
    City of East Cleveland v. Board of Education of City School District of East Cleveland.
    
      Municipal corporations — -Free water for public schools — Section S96S, General Code — Constitutional law — Statute constitutional by concurrence of two judges of supreme court.
    
    1. Courts, 15 C. J. § 362; Municipal Corporations, 28 Cyc. p. 701; Waters, 40 Cyc. p. 796 (1926 Anno.)
    (No. 18738
    Decided May 26, 1925.)
    Error to the Court of Appeals of Cuyahoga county.
    Mr. E. A. Binyon, director of law, for plaintiff in error.
    
      Mr. C. C. Crabbe, attorney general, Mr. Arthur H. Wicks, Mr. David E. Green and Messrs. Griswold, Green, Palmer & Hadden, for defendant in error.
   Jones and Day, JJ.

The conclusion reached Ly the majority of the court finds that Section 3963, General Code, in so far as it relates to furnishing water “for the use of the public school buildings in such city or village” without charge, is unconstitutional. There being less than six judges of that opinion, the Constitution of the state requires that the judgment of those not concurring shall be controlling, and for that reason the views of the minority are set forth.

The petition seeks to recover for water furnished the schools of East Cleveland school district, and claims this right by virtue of Sections 3, 4 and 7, Article XVIII of the Constitution. A demurrer to the petition was filed, which was sustained by the court of common pleas and affirmed by the Court of Appeals. This action is brought to reverse the judgment of the Court of Appeals.

The basic question is: May an ordinance of a municipality establish, a rate and require payment for water used by the board of education for the public schools, other than at the rate allowed and provided for in Section 3963, G-eneral Code?

It is quite true that the petition does not affirmatively show that the efficiency of the public schools of the East Cleveland school district will be affected, but, the question submitted being one of power, we deem it immaterial that the petition makes no- affirmative averment in that regard, because it is apparent that if the act of the Legislature! in regard to the maintenance and upkeep and welfare of the public schools is to be subordinate to the ordinances of a charter city, claiming its power under Sections 3, 4, and 7, Article XVTÍI of the Constitution, it follows that this is an invasion of the long established and sustained policy of the state in regard to the maintenance of its public school system.

We think the basic question then is : Shall the municipality control the public schools within its limits, or does that power rest ini the state?

The Ordinance of 1787, in Article III, made provision :

“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

Section 3, Article VIII of the Constitution of Ohio of 1802, made like provision in the language following:

“But religion, morality and knowledge, being essentially necessary to good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision.”

In the Constitution of 1851, Section 7 of Article I is as follows:

“Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws, * * * and to encourage schools and the means of instruction.”

Section 2, Article VI, is as follows:

“The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state. * * *”

Section 3, Article VI, is as follows:

“Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds * *

This court in numerous decisions has recognized this state control of the school system of the state. Board of Education v. Volk, 72 Ohio St., 469, 480, 74 N. E., 646, 648:

“Moreover while boards of education are ‘bodies politic and corporate,’ as declared by statute, yet like counties,, they are but quasi corporations, and differ materially from municipal corporations as they are organized in this state. School districts are organized to promote education and carry into effect the provision of section 2 of article 6 of our state constitution. * * * Boards of education for these school districts, are arms or agencies of the state for the promotion of education throughout the state, while ‘municipal corporations are called into existence, either at the direct solicitation or by the free consent of the people who compose them.’ ”

At page 485 (74 N. E., 650), speaking of the property controlled by the board of education, the court further said:

“It is not the private property of the board, but it is authorized to hold it for the state for the promotion and advancement of the education of the youth of the commonwealth, and its control is limited according to the will of the sovereign power. The board is a mere instrumentality of the state to accomplish its purpose in establishing and carrying forward a system of common schools throughout the state.”

In the case of Miller v. Korns, Aud., 107 Ohio St., 287, at page 297, 140 N. E., 773, 776, it was said:

“This declaration is made by the people of the state. It calls for the upbuilding of a system of schools throughout the state, and the attainment of efficiency and thoroughness in that system is thus expressly made a purpose, not local, not municipal, but state wide. With this very state purpose in view, regarding the problem as a state wide problem, the sovereign people made it mandatory upon the general assembly to secure not merely a system of common schools, but a system thorough and efficient throughout the state.”

Other decisions might be cited to the same effect, to wit, that the state has most jealously exercised this power to create and maintain a system of public schools, and the result has been one of which the state may well be justly proud. The result in no small measure has been attained by this- exercise of sovereign power by the state through a carefully -organized and administered system of public schools. We do not believe that the home-rule provisions of the Constitution, as expressed in Article XVIII of the amendments of 1912, were ever intended by the people to- authorize municipalities to invade this field or detract from this power of the state to secure a thorough and efficient system of public schools throughout the state. That school laws are of general operation throughout the state has been recognized. This court, in State ex rel. v. Spellmire, 67 Ohio St., 77, 65 N. E., 619, held:

“The subject-matter of schools, including school districts, and establishing and changing the same, is of a general nature ; and all legislation as to them must be general, having a uniform operation throughout the state.”

Section 3963 is manifestly a law of general operation, and is clearly within the purview of Section 26, Article II of the Constitution,, and is a provision for á system of public schools, within the purview of the constitutional requirement that every encouragement should be giveni to- their maintenance and upkeep. If the municipality, under the guise of local self-government, may deprive the state of the right to thus contribute to the upkeep of its schools by making provision for water service, may it not extend the same power in other directions 'affecting the maintenance and control and dominion over the public school system?

This conflict of power between the sovereignty of the state, speaking through laws of general operation throughout the state, in a matter committed to it by the Constitution, and the- municipality, seeking to exercise its powers of local self-government, must result in the upholding of the sovereignty of the state, or the result will be such a lessening of power in the state and assumption thereof by municipalities, under the guise of local self-government, as will deprive the state of all sovereignty guaranteed it by the Constitution.

This court in a recent case by unanimous decision recognized the doctrine that a municipality is without power to thwart the operation of a general law by the enactment of an ordinance which interferes with the execution of such general law. The case in question is Niehaus v. State ex rel. Board of Education, 110 Ohio St., 47, 144 N. E., 433, and construed the act of the General Assembly, passed April 28, 1908, 99 Ohio Laws, '232, wherein provision was made with reference to the powers of the chief inspector of workshops and factories in the matter of public schools. This was a law of general nature, and of uniform operation throughout the state, and is embodied in the General Code as Section 1035. The question of the conflict of said section and an ordinance of the chartered city of Dayton was before the court for consideration, and the syllabus of that case is as follows:

“1. Section 1035, General Oode, which, requires the building inspection department of municipalities having ia regularly organized building inspection department to approve the plans for the erection of a public school building, is a state police regulation, and the power of the General Assembly to enact such legislation is in no sense abridged by the provisions of Section 3, Article X'YIII of the Constitution of Ohio.
“2. The General Assembly of the state having enacted a general law requiring the building inspection departments of municipalities having a regularly organized building inspection department to approve plans for the construction of public school buildings erected within such municipalities, a municipality is without power to thwart the operation of such general law by the enactment of an ordinance requiring the payment of a fee as a condition precedent to compliance therewith."

In the opinion at page 52 (144 N. E., 434), the following is found:

“The status of a municipality in its relation to the sovereign state is not different, by reason or because of the adoption of Section 3, Article XVIII, granting to 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, than it was prior to the adoption of that provision, or would be in case of its repeal.
“That section of the Constitution grants to municipalities all powers of local self-government and such local police power as is not in conflict with general laws; in other words, where, prior to the adoption of the amendment, such powers were granted by the sovereign state, through its legislative body, subject to withdrawal by the state through its legislative body, the power now is granted by the sovereign people of the state, subject to withdrawal by the sovereign people; but the sovereignty of the state over the municipality is not divested by that provision, nor does the power of the sovereign to administer public affairs end at the corporation line. The only feature of the sovereign power which is surrendered by the so-called ‘home rule’ provision of the Constitution is that which relates solely to local government. Neither the municipality nor its officers tire relieved 'of any obligation which other political subdivisions and other officers owe to the state, except in the matter of local self-government, and such municipalities and their officers are still agencies of the .state, acting in behalf of that portion of the state in which they have jurisdiction, ’While within its own boundaries, within the limits of the grant, it executes the functions and possesses the attributes of sovereignty, and to that extent as against its citizens and all persons within its jurisdiction has the rights and immunities of the sovereign, yet as against the sovereign it is but an agent whose powers may be withdrawn at the will of the sovereign that granted them. Hence, the power to exercise sovereignty in local self-government, and local police power not in conflict with general law, does not confer upon municipalities the power to enact and enforce legislation which will obstruct or hamper the sovereign in the exercise of a sovereignty not granted away.”

Our attention is called to the case of Village of Euclid v. Camp Wise Ass’n., 102 Ohio St., 207, 214, 131 N. E., 349, in which the provision of Section 3963, with reference to water furnished to charitable institutions devoted to the relief of the poor, aged, infirm, or destitute persons, or orphan or delinquent children, was held to be unconstitutional. The reasons for that opinion are not the same as may be urged in support of that portion of Section 3963 which relates to public schools, the latter being so securely based upon constitutional provision and requirement. We are therefore not disposed to regard that case as in conflict with the provision of Section 3963 which relates to supplying “Water for the use of public school buildings in such city or village.”

Since the constitutional provisions referred to specifically relate to our public schools and charge the General Assembly with the duty of passing “suitable laws” and making provisions “by taxation, or otherwise, * * * as will secure a thorough and efficient system of common schools throughout the state,” plenary powers of control and maintenance of our common schools were thereby granted to the state, and not to its municipalities. . No mention of our public school system is contained in Section 4, Article XVIII of the -Constitution. That section relates simply to municipalities, and authorizes certain contracts to be made in behalf of such “municipality or its inhabitants.”

Entertaining the view that in the light of the foregoing decisions of this court, and the provisions of the 'Constitution, Section 3963, General Code, is a proper exercise of legislative power, in so far as it relates to the furnishing of water for the use of public school buildings in cities and villages, that it is a law of general operation throughout the state, our conclusion] is that it is not in conflict with the Constitution of the state, and the same should be upheld. Our decision is, therefore, that the court of common pleas and the Court of Appeals were right in sustaining the demurrer, and their judgment in that behalf is therefore affirmed.

Judgment affirmed.

Marshall, C. J.,

dissenting. "When in the course of human events it becomes necessary for the majority of the Supreme Court of Ohio to differ from the judgment pronounced by the minority, and to assume the separate though inferior station to which the amendment of 1912. has consigned them, a decent respect to the opinions of the bench and bar of the state requires that they should declare the causes which impel them to the separation. The minority judgment in this cause, upholding the constitutional validity of that portion of Section 3963, which in terms requires municipalities to furnish water to- the public schools without charge therefor, is predicated upon the following fallacious proposition stated in the opinion:

“We tbinlr the basic question then is: Shall the municipality control the public schools within it3 limits, or does that power rest in the state?”

If this were the issue involved in this controversy, the judgment of this court would undoubtedly be unanimous in declaring that the control of the public schools rests primarily in state supervision and control. Every member of this court recognizes the pertinent provisions of Sections 2 and 3, Article VI of the Constitution, requiring the General Assembly to pass laws making provision for a thorough and efficient system of common schools throughout the state, and every member of this court agrees that the thorough and efficient system which has been provided by legislative enactment has application in every municipality of: the state, and that no board of education in any municipality, and no legislative authority of any municipality, has any power to override or disregard any of the constitutional legislative provisions pertaining thereto. It is true that this court by unanimous judgment has recently so declared in the case of Niehaus v. State ex rel., 111 Ohio St., 47, 144 N. E., 433, which decision was pronounced by this court on June 17, 1924, and every member of this court agreed that the provisions of Section 3, Article XVIII of the Constitution, as amended in 1912, giving to municipalities all powers of local self-government, were not intended to and did not in fact override or control the provisions of Sections 2 and 3 of Article VI of the Constitution. Whatever differences of opinion have existed in the views of the several members of this court upon the subject of municipal home rule, there has never been any difference of opinion, and the pronouncements of this court have been entirely harmonious and consistent, upon the proposition that local self-government has no relation to the administration of the common schools of the state. The majority of this court are of the opinion that the minority judgment is unsound because it is based upon a false premise and assumes an issue in no' wise related to the controversy. The majority respectfully claim that this controversy is controlled, not by Section 3 of Article XVIII, pertaining* to home rule, but by Section 4 of Article XVIII, pertaining to ownership, operation, and control of public utilities. There has not heretofore been any difference of opinion in the pronouncements of this court as to the meaning and application of Sections 4, 5, and 6 of Article XVIII of the Constitution as amended in 1912. There ha.s heretofore been perfect unanimity and harmony upon the proposition that by those amendments certain utilities within the state of Ohio have been placed within the entire control of the municipalities within whose boundaries their operations have been carried on.

It is the spirit of the unanimous decision of this court in the case of Village of Euclid v. Camp Wise, Assn., 102 Ohio St., 207, 131 N. E., 349, that whereas, prior to the amendments of 1912, all authority to a municipality to own and operate public utilities was derived from the Legislature, after those amendments, and by reason of their adoption, the authority came direct from the people, entirely absolved from any conditions or restrictions theretofore imposed or which might thereafter be imposed. The first paragraph of the syllabus of that case, which received unanimous concurrence, is as follows:

“By reason of the adoption of Section 4, Article XVIII of the Constitution, in 1912, municipalities may acquire, construct, own, lease and operate waterworks free from any restrictions imposed by Sections'3963 and 14769, General Code.”

It did not seem to the court at that time that Sections 2 and 3 of Article XVIII had any bearing upon the case, because they are general sections, and it seemed that Section 4 being a special provision pertaining to utility service the special provision became paramount over the general provisions. The present controversy is not different in that respect. The pertinent parts of Section 4 provide:

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service.”

This delegation of power to a, municipality directly from the hands of the people is plain, unambiguous, and unequivocal, and it is free from conditions; it isi apparently seif-executing, requiring no enabling legislation to complete the grant of power. Any legislation relative to this subject must nece-ssarily be confined to regulatory measures. The majority of the court are therefore of the opinion that any attempt by the Legislature to impose conditions upon the grant must be ineffective. We are not declaring the entire statute unconstitutional, because the second paragraph of the section is clearly regulatory.

In the case of City of Cincinnati v. Roettinger, a Taxpayer, 105 Ohio St., 145, 137 N. E., 6, there was presented to this court the question whether the city of Cincinnati could increase the water rates, thereby raising a surplus of revenue, and thereupon transfer such surplus to the general fund of the city to be used for general governmental purposes. It was held by this court in that case that that could not be done. The city of East Cleveland is seeking to do an exactly opposite thing by requiring a portion of the revenues for supply of water to be raised by direct taxation. The principles declared in the Cincinnati case are not contrary to the conclusions we have reached in this case. We have read Sections 4, 5, and 6 of Article XVIII of the Ohio Constitution in vain to find any provision of the Constitution which prevents the taxing authorities of the city from raising part or even all of the revenues to pay for water by direct taxation. The entire matter of a supply of water for the inhabitants and institutions of East Cleveland, including the public schools, being within the control of the city, that control must rest, under the charter of the city of East Cleveland, in its city commission. It having seen fit to adopt .an ordinance clearly covering the situation, the judicial branch of the government may not stay its hand.

It has already become painfully apparent to the officers of all branches of the state government that there is much conflict between different parts of the amendments of 1912, and other conflicts between those amendments and those parts of the Constitution which were earlier adopted. The instant controversy is one of less difficulty, because it does not appear by any pleadings that the obligation of paying for a supply of water would interfere with an efficient school system in the city of East Cleveland. 1

If this were an attempt on the part of the commission, as the legislative authority of the city of East Cleveland, to prevent a supply of water being furnished to the public schools of that city, or an interference in any other manner with the enforcement of the provisions of any section of the school code, whereby the present efficient school system of the state would be impaired in the slightest measure, the minority opinion referring to Sections 2 and 3 of Article VI of the Constitution would be applicable and pertinent. The real issue in this controversy must be determined by am examination of the pleadings. This is an action for money, brought by the city of East Cleveland against the board of education of East Cleveland, to recover a judgment for water furnished to the school buildings within the city of East Cleveland for a certain period, it being alleged that the city is a charter city, and that, pursuant to the powers enumerated in its charter, it passed an ordinance on February 19, 1918, directing and authorizing the city manager to collect water rent from certain persons and boards, including the schools. It is sought to recover for water furnished to the schools at the same rates that water is furnished to other consumers within the city of East Cleveland. The issue is raised by a demurrer to the petition. We therefore respectfully urge that there can be no such issue in this case as the minority of the court have made the basis of their opinion. There can be no possible question as to how the schools will be managed and conducted. The sole question is as to the manner of raising the revenues to defray the cost of supplying the school buildings with water. The board of education declines to make a levy upon all the taxable property of the city, as it would have a perfect right to do, for the purpose of meeting the expense of supplying water, and invokes the aid of Section 3963, General Code, which forbids the city from making any charge whatever for water for the use of the public school buildings. The legislative authority of the city, acting upon the unanimous declaration of this ©ourt construing Sections 4, 5, and 6 of Article XVIII of the Constitution, in Euclid v. Camp Wise Assn., supra, has declared as the sound legislative policy of the city of East Cleveland that it is better to raise the revenues for supplying water for the use of the public school buildings of the city by a tax levy upon property. Manifestly, the minority judgment of this court in this case cannot be sound unless the judgment of the court in Euclid v. Camp Wise Assn., supra, is unsound.

In the opinión of the majority of this court, Section 39'63 should be declared to be unconstitutional, or at least that portion thereof which requires the city to furnish water to the schools without charge therefor, and the judgment of the Court of Appeals should be reversed.

Matthias, Allen, Kinkade and Robinson, JJ., concur in the dissenting opinion.  