational rule upon the subject clearly deducible from the decided cases is that such provisions are, or are not, self-executing according to their nature and terms. Much of the discussion in the cases cited relates to constitutions which perform the function heretofore regarded as appropriate of locating the powers of government and defining the modes of their exercise. From that source but little argument can be drawn to affect the interpretation of an instrument so largely legislative as is this. It is also to be observed that questions respecting the self-executing capacity of constitutional provisions usually relate to the necessity for legislative action to make them effective. This article provides two modes of securing the permitted immunity from the operation of the uniform laws which the legislature is required to pass. One of them is defined in the second section, and manifestly it is .not self-executing, for it expressly authorizes the legislature to pass “additional laws,” that is,- taws additional to the general laws which the legislature is required to pass, such additional laws to become operative in a municipality only after their submission to the electors thereof and affirmance by a majority of those voting thereon. The other mode is defined in the provisions of the later sections relating to the adoption of charters. From the terms and nature of these latter provisions they are self-executing in the sense that no legislative act is necessary to make them effective.
A fundamental defect in the relator’s case is that it assumes that a power conferred upon a municipality is conferred upon its council, although every provision of the amendment with respect to this body merely áuthorizes. it to make provisions for ascertaining the will of the electors. No additional act of the legislature is contemplated with respect to the adoption of a charter. The clear provisions of that article are first for the submission by the council to the electors ■ of the question: “Shall a commission be chosen to frame a charter?” and, that question being answered in the affirmative by a majority of the electors, that any charter framed shall be submitted to the electors at. an election “provision for which shall be made by the legislative authority of the municipality in so far as not prescribed by general law;” the meaning of. which plainly is that the municipal council may legislate first with respect to the preparation of a charter and second with respect to a submission to a popular vote of a charter framed, and that an approving vote of a majority of the electors of the municipality is indispensable to the adoption of a charter or the securing of any power beyond the general law. It seems, therefore, to be entirely beyond doubt that'since the city of Toledo had not by a vote of its electors approved any additional law passed by the general assembly, • and that its electors had not adopted a charter, the municipality and all of its departments have only such powers as were conferred by the general law; that is, such power only as it had prior to the 15th of November. In some of the cities of the state the subject of adopting charters is, as we learn from counsel and from the public press, receiving consideration. It should occasion no •surprise that we are urged to attempt here a complete exposition of the powers of local self-government which in that mode municipalities may exercise. But as the case we are to determine does not call for such comprehensive exposition, judicial propriety forbids it. Obviously, the adoption of a charter will be regarded as offering opportunities for the use of public money which the uniform law does not permit, and which perhaps it will never permit, but we cannot anticipate all the enterprises which may be suggested, and we should not assume in advance to be able to anticipate all the learning which may be bestowed upon an analysis of the instrument. It is, however, pertinent to observe that at a time when there is serious need to use the public credit for the repair of extensive injuries to public property wrought by disastrous floods, something has occurred to impair that credit to a very serious extent. Obviously, there are far-reaching laws which cannot be annulled by statutes or constitutional amendments.
But the case before us presents the question whether the establishment and operation of a moving-picture show is within “the powers of local self-government,” and the question has received' the attention of able counsel. In the amendment the phrase is used without definition and with the manifest intent that its operation shall be according' to its established meaning. It is fundamental in interpretation that statutes in derogation of the common law and amendments to statutes and constitutions shall have such and only such operation as is due to the natural import of their terms. The effective search for truth as well as the decorum due the convention and the people by whom the' amendment was framed and adopted requires us to impute to them a knowledge of that fundamental and familiar rule, and also to assume that they expected the courts to apply it to their work. Since municipalities get their powers from the. state, it is mathematically certain that they can include no power not possessed by the state. Local self-government is necessarily a part of government less than the whole.
In The State, ex rel., v. Guilbert, 56 Ohio St., 575, we recognized the truth familiar to all constitutional lawyers, that the functions of the state are governmental only, except so far as proprietary rights may become incident to the exercise of the primary function, and that since the insuring of titles does not essentially differ from any other insurance or business, the state cannot enter upon the business of insurance. How little would remain of the assurance which the Bill of Rights gives to minorities as well as to majorities that:' “All men * * . * have certain inalienable rights, among which are those of * * * acquiring, possessing and protecting property,” and that private property may be taken only for uses which are public, if the proceeds of industry and thrift may be seized for the establishment and operation of moving-picture shows and all other imaginable purposes not more frivolous nor more remote from the functions of government.
Consciousness of inadequate prevision forbids an attempt at a conceptual definition of the phrase “all powers of local self-government” to be applied to all cases that might arise. But an obviously correct descriptive definition is sufficient for the case in hand. They are such powers of government as, in view of their nature and the field of their operation, are local and municipal in character. The force of the terms employed requires the inclusion of such powers to be exercised by officials who in some manner and to some extent represent the sovereignty of the people. It as clearly excludes the exercise of functions which are appropriately exercised by caterers and impresarios. The suggestion that moving-picture exhibitions might be made educational is gratuitous because^ that is not their natural object. It is unavailing because article VI. of the Constitution shows that education supported by taxation is to be conducted by “a system of common schools throughout the state.”
Among those who had attentively studied the functions of written constitutions it was accepted as a sound proposition that a municipality might own and operate only such utilities as it used in / its municipal operations. Those- who are respon-' sible for this amendment were aware that no enlargement of that capacity was denoted by the provisions of the third section that “municipalities shall have authority to exercise all powers of local self-government,” and, therefore, they employed the express language of the later section of the article to confer that capacity with respect to other utilities. And as to them there are provisions to safeguard the interests of the people, while capacity to operate- amusements, if conferred at all, is conferred without restriction. If the language of this instrument were so doubtful as to require construction, a most natural question would occur, and the answer to it would be inevitable: Could we rationally impute an intention to authorize such use of the public money to those who were seeking to reduce the cost of municipal government and the consequent burdens of taxation?
The conclusion that this would be an unauthorized use of public money seems clearly to result from these considerations. If additional authority is desired to support a conclusion so obvious, it may be found in the reporter’s abstract of the briefs.
Writ refused.
Newman and Wilkin, JJ., concur.
Johnson, J., concurs in the first proposition of the syllabus and in the judgment.
Wilkin, J.,
concurring. The city council by ordinance ' directed the auditor to appropriate $1,000 from the general fund of the city “for the purpose of establishing a municipal moving picture theater.”
The relator concedes that nowhere do the statutes of the state confer any authority upon municipal councils to maintain or establish moving-picture theaters. The power to do that thing is predicated upon Section 3 of Article XVIII of amendments to the constitution of the state, adopted September 3, 1912, viz.: “Municipalities shall have authority to exercise all the powers of local self-government.”
The council is not the municipality; it is but an agent of the municipality. When this agent was appointed, its powers were definitely enumerated in the municipal code. It had not “all the powers of local self-government,” and the particular power now claimed by it is not one of those designated in the code.
It is only begging the question to say, the clause quoted from Article XVIII confers the power upon the municipality. The question is, Has the municipality, the civil organization of the people of the city of Toledo, assumed all the power- thus conferred upon it by the people of the state?
It cannot be argued that an agent of the- municipality, chosen before the state granted to municipalities all this local-governmental power, may exercise a power not within the scope of the agency ■when the agency was created. There is no pretense that the principal (the people of the city) has done anything since the council was elected to enlarge the authority of the agent (the council). The action of this council is based solely upon the first clause of Section 3, Article XVIII. And the argument of the relator- is that the clause shall be interpreted to read thus: Municipal coun cils shall have authority to exercise all the powers of local self-government.
If this be true, this amendment of the constitution at once exalts the creature (the council) above its creator (the municipality). The city of Toledo has not only not a government by the people (which is self-government), but all the powers of government are at once thrust into the hands of municipal councilmen.
If this council may do what it seeks to do by this ordinance, it may at once proceed to exercise all the powers conferred by Article XVIII of the .constitution upon the people of the city. Any council may by a series of ordinances forge upon the people of any city a system of city government to suit the politicians, whereas the very purpose of the home-rule amendment is to lodge directly with the people of the municipality the authority to govern their local domestic affairs within the territorial limits of the city as they may choose.
The people of the commonwealth as the paramount sovereign have the ultimate power to create and govern municipal corporations within the state. The former constitution delegated that power in part to a representative branch of sovereignty, the state legislature. The latter in turn passed over to the municipal lawmaking bodies a share of that power. The advocates of home rule proclaimed that the machinations of politicians and petty bosses, and the occult trade of the lobby, during the last half century, have beguiled these state and city legislators of the interests of the people and diverted those interests to venal uses.
The eighteenth amendment to the constitution was adopted by the people of the state to thwart this perversion and abuse of power, by giving to the people of the municipalities the' authority of controlling their own local affairs by any system of municipal government which they may choose, but subject to certain constitutional restraints. Municipal home-rule therefore means the very opposite of boss-rule, whether the bosses rule through the municipal council or the state legislature.
The purpose of the home-rule amendment (Article XVIII) is to pass the sovereign power of municipal government (within certain subjective limitations) directly from the people of the state to the people of the city, if the latter choose to exercise it. In other words, it parcels out a definite branch of the paramount sovereignty of the commonwealth to certain territorial subdivisions of the state, whose electors by popular ballot decide to assume and to exercise the local sovereignty thus permitted to them as “municipalities,” that is, as the incorporated people of a village or city. When the people have elected thus to become a local sovereign, then it may “exercise all the powers of local self-government,” through a council, or a director, or a town-meeting, as it may please.
There is no suggestion in this case that the people of Toledo have relieved its council from the restrictions of “the general laws” (which define the councils limited powers), and that the people have made the council a free lance to range over the whole domain of municipal government at will. ,
Grant that this particular ordinance is intended to promote some beneficent end. The people have not adopted it. In the whole record before us there is not á vague hint that the people of Toledo have expressed their wish to have a municipal moving-picture theater, or that the theater is to be endowed and operated for the moral or material well-being of the people. For aught that appears the theater may be- operated purely for gain, in competition with private persons or companies in the same business. And for what purpose or whose benefit the profits will be used, the promoters of this new departure in municipal government have not disclosed. The business may be conducted by the council as a monopoly, to destroy the business of private owners of picture shows. If the city council may thus drive out the picture shows, then why not the barbers, the laundries, the bakeshops, groceries, music teachers, coal dealers, drug stores, newspapers, and so on ad ínñnitumf All these concern the public health, morals and well-being more intimately than exhibitions of' moving pictures for popular entertainment.
Whether this clause of Section 3, Article XVIII, is self-executing or otherwise, we need not discuss. The question is not in this case, and only confüsés the issue. One thing is certain. It is not mandatory. By the structure of its language, it is permissive only: “Municipalities shall have authority to exercise all the powers of local self-government.” This is not equivalent to saying they must dr shall exercise, etc.
There is no token in the record that this municipality (the people of Toledo) has chosen, to. avail itself of this grant of all powers of local self-government. Neither the council, the mayor, the director of public safety, nor other agency of the municipality can determine for the people the form, character and objects of their municipal government.
The constitution speaks of but three methods: I. By the state: “General laws shall be passed for the incorporation and government of cities and villages.” (Section 2); II. “Any municipality may frame and adopt a charter for its government” (Section 7) which “shall be submitted to the electors,” etc. (Section 8) ; III. Both of these methods may be combined: “Additional laws may be passed which shall not become operative until submitted to the electors,” etc. (Section 2).
The city is still governed by the first method— under general laws of the state. The maintenance .of moving-picture theaters is not a function of municipal government authorized by the General Code. Until the electors of the city adopt one of the other methods, no branch of the city government may divert the general funds to the business of managing moving-picture shows for profit.
The question has been mooted and debated in this case, whether the maintenance and management of moving-picture shows is a legitimate function of municipal government. This question would better be raised on a different record than tire one before us. But it has been pressed upon us as one fairly arising upon the facts of the case. As defined by this record, the moving-picture theater must be understood according to the common acceptation—a business for profit. It may be for loss. Public revenue may not be raised nor expended in that way. This is not a function of constitutional government in Ohio. The kinetoscope may be used at some time, in some way, in the proper management of municipal affairs and for the public weal. But the moving-picture show-business, as defined, or rather undefined, in this ordinance, is not a fair instance of such a use. Upon the record before us, it is, to say the least, prima facie ultra vires of the municipal council.
The relator has failed to show us that such a use of public funds in a business of profit or loss, in competition ■ with private enterprise, is a function of government, so far as the people of Ohio have as yet, during one hundred and ten years of statehood, by their courts or in their constitution or the recent amendments thereto, defined their theory and practice of government.
By entitling this amendment “Home Rule,” did the revisers of the constitution indicate more than a redistribution of some powers of government, shifting all legislation in local affairs from the general assembly of the state to the electorate of incorporated urban communities ? Or did they indicate a change of the essential nature of government from the free American plan of individualism toward the foreign cults of communism and paternalism? To the people of Ohio who adopted it, “Home Rule” signified the former change rather than the latter. We are aware that the regulation of the intensely complex and highlv artificial life of great modern cities is a problem of practical sense and skill rather than of philosophic theory. Probably the ideal system of municipal management is a composite form of individualism modified as to certain communal interests by paternal favor and oversight. The evolution of modern city government seems to be toward that ideal. We do not seek to retard it.
This court is not dealing with a priori theory. Our province is to interpret a formal fact and to deduce its meaning from the document in which it is couched. True, we may view the fact in the historical perspective, but only to find its genesis in the common law of the land; as Coke says: “Out of the old fields springeth the new corn.” Our question is: Does the document embody a quiet revolution or a social evolution? The latter, we think. It is not a new constitution, but a modification of the old. Nowhere in the original constitution of Ohio, nor probably in any of the last-century state charters, can we find the power of taxation employed for competitive enterprise in the hazard of profit and loss, or that such an enterprise is within the sphere of constitutional government according to the American idea. If the people of Ohio meant to depart so radically from the ancient landmarks, they should and would have used proper language to convey that meaning.
Sections 4, 5 and 6 of Article XVIII, empower municipalities to acquire and operate certain designated public utilities. No claim is made that the business of moving-picture theaters is included in this additional grant of power; theaters are not “utilities” and are not mentioned in the grant. Expressio unius exclusio alteriiis est.
What is the proper range of government is not a legal but a political question to be decided by the people. It cannot be solved by speculation, but must ever lie open to the teaching of experiencé and history. But that the people of Ohio on September 3d last voted to make their state a political laboratory in which every village and city may, at the behest of the council. With funds raised by taxation, experiment in every variety of trade or business, as private persons do, is the proposition urged upon us by the advocates for the relator. We must be allowed at least to doubt the soundness of this construction of Article XVIII of the amendments. The rule of law is that the grant of powers to corporate bodies, purely the creatures of law and the agents of the state, is to be strictly construed, and if the grant does not clearly include the power in question, it must be denied. The natural development and safe progress of society, require that the expounders of its constitution shall be cautious—without, of course, being obstructive.
The great and extraordinary writ of mandamus should never issue, unless the right to it is strong and clear and the motives for seeking it are just and lawful, and above suspicion or reasonable doubt.. The writ should be refused.
Donahue, J.,
concurring in the judgment but dissenting from the reasons given therefor in the majority opinion.
The fact that I dissent from the reasons given by the majority of the court for the judgment entered in this case and yet concur in that judgment, requires that I should give in this separate opinion my reasons for such concurrence.
It is true that the' two propositions covered in the majority opinion are the only important questions in this case and the only ones that were argued by counsel. Yet, notwithstanding I dissent from the conclusion reached by the majority upon these questions, in order to be consistent with the conclusion I have reached in respect thereto, I am compelled to concur in the judgment refusing the writ.
The first question arising upon the pleadings and record in this case is whether municipalities now have authority to exercise all powers of local self-government, without adopting a charter, or without further legislation upon that subject. It would seem that the language employed in Section 3 of Article XVIII of the amendment to the constitution, is so plain that it does not require any construction other than to give to that language its usual and ordinary meaning.
This court, in the case of Slingluff v. Weaver, 66 Ohio St., 621, held that in the construction of á statute, “the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation.”
That rule of construction applies equally to the construction of the constitution, or any paragraph thereof, or to the construction of any contract, or other writing, involving judicial inquiry, and applying that rule to the construction of Section 3 of Article XVIII, it would appear to be the end of controversy.
That part of Section 3 with which we are particularly concerned reads as follows: “Municipalities shall have authority to exercise all powers of local self-government.” Certainly there is nothing obscure or uncertain in this language. It is so plain, concise and unambiguous that it affords no ground for controversy and suggests no doubt as to its meaning.
It is now insisted' on behalf of the respondent, that there must be read into this plain provision of the constitution words imposing conditions precedent to the exercise of this power; that is to say, it must be construed the same as if it read that “Municipalities shall have authority to exercise all powers of local self-government whenever the legislature shall pass the general or additional laws provided for in Section 2 of Article XVIII, or whenever the municipality shall adopt a charter in conformity to the provisions of Section j of that article
For aught I know to the contrary, that might have been a very wise provision to have written in the constitution. But, wise or unwise, it is not there. If it were a mistake not to so write this amendment, correction must be made in some other way than by a construction that will do violence to the language actually found therein.
It probably must be conceded that this language standing alone is not subject to any such construe-* tion as contended for by counsel for respondent. If it is to receive such a construction, it must be because other sections found in Article XVIII so modify the language of Section 3 as to require that construction. Therefore it becomes necessary to consider the further provisions of Article XVIII to determine that question.
The remaining part of Section 3 reads as follows: “And to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” Evidently this does not affect in any way •the time when the previous provisions of this section shall go into operation.
Section 1 applies only to the classification of cities and villages. It does not in any sense affect the provisions found in Section 3. But it is important to note that this section, like Section 3, is a clear and positive declaration of a status that is not dependent upon any condition precedent before going into effect.
Section 2 provides that “General laws shall be passed to provide for the incorporation and government of cities and villages; and additional laws may also be passed for the government of municipalities adopting the same.” This section is another grant of power absolutely effective on the day this amendment went into effect, and it is not important whether the legislature avails itself of the authority to pass these laws; it is nevertheless the constitution of the state and in full force and operation.
This section certainly contemplates the existence of general laws in effect at the time this amendment was adopted, and these general laws in relation to municipalities, that are not in conflict with other provisions of this amendment, are now the general laws of the state in relation to municipal corporations, and will continue as such, in full force until repealed or amended.
It is not necessary to have recourse to the doctrine announced in the case of Cass v. Dillon, 2 Ohio St., 607, as to the effect of the adoption of the constitutional amendments on existing' laws, for the reason that the general schedule attached to these amendments provides, among other things, that “all laws then in force not inconsistent therewith shall continue in force until amended or repealed.”
As said by this court in Cass v. Dillon, supra, “the new constitution of Ohio created no new state. It only altered, in some respects, the fundamental law of the state already in existence.” So that it follows, particularly in view of the schedule specifically providing that all laws in force not inconsistent with the amendments shall continue in force until amended or repealed, that the people of this state, in adopting these amendments to our constitution, must have contemplated and intended that these general laws relating to municipal corporations, not inconsistent with the provisions contained1 in the constitutional amendments, should remain as the “general laws” provided for in Section 2, subject, however, to amendment, repeal and further legislation. So that, if it be contended that these general laws provided for in Section 2 must be passed by the general assembly of this state before the provisions of Section 3 shall go into effect, then the answer to that contention is that these general laws are already on our statute books, and therefore the full measure of that demand is met and satisfied. The folly of delaying the operation of Section 3 for further legislation is so apparent that it would seem that the people of Ohio could not have intended to predicate this substantial grant of power upon the mere possibility of legislative action. The present general laws may never be repealed or amended. No further general laws may ever be enacted. But whether they are repealed, amended or others enacted, that fact cannot change the constitution of the state or affect its operation..
Section 2 of Article XVIII further provides that additional laws may be passed for the government of municipalities adopting the same, and it has been suggested that when these laws are passed and adopted then the grant of power found in Section 3 may become effective. This is in line with the former proposition as to general laws, and I do not care to discuss it further, except to say that if either this or the former construction is to obtain, then the municipalities are still dependent upon the general assembly of the state to measure out to them their power and authority to control their own local affairs, and Section 3 of Article XVIII might just as well never have been written. Undoubtedly it was the intention of this article to change the existing condition of affairs and grant to municipalities directly the authority to exercise all powers of local self-government.
It would be unprofitable to discuss the fact that cities and towns existed and exercised powers of local self-government before the state was created. The fact remains that at the time of the adoption of this amendment municipalities were recognized as creatures of the state, possessing only such powers as the general assembly of the state chose to confer upon them; and it has been uniformly held, in Ohio at least, that municipalities had no power beyond the express powers granted to them by statute. It was this condition of affairs that this provision of the constitution intended to change, and this, I think, these amendments have accomplished. It would therefore follow that the provision of Section 2, authorizing the enactment of general laws for the government of cities and villages, and additional laws for the government of municipalities adopting the same, does not authorize the legislature to grant any powers to municipalities, or to expand the powers already granted by the people, or to fix any date or any condition precedent to the exercise' of these powers. The grant of powers found in Section 3 is full, absolute and complete within itself. Therein is granted authority to exercise all powers of local self-government. Nothing further remains to be granted, and no authority is lodged anywhere, except in the donors of the grant, to impose conditions or delay the exercise of the rights conferred.
It is not suggested that any other section of this article, except Section 7, is in any wise related to Section 3, or in any way modifies the grant of power contained in that section. Yet, looking to all those other sections, we find that they are all declaratory of the rights of municipalities and are not dependent in any sense upon legislative action, except that Section 13 authorizes the passage of laws that limit the power of municipalities to levy taxes and incur debts for local purposes. So it would seem that if these other sections are independent of legislative action, Section 3 also is independent thereof.
Section 7 provides that any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all powers of local self-government. This section does not purport upon its face to control the operation of Section 3. On the contrary, it does purport upon its face that this must be done subject to the provisions of Section 3. In other words, it clearly appears from the language used in Section 7, that Section 3 is the dominant section. Even if this did not appear, there is no language used in Section 7 that even suggests the necessity of a charter before the exercise of the powers conferred in Section 3. If the construction contended for by the .respondent is to be given to this section, then it is necessary to read into it a mandatory provision that this charter must be adopted before municipalities can exercise the powers, of local self-government. That is to say, such a construction would require us to read this section as if it were written in the following language: “Before any municipality may exercise the powers of local self-government, it must frame and adopt or amend a charter for its government.” Suppose this section actually read in these words, would any contention be made here, or in any other forum, that without adopting a charter a city might nevertheless exercise these powers? And yet the construction asked would do as much violence to the language actually used as the other construction would do to the language suggested.
The language used in this section is just as plain and unambiguous as the language used in Section 3. It does not purport to create any conditions, but rather to grant a further privilege to municipalities to frame and adopt or, having so framed and adopted, amend a charter for its government, and then grants the authority to exercise under this charter all powers of local self-government; but particularly provides that this is all subject to the provisions of Section 3.
The impossibility of a construction of these amendments that would delay the exercise of these powers until a charter is adopted becomes apparent when we consider the condition of affairs that would obtain in this state under such a construction. Some municipalities would adopt charters and some would not. Those municipalities adopting charters would then derive their powers of local self-government from the constitution itself, while those municipalities not adopting a charter would still be dependent upon the general assembly of Ohio for authority to control their local municipal affairs. To determine the power and authority of cities not adopting a charter, we must look to the statutes of the state. For the power and authority of those adopting charters, we must look to the constitution itself. I cannot believe that such was the intention either of the framers of this amendement to the constitution or of the •voters who adopted it. Undoubtedly it was intended that on and after the time fixed in the schedule for these amendments to go into effect, all municipalities of the state should' starid alike and alike receive their powers directly from the same source; and not that part should receive their powers from the general assembly and part from the constitution itself.
Again, the schedule attached to Article XVIII reads as follows: “If the foregoing amendment to the constitution be adopted by the electors and become a part of the constitution, it shall take effect on November 15th, 1912.” It would seem as if this positive provision of the schedule sufficiently evidences the intention of thé people of this state •when they wrote this amendment into their constitution. True, it may be said' that that means only that on and after November 15, 1912, action might be taken to make all the provisions of Article XVIII operative. But when we look to the several sections of Article XVIII, we find that each and all of them are of such nature that they either declare a status or grant authority to do a particular thing. Certainly it cannot be successfully contendéd that where any provision of a constitution grants the authority to do a particular thing the doing or not doing of that particular thing affects in any manner the authority so granted. In other words, some of these sections authorize the general assembly to pass certain laws. That authority is complete on the day the amendment went into effect and any time thereafter the general assembly may exercise that authority. Other sections of this, article provide that the municipalities may acquire, construct, own, lease and operate public utilities, and raise money for such purposes by issuing .mortgage bonds for the ■ purchase, extension or ■equipment thereof; and that any municipality may ■frame and adopt or amend a charter for its government. These things they could do immediately on and after the 15th of November. In fact the only thing that it is contended could not be done immediately on and after the 15th of November, 1912, is that municipalities could not and cannot exercise the powers of local self-government in pursuance of the grant contained in Section 3. The language of this section is just as plain and certain as the language of the other sections. The power is conferred absolutely and without condition, and I can ■see no reason whatever for selecting out this particular section of Article XVIII and saying that this shall not go into effect until certain other .things are accomplished, but that all other sections in this article must be given immediate operation.
For these reasons I cannot concur in the first paragraph of the syllabus written by the majority of this court.
While this first paragraph of the syllabus practically disposes of the case before us and compels a refusal of the writ, yet undoubtedly the second paragraph of the syllabus deals with a proposition equally if not more important than the question covered by the first, and it is unfortunate indeed, that this question could not be settled authoritatively at this time. In view of the fact that I am of the opinion that Section 3 of Article XVIII of the Constitution grants full authority to municipalities to exercise all powers of local self-government without the aid of any legislation and without the necessity of adopting a charter as a condition precedent thereto, I would not consider it necessary to look to the statutes of the state to determine the powers and authority of municipalities, were it not for the holding of a majority of this court that Section 3 of Article XVIII has not yet become effective in the city of Toledo. If that is the correct view of this case, then, perhaps, it must be conceded that there is no' statute now authorizing municipalities to purchase and operate a municipal moving-picture theater; but following the conclusion I have reached, that these statutes purporting to grant powers to municipalities are inconsistent with the amendment to the constitution and entirely superseded thereby, the question is not whether there is any statute conferring such powers upon municipalities, but rather whether the operation of a moving-picture theater comes within the powers of local self-government. This question perhaps involves much more doubt than the former and presents far greater difficulties in arriving at a satisfactory conclusion.
I do not believe that governmental purposes include only the protection of life, liberty and property. On the contrary, I aril firmly of the opinion that one of the most important duties of the state is to promote the health, convenience, comfort and welfare of its citizens and advance the standard of citizenship in every legitimate way. But I do not believe it is within the purview of municipal government to invade the sphere of purely private enterprise wholly disconnected and divorced from public needs or public purposes. It is difficult, perhaps almost impossible, to prescribe a limit where governmental functions end and. private enterprise begins. In the last quarter of a century our views on this subject have so changed that a limit fixed along the line of the prevailing opinion on that subject at that time would seem absurd now, and so it may be a quarter of a century hence.
As an index to what has been generally understood to be comprehended in the term “governmental powers,” it is interesting to note that the general assembly of the state has heretofore conferred upon municipalities by statute the power to own and operate municipal lighting, power and heating plants; to provide for water supply, public grounds, parks and recreation centers; to hold property for charitable purposes; to establish municipal lodging houses, public baths and bath houses; to prevent the sale and distribution of vicious literature; to provide public libraries and reading rooms, to purchase books, papers, maps and manuscripts therefor, and to receive gifts and bequests of money for that purpose; and to maintain and .regulate public band concerts. In addition to this, authority has been granted to municipalities to construct railroads, 66 O. L., 80; 67 O. L., 11; 77 O. L., 91; 79 O. L., 82; 76 O. L., 149; 76 O. L., 180; 89 O. L., 323; 88 O. L., 737; 87 O. L., 110; 89 O. L., 308; 94 O. L., 648 ; 88 O. L., 593;'66 O. L., 83; also to fill and improve lands for terminal facilities, 82 O. L., 143; to empower municipalities to erect machine shops and issue bonds to pay for them, 88 O. L., 8; 77 O. Li, 155; 88 O. Li, 5; 77 Oi L., 292; 88 O. L., 199; 78 O. L., 103; 78 O. L., 39; 89 O. L., 28; 87 O. L., 108; 78 O. L., 51; 77 O. L., 7; 78 O. L., 146; 78 O. L., 60; 77 O. L., 193; also to construct glass works, 78 O. L., 67; 78 O. L., 24.
It is true that statutes authorizing municipalities to build railways have been held unconstitutional (P., Ft. W. & C. Ry. Co. v. Martin, 53 Ohio St., 386), but for the reason only that this legislation offended against Section 1 of Article XIII of the Constitution, which provides that “The general assembly shall pass no special act conferring corporate powers.”
In the case of Walker v. City of Cincinnati, 21 Ohio St., 14, an act authorizing cities of' the first class having a population exceeding 150,000 inhabitants to construct a railway, ' issue bonds for such purpose and levy a tax to pay such bonds, was held to be constitutional. In that case, however, the question whether the act then under consideration was a special act conferring corporate powers, was not made by counsel and was not considered by the court. It might also be added that Section 26 of Article II of the Constitution was also overlooked. However, the particular thing to which I desire to call attention is the pertinent fact that it was not even suggested in these cases, much less decided by the court, that the authority attempted to be conferred by these statutes did not come within the scope of governmental purposes.
It is a matter of general knowledge that practically all of the cities of this state, and of our •sister states, maintain a public recreation department; parks are maintained and beautified for the pleasure and recreation of the people; music is provided for their entertainment; municipal lodging houses, baths and bath houses are maintained, as well as other things of kindred nature, all tending not only to the betterment of immediate conditions, but also tending to the creation of higher ideals, and consequently a better citizenship. In this capital city of our state, immediately following the disastrous flood on the west side, the recreation department provided at public expense a moving-picture theater for the benefit of' the children of that unfortunate district until the schools could be reopened. Judge Dillon, in his work on municipal corporations, 5th ed., Section 21, calls attention' to the fact that municipalities in Great Britain, in addition to the enterprises in which our American cities are engaged, also own and operate ice manufactories, buildings for entertainment and music; engage in the sale and distribution of milk; engage in brick-making; maintain buildings and dwellings for laboring men, and other kindred commercial and altruistic enterprises.
It has been suggested that if the purposes of this moving-picture theater are educational, then any attempt of the municipal authorities to appropriate public money for such purpose is unconstitutional, for the reason that such matters come directly within the control of the board of education. I do not think this view is correct. While I do not believe any municipality has the -right to interfere with the established school system of this state, yet because a municipal project may be educational in effect is certainly no sound reason for holding that it does not come within the scope of the governmental powers of a municipality. The cities of this state, and the state itself, engage in many projects that are educational in their nature aside from the public school system, which is clearly within the control of boards of education.
It is further contended that this ordinance is in violation of Section 19 of Article I of the Constitution, which provides, among other things, that private property shall ever be held inviolate, for the reason that if municipalities are permitted to engage in such enterprises, private property may be confiscated by taxation. Section 13 of Article XVIII of the' Constitution' provides that laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes. This is full protection to the citizens and a complete answer to the suggestion. However, it may be said in passing, that if every beneficent purpose of government must be abandoned because taxes are to be levied upon some unwilling person, then we might as well prepare to abandon all plans of civic betterment, tear down our libraries and close our schools. It is said that it is of grave importance that public credit should be protected, particularly the credit of the municipal corporations of this state, and that the granting to municipalities the power to engage in such enterprises as this would impair that credit. This is a question largely for the municipality to determine, subject to the limitations of Section 13 of Article XVIII above referred to. Citizens should have enough interest in their own affairs to compel honest, efficient and economical administration of their local government. But if it be granted that neither the vigilance of the people nor the provisions of Section 13 of Article XVIII are sufficient safeguards to protect municipal credit, then the further answer may be made that the people themselves make the constitution and the courts are but instruments also created by the people to give effect to that constitution, and that, therefore, it is not the province of a court to inquire as to the wisdom or the folly of any provision, either of the law or of the constitution, but rather to interpret and enforce the same according to the meaning and intent of the authority creating it. It is entirely possible that different minds honestly searching for the truth may arrive at different conclusions as to the construction of any written constitution or of any law. This is fairly demonstrated by the fact that the members of this court, who have been equally industrious, honest and intelligent in their efforts to arrive at the true meaning and purpose of this amendment to our constitution, having no purpose to serve except to arrive at the right, are, nevertheless, evenly divided as to one proposition, and but a bare majority concur in the other. The peace of the state demands that the controversy arising from such difference of opinion must be submitted to the arbitration of a court for final determination, and if perchance this court should err in its judgment, these constitutional amendments themselves provide a ready means for the correction of that error.
It is contended in the brief of counsel for relator that it is not the intention of the city to embark on a private money-making enterprise and that it is not about to engage as a competitor with enterprises operated exclusively for profit, but that, when such theater is established, it will be used in a strictly public sense, to promote the education and the patriotism of the citizens generally, and to advance the understanding and appreciation of the individual civic responsibilities of each citizen. If that is, the fact, then these purposes should have been declared in the ordinance as the purposes for which the appropriation was sought to be made, without reference to the methods or the instruments to be used in the accomplishment of these purposes, but, so. far as this ordinance reads, it may or may not be operated for any public purpose whatever. In fact, it does not appear from the ordinance itself that this moving-picture theater is to be established in the city of Toledo. If it is to be established without the city of Toledo, of course, that is the end of the controversy, for by no possibility could such an enterprise be held to come within the powers of local self-government. It is true the ordinance designates a “municipal moving-picture theater,” and it might be argued that the use of the word “municipal” is sufficient indication that the theater is to be used for municipal purposes. But such things are not so common in Ohio that the mere use of the word “municipal” sufficiently defines or qualifies the nature and the purposes of the theater to be established. This designation, perhaps, is sufficient to show that it is to be established and operated within the limits of that city, and I think it only fair so to hold, but further than that no presumption obtains as to the purpose of this theater aside from these considerations; however, in the passage of this ordinance the municipal authorities entirely overlooked the general laws of the state now in force in reference to municipal corporations.
Section 2 of the act passed May 31, 1911 (102 O. L., S21), entitled, “An act to provide for the initiative and. referendum in municipal corporations,” provides, among- other things, that no ordinance involving the expenditure of money shall become effective in less than sixty days after its passage.
Section 3 of this act provides that any act not included within those specified in Section 2 may be declared to be an emergency measure, and may go into effect immediately. This ordinance is one involving the expenditure of money, and one that, by the provisions of ■ Section 2 of the act above referred to, shall not go into effect for sixty days after its passage. Therefore, the city council had no power or authority to declare this ordinance to be an emergency measure, to take effect immediately.
It is suggested that counsel have waived this defect. I do not understand either from briefs or oral arguments that any such waiver is intended or attempted. But whether it is attempted to be waived or not, it is sufficient to say that neither the auditor nor his counsel have any right or authority to waive the positive provisions of a statute designed for the protection of the taxpayer.
It is true this question is not of general importance, but the relator is asking for a peremptory writ of mandamus, and before such a writ can be issued its right to such a writ must be clear. Having held that these general statutes, not inconsistent with the amendment, are the general statutes contemplated and comprehended in the provisions of Section 2 of Article XVIII, it follows that to be consistent they must be given application to this particular case, but, of course, not for the purpose of evading the real questions presented. .
For the reason, therefore, that this ordinance does not show on its face that this appropriation is for the public purposes mentioned in counsel for relator’s brief, or any other public purpose, and for the further reason that the city council has no authority to declare a resolution or ordinance involving the expenditure of money an emergency measure, and for no other reason, I concur in the judgment refusing the writ.
Wan am aker, J.,
dissenting. I decisively dissent, not only from the judgment in this case, but also the syllabus, as well as the majority opinion by which it is sought to sustain such judgment and syllabus.
A decent regard for the inherent importance of-the questions involved and the widespread state and national interest in the same, as well as a due respect for the majority opinion, demand more than a brief statement of the grounds of disagreement.
Let us start from some generally admitted ancient landmarks as to which we are aptly admonished in the Ohio constitution of 1802, Section 18 of the Bill of Rights: “That a frequent recurrence to the fundamental principles of civil government, is absolutely necessary to preserve the blessings of liberty.”
■ The cornerstone of American government is found in that fundamental principle: “All political power is inherent in the people.” Constitution of Ohio, 1802, Bill of Rights, Article VIII, Section 1; Constitution of Ohio, 1851, Bill of Rights, Article I, Section 2.
A few primary principles of political power and good government from the American viewpoint may furnish common ground for our consideration and help to clear some hazy notions as to political rights and powers, to the end that we may better understand the present status of our Ohio cities and villages.
In every American municipality to-day there are being exercised three distinct and differentiated kinds of political power:
First, municipal, that deals with purely municipal affairs; second, state, that deals with purely state affairs; third, national, that deals with purely national affairs.
The national power is now and always has been supreme in its own proper jurisdiction.
The state power is now and always has been supreme in its own proper jurisdiction.
The municipal power—quaere—but why not supreme in its own proper jurisdiction?
In point of time, which of these three great political powers was first in existence and operation—national, state, or municipal?
Manifestly, all must agree that we had towns, villages and cities exercising the powers of local self-government a long time before we had a state to exercise the state power or a nation to exercise the national power. This historic fact is so self-evident that it would seem unnecessary to support it’ by distinguished authority. However, to please those who pride themselves on precedent, let .us note the following very eminent authorities: Cooley’s Const. Lim. (7 ed.), 65; 1 McQuillin on Munic. Corps., 156; 1 Dillon (5 ed.), Sec. 14, et seq.; C. W. & Z. Rd. Co. v. Commissioners, 1 Ohio St., 77; Cass v. Dillon