Citations
- 98 Ohio St. 358
Full opinion text
Donahue, J.
The disposition of this case involves a construction of Section 3 of Article XVIII of the Constitution of Ohio, as amended September 3, 1912, which section confers upon municipalities 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.
It is not only conceded, but insisted by counsel for the city of Cleveland, that the authority to fix rates that may be. charged for service rendered or commodity furnished by a public utility, is an exercise of police power.
This is necessarily true. If it were not, then neither the city nor the state would have authority to fix such rates. On the contrary, the amount to be charged would be the subject of private contract.
It is contended, however, that police power, in the narrow sense of the term, means power to prescribe regulations for health, safety, and morals, and that the term “police regulations,” as used in Section 3 of Article XVIII of the Constitution, relates only to this narrow definition of police power; that the authority conferred by the constitution upon municipalities, to exercise all powers of local self-government, necessarily includes as incident 'thereto police power in the broader sense of that term, which authorizes the fixing of rates that may be charged by public utilities.
If it were conceded that police power may be restricted to this narrow meaning in one instance and given a broader meaning in another, it must follow that police power in the larger sense of the term would include the narrower or restricted meaning. In other words, the whole necessarily includes all its parts. This construction would make the further provisions of Section 3 of Article XVIII meaningless.
However that may be, there is no apparent reason whatever why the constitution should delegate to municipalities full authority to exercise police power in the broader sense of the term and then limit and restrict them in the exercise of local police power.
The exercise of local police power is of vital importance to large centers of population. If police powers may be divided along the lines suggested, it is of far more importance to municipalities that they should have authority to exercise local police power untrammelled by the general laws of the state, than that they should have absolute right to exercise the police powers included in the broader definition suggested by counsel for the city of Cleveland, yet Section 3, Article XVIII of the Constitution, does limit and restrict municipalities to the exercise of local police power in conformity with the general laws of the state.
Police power, however, cannot be divided along these lines or any other lines. There is no such, thing as municipal police power as distinguished from state police power. Such a proposition is too absurd to require argument to the contrary. Counsel make no such claim. Every court in Christendom since the establishment of civilized jurisprudence, without a single dissenting voice, has held that police power is a power that inheres only in the sovereign. Municipalities are not independent sovereignties, and therefore can exercise only such police power as the sovereign people of this state have in the constitution of Ohio delegated to them, and these powers must be exercised in the manner and form the constitution provides. If they were independent sovereignties, there might be some force in the contention that they possess inherent police powers incident to sovereignty, especially if the constitution imposed no limitations upon the exercise of that power, but even the most ardent supporters of independent sovereignty in the constitutional convention were obliged to abandon that idea. (2 Constitutional Debates, page 1456, column 2.) That question, however, is fully settled in the case of Billings v. Cleveland Ry. Co., 92 Ohio St., 478, 485, in this language:
“There is no imperium in imperio, except in the sense that by the approval of the state the city exercises part of the sovereign power under the limitations imposed.”
While in this state, to meet the needs of urban districts, local police powers have uniformly been delegated to local authorities to be exercised in conformity with general laws, nevertheless, police power is an attribute of sovereignty, and the exercise of that power largely within the discretion of the sovereign state. •
This discretion, however, is fraught with danger to the personal and property rights of private individuals, and courts have uniformly interfered to restrain the arbitrary and unreasonable exercise of that power to the prejudice of private rights guaranteed by the constitution of the state. Mirick v. Gims, Treas., 79 Ohio St., 174, and Interurban Ry. & Terminal Co. v. Public Utilities Commission, ante, 287.
It is hardly within the range of possibility, much less probability, that the people of this state intended to vest in the many municipalities of Ohio discretion to exercise unlimited and unrestricted police power. The fact that the constitution does not confer such power in express words, is in and of itself sufficient to show that it was not the intent or purpose to do so. Especially is this true, in view of the fundamental doctrine announced in paragraph 3 of the syllabus in the case of State, ex rel. City of Toledo, v. Cooper, Auditor, 97 Ohio St., 86; but if this were not sufficient, the fact that the constitution itself expressly limits municipalities in the exercise of police power, certainly ought to end all controversy on that subject.
In the case of State, ex rel. City of Toledo, v. Cooper, Auditor, supra, this court held that under the express provisions of Section 6, Article XIII, and Section 13, Article XVIII, of the Constitution of Ohio, the power of municipalities to levy taxes may be limited or restricted by general laws.
Paragraph 3 of the syllabus in that case reads as follows:
“Taxation is a sovereign function. The rules of liberal construction will not apply in cases where it is claimed a part of the state sovereignty is yielded to a community therein. It must appear-that the people of the state have parted therewith by the adoption of a constitutional provision that is clear and unambiguous.”
The exercise of police power is also a sovereign function, and therefore the .same rule of construction must apply.
It was strenuously urged by counsel for the city of Toledo that the right to levy taxes is vital to government and that the grant to municipalities, in Section 3 of Article XVIII, of authority “to exercise all powers of local self-government,” necessarily includes authority to levy taxes without interference upon the part of the state; notwithstanding Section 13 of Article XVIII specifically authorizes the general assembly of Ohio to limit by law the power of municipalities to levy taxes and incur debts for local purposes, and to require reports from municipalities as to their financial condition and transactions, and provides for the examination of the vouchers, books and accounts of all municipal authorities, or of public undertakings conducted by such authorities. In this case exactly the same contention is made with reference to the right of municipalities to exercise police power independent of state control. The limitation in the constitution of the exercise of this power, however, is just as plain'and positive as the limitation upon its power to levy taxes. ■
The case of Interurban Ry. & Term. Co. v. Public Utilities Commission, supra, also involved the question of the jurisdiction of the utilities commission over public utilities within municipalities. In that case the court held that the state cannot be deprived of its right to the proper exercise of police power, and none of its subdivisions can bind itself by contracts which are or which may become deleterious to the peace, order, health or morals of the people; but that when the terms of a valid ordinance granting a franchise to a street or interurban railway company are accepted by the grantee, such action constitutes a contract between the parties, and as long as the company retains the franchise and operates its road thereunder its terms must control.
In the opinion in that case it is said:
-“Many authorities are cited in support of the proposition, which is familiar and well settled, that the state itself cannot by contract deprive itself of the proper exercise of police power. Its elastic and undefined nature is everywhere recognized, as well as the limitation upon its exercise as against rights guaranteed and protected by the constitution.”
In view of these authorities, and particularly in view of the provisions of the bill of rights as written into Article I of the Constitution of Ohio, no mere presumption that the people of Ohio intended to divest the sovereign state of its control of the exercise of police power by the municipalities of this state can obtain. Certainly not where the constitution in terms provides that municipalities must exercise local police power in conformity with the general laws.
To hold that Section 3 of Article XVIII of the Constitution confers upon municipalities authority to exercise police power by local police regulations in conflict with the general laws of this state, notwithstanding the express provision of this section to the contrary, would be not only in disregard of every rule of construction heretofore established or recognized by this court, but the court, under the pretense of construction, would in fact be writing a new and different constitution of Ohio. This court has no desire or intention to assume such responsibility or usurp such power.
If there were any doubt, however, as to the correct interpretation of Section 3 of Article XVIII, that doubt is wholly removed by Section 4 of the same article, which expressly authorizes municipalities to contract with public utilities for the product or service which is or is to be supplied to the municipality or its inhabitants. If Section 3 grants to municipalities authority to exercise police power in conflict with the general laws of this state, and in the exercise of that power municipalities can fix an arbitrary rate that public utilities may charge for product or service supplied to the municipality or its inhabitants, then of course there would be no necessity for contract; and there never would be any such contract, for the municipality would arbitrarily fix the price, and the utility would be compelled to accept the same. Therefore, this constitutional grant of power to municipalities to contract with utilities precludes the idea that the municipality has the power to fix such arbitrary price, regardless of the consent of the utility.
Certainly it was not the intention of the members of the constitutional convention, or of the electors of this state, to perpetrate such a monumental folly as to “authorize municipalities in one section of the constitution to fix arbitrarily a price that utilities might charge for a product or service and in another section authorize municipalities to contract with utilities, for in such case the entering into a contract would be a wholly useless performance on the part of a municipality.
It is clear from the constitutional debates that the members of the constitutional convention that framed the home-rule provision did not so understand it. The chairman of the committee that-drafted and presented to the convention these amendments to the constitution, speaking in reference to these amendments (2 Constitutional Debates, page 1456), said:
“If you will read this proposal carefully you will see that the state is dominant. The great powers of taxation, the great police power, and the great powers of education and of health, all are held with a firm hand by the state. You may liken the power of the state to a bank note, through which the silken threads run strong and firm giving pliability but not permitting disintegration. That is the fundamental underlying principle of the proposal which you have to consider. The state is dominant in those principles in which, in the judgment of the committee, it should be dominant. Municipalities are given the greatest possible freedom, all of course protected and hedged in by these general fundamental principles.” In view of this plain, unchallenged statement