
    Common Pleas Court of Washington County.
    Burns, a Taxpayer, v. City of Marietta et al.
    Decided May 6, 1929.
    
      T. J. Summers, and Strecker & Williamson, for plaintiff.
    
      T. Blake Summers, city solicitor, Squire, Sanders $ Dempsey, and Metcalf & Ogle, for defendant.
   COWEN, J.

This case was submitted for final determination, beginning on the third and ending on the fifth days of April of this year and it is regretted that a final determination, as far as this court is concerned, could not sooner be reached.

The time that has elapsed, however, between the time of hearing and the reaching of the final determination was necessary, when the various complicated questions and the proportions of the record are taken into consideration.

The briefs of counsel were necessarily long and involved considerable research. The first brief, consisting of twenty-five pages, reached this court on the 15th of April, the next brief filed by the defendants containing 39 pages reached the court about a week later,-and the reply brief which was the last brief filed, reached the court on the 23d day of April.

Some few days later the transcript of testimony reached this address. All of these necessary delays made it impossible to come to a conclusion at an earlier date.

The action was brought by one who alleged himself to be a taxpayer on behalf of the city of Marietta.

According to the allegations in the petition and according to the facts, Mr. Burns, the plaintiff, first requested the city solicitor to bring the suit, which request was refused.

The complaint in the petition is that defendant M. C. Russell, as director of public service has advertised for bids to be received at his office until 12 o’clock noon on Tuesday, March 12, 1929, for furnishing certain machinery, labor and materials for changing, rebuilding and improving the waterworks system of the city of Marietta in accordance with the plans and specifications referred to in the petition and in pursuance of the provisions of the ordinance No. 78 and also the said' defendants have advertised and have offered for sale $55,000 of bonds as set forth in ordinance No. 79, bids for which- are to be opened on March 18, 1928, at 12 o’clock noon and that said defendants'will open said bids for furnishing said machín-ery, labor and material and for said bonds. They will accept bids and award contract for furnishing said machinery, labor and material, and they will sell said bonds and will take further steps for the carrying out of the provisions of said ordinances Nos. 78 and 79 unless prevented from so doing by intervention of the court.

The plaintiff then asks that the defendants be restrained from so doing.

The plaintiff further asks that ordinances Nos. 78 and 79 may be adjudged to be invalid, null and void.

The answer of the defendants is, in effect, a general denial. A number of irregularities are pointed out in the petition and it is claimed in the petition that these irregularities, if they exist, are of. such a character as to render it necessary to set aside and nullify the ordinances referred to.

It becomes necessary then to review the proceedings which lead up to the attempted sale of bonds and letting of contracts, to ascertain whether there were any irregularities and if so whether or not they were of such a nature as to authorize all or any part of the relief asked for in the petition.

On the 19th of April, 1926, the mayor of the city named three citizens of Marietta, who together with the mayor and the director of public service were to constitute the waterworks commission to investigate and report on the conditions of the Marietta waterworks plant, its physical and financial condition, also the advisability of the creation of an electric plant in connection.

On the 20th of December, 1928, the mayor abolished the waterworks commission and dismissed the three gentlemen appointed from their duties as such waterworks commission.

Taking the questions in chronological order, the first criticism that the petition makes of the proceedings has to do with the appointment of a waterworks commission. The commission reported adversely to the construction contemplated, and it is claimed upon the part of plaintiff, if not directly in the petition, at least inferentially, that such a finding controlled.

It is claimed, on the other hand, first that the commission was not appointed in accordance with the statute authorizing the appointment of the commission, and secondly that even if the defendant is wrong in this contention the commission was discharged by the mayor and that the mayor had authority so to do, on the theory that the one who creates has authority to discharge.

In order to consider this question it is necessary to first consider the statute which authorizes and provides for the commission. It is agreed by counsel on both sides that if the mayor had authority to appoint such commission such authority is derived by provisions of the General Code, Section 4345-1, as such section existed at the time the appointment was made.

This section reads as follows:

“When a city has in contemplation the construction or rebuilding of a public hall, municipal water works system, municipal electric lighting system, or the rebuilding in whole or in part, and combining of a municipal water works system and a municipal electric lighting system, the mayor of said city may appoint a commission consisting of the mayor, the director of public service, and three electors of the city, subject to the approval of the board of control of such city. Such commissioners may contract, in the name of the city, for and supervise the building, or rebuilding and furnishing of such city hall, or the building, rebuilding, furnishing and equipping of such municipal water works system, municipal electric lighting system, or the rebuilding in whole or in part, and combining of such municipal water works system with municipal electric lighting system as aforesaid, and subject to like approval, may acquire the necessary lands for such purpose, either by purchase or appropriation, in the name of the city in the manner provided by law. The commission shall adopt plans and specifications for erecting, building and furnishing such public hall, or for the building, furnishing and equipping of such municipal water works system, municipal electric lighting system, or rebuilding the same, or for the rebuilding in whole or in part, and combining of a municipal water works system, with a municipal electric lighting system. Such commission may appoint a secretary and other necessary employes, and, subject to the approval of the council of the city, fix their compensation. The commission shall serve without compensation. The expenses of the commission shall be paid in like manner as the cost of such public hall, or the costs of the above named public utilities. Except as herein otherwise provided, the making of and terms of all contracts for the construction, furnishing and equipping of such public hall, municipal water works system, municipal electric lighting system, or the rebuilding in whole or in part and combining of any municipal water works system with a municipal electric lighting system, shall be governed by the laws relating to public buildings in cities.”

It probably will be conceded that the mayor has no power under this section other than the ones described and defined in the section itself. It is therefore necessary to examine the section to ascertain for what purpose a commission of the kind and character described in the statute may be appointed. It may be well enough to note in connection with this thought the title of the section. It reads as follows:

“Commission to construct, rebuild, combine, etc., public utilities; how composed; powers and duties; expenses.”

The section itself defines the purpose for which this commission may be created as follows:

“Such commissioners may contract in the name of the city for and supervise the building or rebuilding and furnishing of such city hall, or the building, rebuilding, furnishing and equipping of such municipal water works system, municipal electric light system, or the rebuilding in whole or in part and combining of such municipal water works system with municipal electric lighting system as aforesaid; may acquire the necessary lands for such purposes either by purchase or appropriation.”

Other duties are prescribed for the committee in the statute, but in no place do I find the prerogative given to such commission to decide whether or not the improvement contemplated is necessary.

It may further be noticed as bearing upon this question that the subdivision under which this section is found is entitled “supervision of building.” General Code Section 4328 places the duty, responsibility and prerogatives of a construction which costs in excess of $500 and does this in no uncertain terms. It provides:

“When an expenditure within the department other than the compensation of persons employed therein, exceeds $500, such expenditure shall first be authorized and directed by ordinance of council.”

It is important now to examine more particularly the entry of the mayor in which it is purported that he appointed the commission.

This entry reads as follows; this extract from the may- or’s record, volume 2, page 9, appears as Plaintiff’s Exhibit “A.” It reads as follows:

“Marietta, Ohio, April 19, 1926.
“The Mayor this day named Dr. J. C. Swan, W. F. Meister, Frank J. McCauley, who together with the mayor and the director are to constitute a water works commission to investigate and report on the condition of the Marietta water works plant, its physical and financial condition. Also the advisability of the creation of an electric plant in connection.
John W. Gray, Mayor.
James F. Hovey,
Clerk.”

It is true that such a commission is contemplated by the statute, that is, a waterworks commission. It is equally true that the statute does not authorize the creation of this committee for the purpose designated in the appointment itself, that is, not for the purpose of investigating and reporting on the condition of the waterworks or the advisability of the creation of an electric plant in connection therewith. The duty of such committee begins, if the statutory provisions are to be followed, after such questions are decided upon. They must be decided upon by the authority fixed by statute. The mayor cannot go beyond dr without the limitations fixed by the section. If this be true then one of two other things are true. Either the appointment was wholly illegal and a commission never was created as contemplated by statute, or else having been created, the duties prescribed for this committee in the appointment must be ignored and the duties as prescribed by the statute read into the appointment.

It is claimed by the plaintiff, and the evidence shows it to be a fact that this committee recommended against the improvement.

From this fact the conclusion is drawn by the plaintiff that the action taken by council in providing for the improvement is void.

For the purpose of solving this question it does not matter whether the commission was legally appointed or whether, having been legally appointed, the duties described in the appointment are replaced by the duties fixed by statute.

In either event the recommendation of the commission is not controlling.

Some two years later this commission was dissolved by the mayor..

The question then arose whether or not the mayor had the right to discharge members of the commission.

This question was discussed very learnedly and very exhaustively by counsel on both sides, the plaintiff contending vigorously that the mayor had no such right, unless proper cause was shown after written notice. The defendant argued just as insistently that the mayor had such right. The view that this court takes on the question of the powers and duties of the commission' eliminate the necessity, as far as results are concerned, of passing upon the question of whether or not the mayor had authority to discharge this commission, if in fact it had been legally created.

In the event, however, that the court may be wrong in the conclusions reached upon the question of the duties of the commission, it might be best that he give his views upon the question of whether or not the mayor, having created the commission, if he did create the same according to law, had also the right to remove the commission.

It is not seriously disputed in the briefs of counsel that the appointing power had such right, unless there is a statutory provision or statutory provisions prescribing another method.

The authorities cited are conclusive upon the subject that at common law the creating power has the right to discharge.

In the case of Elyria v. Vandemark, 100 O. S., at page 369, Judge Matthias, rendering the opinion of the court, in very concise language, states the rule, as follows:

“The authority to create an office and the power to abolish the same are co-existent.”

It is argued, however, by counsel for the plaintiff, that though this be true, if the Legislature prescribes another method for the discharge of an official, then such rule replaces the old common law rule. With this contention I agree.

The question then arises whether or not the statutes of Ohio have replaced the common law rule. Counsel for the plaintiff in their very learned brief make the statement that the “Mayor is not a czar.” He has, however, the power to remove an appointee of his, unless the statute provides another power. Our Legislature has supplanted the common law rule with reference to some officials. This law may be found in General Code, Sections 4250, 4263 and 4264, the latter providing the method. The first two sections named also provide the offices to which the statutory rule shall apply. General Code, Section 4250 provides as follows; in part:

“The mayor shall be the chief conservator of peace within the corporation. He shall have power to appoint and have power to remove, the director of public service, the director of public safety and the heads of the sub-departments of public service and public safety.”

General Code, Section 4263, entitled “When mayor shall prefer charges against delinquent officers,” reads in part as follows:

“The mayor shall have general supervision over each department and the officers provided for in this title. When the mayor has reason to believe that the head of the department or such officer has been guilty in the performance of his official duty * * * he shall immediately file with the council, except when the removal of such head of department or officer is otherwise provided for, written charges against such person.”

These statutes, therefore, provide to whom of the officials the statutory methods apply and excludes all appointees who do not fall within one or the other of those classifications.

It will be necessary then to examine each of these classifications, and thus ascertain whether the commission alleged to have been appointed by the mayor falls within one or the other of such classifications. They are as follows:

1. The Director of Public Service.

2. The Director of Public Safety.

3. The Heads of the sub-departments of public service and public safety.

4. All the officers of the corporation.

See General Code, Section 4262 and reference to the officers therein named and Section 4263.

As far as the brief of counsel for plaintiff shows and as far as I have been able to find by further investigation and examination of the statutes, these are the only classifications to which the statutory rule of removal apply. It, of course, can not be claimed that this commission or any member thereof was the director of public service or the director of public safety, or the head of any sub-department of public service or public safety. So that if the statutory rule for removal is to apply to this commission, it must fall under the last classification; that is the commission or the members thereof must be an officer or officers such as are referred to in Section 4262, General Code.

When the investigation of this one question is narrowed down to the one proposition, it will hardly be seriously contended that this commission or the members thereof appointed as it was, for the purpose mentioned in the appointment, would fall within the terms “an officer.”

It seems to me rather .it would fall within a classification outside of the classifications provided for in the statutory enactments, such, for example, as the investigating committee provided for in Section 3792, General Code.

The members of this commission are in no sense officers of the city. They are not elected as such or are they appointed as such; • Each is appointed as a member of a special committee, not as an officer of the city, for the purpose of making an investigation, according to the terms of the appointment, or if not for that purpose, for the purpose of performing the functions expressed in the statute, creating the commission, or rather authorizing the creation of the commission.

The next important step taken which is criticized is the passing of ordinance No. 60, on November 15, 1928. Various objections to this ordinance were urged, which counsel for the plaintiff claimed made the ordinance void. First, it was contended that there was no ordinance or resolution of necessity, preceeding the passing of ordinance No. 63. Second, it was urged that the ordinance was void because the then existing commissioners after due consideration and discussion failed to recommend the improvement. Third, that there was no valid action for the approval of the plans and specifications submitted. Fourth, that after the recommendation against the' ordinance was made by the commission, the commission was discharged by the mayor.

These questions need not be gone into for the reason that on December 27, 1928, council repealed ordinance No. 60. The next step was the passing of ordinance No. 65. This is also criticized for the same reasons that were claimed to exist against ordinance No. 60 and for the additional reason that within thirty days after the passage of ordinance No. 65 a referendum petition was circulated and filed with the auditor and a taxpayers’ suit brought to enjoin the issue of bonds provided for in the ordinance.

Before, however, this action could be heard and without any attempt of the defendants to contest the same, council repealed ordinance No. 65. It is contended upon the part of the plaintiff that council had no right to repeal ordinance No. 65, while a referendum vote was pending. There was some controversy as to whether the proceedure with reference to bringing about the referendum was legal. It is believed that it is not necessary to go into this question for the reason that, ordinance No. 65 having been repealed, there was no further necessity for referendum. In other words that the object of the referendum, had it gone favorably to those who were against the improvement of the waterworks, could have accomplished no more than was accomplished by the action of council in repealing the same.

All testimony with reference to ordinances Nos. sixty and sixty-five, except the fact thtat the same was repealed, was objected to by defendants and at the time either the objection was sustained or taken under consideration. Those questions upon this subject which were taken under consideration, the objection to which was not at the time sustained are now sustained and exceptions are noted for the plaintiff.

On the same date that ordinance No. 65 was repealed council passed two ordinances, that is ordinance No. 78, ordinances Nos. 79, 80 and 81 and it is with regard to these ordinances that the serious questions in this case are raised.

It is my opinion at this time that whatever was done with reference to ordinances Nos. 60 and 65 have nothing to do with the present situation.

Ordinance No. 78 is purported to be an ordinance of necessity to improve, alter and extend the municipal water works plant.

Ordinance No. 79 provides for the issuance of $55,000 bonds for providing power and pumping equipment and repairs to the water works plant. Ordinance No. 80 is the necessity ordinance for lighting the streets and public buildings and furnishing electricity to the inhabitants of the city. Ordinance No. 81 is the bond ordinance providing for the issuance of $25,000 bonds to provide a fund for the purpose of installing power and generating equipment for generating electricity for lighting the streets and furnishing electricity to the municipality and its inhabitants.

The two ordinances that are attacked by the petition, however, are ordinances 78 and 79. Both of these were passed as emergency ordinances. The emergency section in ordinance 78 reads as follows:

“Section 5. This measure is hereby declared necessary for the immediate preservation of the public peace, health and safety in the city of Marietta, by reason of the worn-out condition of said waterworks plant and the deterioration thereof and the likelihood that said waterworks plant may break down and cease to function at any time, leaving the city without an adequate water supply.”
“Section 7. By reason of said emerfency hereinbefore declared, this ordinance shall go into immediate effect and be in force upon its passage.”

Ordinance No. 79 is introduced as exhibit “F.” The emergency sections of this ordinance read as follows:

“Section 8. This measure is hereby declared necessary for the immediate preservation of the public peace, health and safety of the city of Marietta, by reason of the worn-out condition of said waterworks plant and the deterioration thereof and the likelihood that said waterworks plant may break down and cease to function at any time, leaving the city without an adequate supply.”
“Section 10. By reason of said emergency heretofore declared, this ordinance shall go into immediate effect and be in force upon its passage.”

The plaintiff criticizes the emergency sections in these two ordinances, stating for cause of objection that an emergency did not exist.

This raises a question of law and possibly a question of fact. The question of law is in whom is vested the power to say whether or not an emergency exists. I think it is practically conceeded that that power is vested in the legislative branch of the government of the city, that is in the council.

The serious question of law is whether or not the legislative power of the city had the absolute' right to declare an emergency and thereafter proceed accordingly, whether as a matter of fact any emergency really existed; and, if the council does not have such arbitary power, to what extent has the judiciary a right to review and decide.

That question was ably argued orally and is briefed by counsel.

It is not denied by counsel on either side that, if fraud appeared in the declaration of an emergency, the courts could unquestionably go into that question.

In the opening statement upon the question of emergency the brief of counsel for the plaintiff contains the statement:

“We contend that the council under the guise of improving and extending the municipal waterworks plant, as declared in ordinance No. 78, is installing power for a new public utility, a municipal electric light and power system.”

The use of the word “guise” may suggest that there is a claim of fraud upon the part of council.

No such claim, however, is made in the petition and when counsel’s attention was called to this fact during the progress of the hearing it was expressly repudiated by council for the plaintiff that any such claim was pressed. So that branch of the question, that is as to whether the courts could interfere on the ground of fraud is eliminated in this case, if in fact is was ever in the case.

Stripped down then to the real question of law bearing upon this subject is this: Can the courts review the acts of council when council has declared an emergency, and if they can review the action of council, what is the rule that directs the court; or in other words, under what circumstances may the court, if it can review at all, set aside the action of council.

This is very important in this case by reason of the provisions of the general code with reference to referendum votes and to what ordinances referendum measures apply.

Section 4227-2, General Code, provides that any ordinance or other measure passed by the council of any municipal corporation shall bo subject to referendum except as hereinafter provided.

From the provisions of Section 4227-2, an exception is found, among those exceptions in General Code Section 4227-3, in the following language:

“Emergency ordinances or measures necessary for the immediate preservation of the public peace, health or safety in such municipal corporations, shall go into immediate effect. Such emergency ordinances or measures must, upon a yea and nay vote, receive the vote of two-thirds of all the members elected to the council or other body corresponding-to the council of such municipal corporation, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure.”

The emergency provisions of ordinances 78 and 79 fits in as far as their language is concerned to the provisions of this statute.

No question is raised as to this proposition and no question could be raised.

Resort must be had to the courts to ascertain whether the courts can review the conclusion arrived at by council, and if so by what rule.

Counsel have reviewed the authorities very carefully upon this proposition, and there is a conflict of authorities. It is believed, however, that this court is bound by the last word of the Supreme Court upon the proposition. As far as the investigation has shown this is found in the case of State on Relation of Durbin v. Smith, 102 O. S., page 591. The opinion of the court is per curiam. That opinion is binding upon this Court as far as it reaches the questions raised in the case, although there are a diversity of dissenting and explanatory opinions by various members of the court.

The court says in the outstart that the first question presented in the case then under consideration is as follows: “Is the right of referendum preserved by the constitution upon an act which the General Assembly- has adopted, the General Assembly having passed the separate emergency section, wherein the reasons for such necessity have been set forth, by vote of two-thirds of all of the members elected to each branch, upon a yea and nay vote upon separate roll call.” The court added to this statement, “No case has previously been presented to this court involving that question.”

The court then quotes Section 1-D of Article 2 of the Constitution of Ohio. The reading of this section would indicate that the council of Marietta was in the same position with reference to the question raised as was the Legislature of Ohio in the Smith case.

The court then quotes and approves from the case of the Cincinnati, Wilmington, and Zanesville Railroad Company v. Commissioners, 1 O. S., page 77, the following doctrine:.

“It is only when manifest assumption of authority and clear incompatability between the constitution and the law appear that the judicial power will refuse to execute it.”

The court then quotes and emphasizes the fact that Section 1-D provides that emergency laws shall go into immediate effect, and that the laws mentioned in this section which include emergency laws shall not be subject to the referendum.

After pointing out the proceedure of the constitutional convention leading up to a passing of the emergency act and to certain events that thereafter followed when the question was submitted to the people, the Courts per curiam say; and so saying hold:

“It would seem therefore that these features of the law are justifiable: A — that emergency laws must receive a two-thirds vote of all the members elected to each branch. B — reasons for the necessity shall be set forth in one section of the law. C — that such emergency section shall be passed upon a yea and nay vote upon a separate roll call.”

The court then says:

“Manifestly this court cannot go out of the-provisions of the act and the facts which it judicially knows for the purpose of ascertaining whether the legislature had valid reasons for declaring this to be an emergency law. Primarily this is a legislative and not a judicial policy, and the subject matter comes naturally within the legislature and not the judicial field. We should hesitate to determine judicially that the lawmakers of the state had violated their oaths by making a false statement in their declaration of emergency.”

The court then quotes with approval from the case of Kedderly v. Portland, 44 Oregon, 118, the following:

“The question whether a given law is necessary for the immediate preservation of the public peace, health or safety, and thus one that may be put into operation at once by adding to it an emergency clause, is distinctly for the legislature, and its act in the matter is not judicially reviewable.”

Apparently up to this point of the case which occurs on page 600, this appears to be the holding of the court. However, a close reading shows that it is merely an expression of views of two members of the court upo'n this subject. This further appears on page 600 from the following language:

“It is held by Judges Jones and Matthias that all the provisions of Section 1-D of Article 2 of the Ohio Constitution were thereby complied with, and that under its clear and express terms an act so passed is not subject to the referendum and shall go into immediate effect.”

However, that is followed by this statement:

“Under the provisions of Section 2, Article 4 of the Constitution, providing that no law shall be held unconstitutional and void by the Supreme Court without a concurrence of at least all but one of the judges, the conclusion above announced would require a denial of the writ of mandamus, prayed for.”

While that is true, it does not necessarily follow that the Supreme Court has laid down the proposition that the legislative act in matters of this kind is final, and that the courts under no certain circumstances can review the same, unless it appears from a further consideration of the decision under discussion that a majority of the Supreme Court concurred in that doctrine.

It appears from, the opinion, however, that Judges Hough and Robinson agree with Judges Jones and Matthias to the extent following:

“The repugnancy which must cause the law to fall, must be necessary and obvious; if by any fair course of reasoning, the law and the constitution can be reconciled, the law must stand.”

The court then proceeds to review the authorities in support of the view last mentioned. It is important to quote these authorities, I think, in order to thoroughly understand the conclusions which the court reached. The language is as follows:

“In the recent case of City of Xenia v. Schmidt, 101 Ohio St., 437, this court declared: ‘1. A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body. 2. That presumption of validity of such legislative enactment cannot be overcome, unless it appear that there is a clear conflict between the legislation in question and some particular provision or provisions of the constitution.’ In the opinion by Wanamaker, J., at page 443, the opinion of John Marshall, C. J., in the case of Fletcher v. Peck, 6 Cranch, 87, decided in 1810, is quoted with approval as follows: ‘The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.’ ”

And in City of Xenia v. Schmidt, at page 444, Judge Wanamaker again quotes from the opinion of Justice Washington in the case of Ogden v. Saunders, 12 Wheat., 213 (1827), as follows:

“If I could rest my opinion in favor of the constitutionality of the law * * * on no other ground tha'n this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond a reasonable doubt. This has always been the language of this court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench.”

Quoting again from the opinion of Chief Justice Waite in Sinking-Fund Cases, 99 U. S., 700 (1878) :

.“Every possible presumption is in favor of the validity of' a statute, and this, continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in. no small degree on a strict observance of this salutary rule.”

Also quoting from the opinion of Chief Justice Shaw in the case of Wellington et al., Petitioners, 16 Pick., 87:

“To repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an act of legislation * * * (they will) never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.”

Quoting again from the opinion of Justice Ranney in the case of Cincinnati, Wilmington & Zanesville Bd. Co. v. Clinton County Commissioners, 1 Ohio St., 77, the learned Judge in the Xenia case, at page 445, approved this language :

“But while the right and duty of interference in a proper case, are thus undeniably clear, the principles by which a court should be guided, in such an inquiry, are equally clear, both upon principle and authority * * * and it is only when manifest assumption of authority, and clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it. Such interference earn never be permitted in a doubtful case. And this results from the very nature of the question involved in the inquiry. * * *
“ ‘The adjudicated cases speak a uniform language upon this subject. * * *
“ ‘An unbroken chain of decisions to the same effect, is to be found in the state courts.’
“This same principle was approved and applied in the recent case of Pohl v. State, ante, 474, in which all members of this court concurred. It is there stated that ‘If under any possible state of facts the sections (of the law) would be constitutional, this court is bound to presume that such facts exist.’
“The Constitution of 1912 recognized the power reposed in the judiciary of declaring laws to be unconstitutional and void. And in order to maintain legislative supremacy, and to curb the judicial power, this provision (Section 2, Article IV) was adopted as a part of the Judicial Article:
“ ‘No law shall be held unconstitutional and void ’ by the supreme court without the concurrence of at least all but one of the judges.’ ”

The court then lays down this principle or rule of action;

“The judicial department is not permitted to review the wisdom of legislative policies or to review legislative discretion. The court may intervene only when it is convinced that the legislative act is incompatible with the provisions of the Constitution.”

I think counsel for plaintiff is justified in its claim that paragraph eleven of Judge Wanamaker’s opinion, as it is written on page 650, is the law in this state and is applicable in the case now under consideration, that is the instant case.

Paragraph 11 of Judge Wanamaker’s syllabi reads as follows:

“The judgment of the General Assembly as to the emergency character of an act under the constitutional amendment of 1912 is not conclusive, but its judgment in that behalf may be challenged in a proper proceeding at any time within the ninety-day limit, either as to the constitutional vote or the emergency character of the act.”

While this is true, before the courts could interfere the insufficiency of the emergency claim must be proven, in the language of one judge, beyond all reasonable doubt, and in the language of another court such proof must be clear and convincing.

This being the principle laid down by our Supreme Court, it is necessary for this Court to go over the evidence as briefly as may be and ascertain whether it does appear by that degree of proof necessary, that the declaration of council as to the existance of an emergency, was not justified by the situation as it appears from the testimony.

There was a mass of testimony upon this subject offered -by' both the plaintiff and defendants. The members of the commission were called and testified to their views upon the subject. These were men especially qualified, learned and conscientious.

• A review of their testimony in its final analysis, leaves the impression that they did not consider such serious condition existed at the water works plant, but that it should be cured by repairs of and the kind and character provided for in the plans and specifications.

An expert was called and testified at some length upon the subject.

It cannot be concluded from his testimony that something need not be done and done promptly at the water works plant. His criticism was not directed to the question of emergency so much as to the method that was adopted in correcting it.

The defendant also produced an expert on the subject of water works who disagreed in most particulars with the methods and plans suggested by the expert witness offered by the plaintiff.

Some very important testimony was offered by the defendants on the actual conditions of the water works plant at the time the council claimed there was an emergency.

There were two classes of this testimony, one class consisted of various written reports from the state authorities upon the question of the condition of the water works.

The other class consisted of men who had been employed in and about the water works including the superintendent of water works. They testified as to the actual condition of the plant.

As an illustration of the first class of testimony defendants’ exhibit 6 and defendants’ exhibit 7 may be referred to. Defendants’ exhibit 6 is a letter written to Mr. Bus-sell, service director, by F. E. James, boiler inspector, of the date of August 24, 1928. Referring to one of the boilers, in this letter it is stated that the boiler is 28 years old and is not built according to Ohio state standard code; that said boiler is in bad shape. Front bottom sheet saged good % inches back near girth seam and looks as though it has been driven up several times. Also looks like this sheet has been burned some time. Also boiler is pitted some and- all those things weaken said structure. Also rear head is buckled, is out inch in places. Also noted rivet heads on top braces stand off, looks like unequal expansion and contraction on said braces or there is undue strain on some of them.

“I also note your boiler has settled to the right as you stand in front facing said boiler. My honest opinion is you had better replace it with a new one.”

Defendants’ exhibit 7 is a letter of the date of November 30, 1928, signed by F. E. James, Deputy Boiler Inspector, in which the condition of the boiler is criticized.

Several certificates of inspection were also offered by defendants as exhibits. For example exhibit 3, in which the department directed that a boiler there described should be discontinued after six months from the date of the certificate, the certificate was dated the 20th day of August, 1928.

Other witnesses were offered in the second classification. Reference, however, need be made at this time to only one.

The witness referred to is William J. Evilsizer. His testimony begins on page 131 of the transcript and terminates on page 171.

It appears from the testimony that William J. Evilsizer was a man 51 years of age and that with the exception of 8 months he had been an employe of the city water works of Marietta for a period of 31 years. He left the water works in the year of 1903 or 1904 for eight months. Returned in that employment after the expiration of eight months and has since been there. He is now and for sometime past has been chief engineer of the city water works.

I heard his testimony from the witness stand and have since read it. I am impressed with his thorough knowledge of all departments of the water works of Marietta, of his knowledge generally with reference to the construction of water works and of his entire frankness, honesty and capability as a witness. I possibly was better able to understand his testimony from the fact that I visited the water works plant and looked it over very carefully. The examining counsel plunges into the subject of the condition of the water works at the beginning of the testimony of the witness, on page .131, by inquiring of the condition of the boilers. Beginning with an answer to that question and extending over a number of pages, the witness gives a very clear and lucid explanation of the present condition of the water works and of the plant generally. It is not necessary to go into these details. Counsel has the record and heard the testimony as it was educed from the witness stand. The picture drawn by the witness presents a plant that is tottering in many respects with old age, a plant that has been kept running only by tenderest and most expert care, a plant that in one respect, at least, constantly presents a danger to life and limb of employes. He says on pages 132 and 133 of his testimony:

“That includes the water belting ijipe in front of the boiler ; that is taped in some ten inches below the upper flues, and the blow-off pipe — that is the pipe in the back of the boiler that is used to blow the mud out of the boilers at stated intervals. There is those three pipes that make the_ situation exceedingly dangerous to anybody that might be within close distance of those boilers at any time they are under steam pressure.”

In response to a question with reference to boiler number three, the witness says on pages 135 and 136 that boiler number 3 was put in in the summer of 1900. It is now not quite 29 years old. The witness states that this boiler was condemned by the state inspector. He states on page 138 that he has not been able to use boiler number 3 since last August, and said boiler is not now in condition to be used.

All of this testimony as to the condition of the plant by these exhibits and other 'witnesses upon the subject were known to council at the time they passed the emergency act.

Can it be said in this situation that council has gone beyond its prerogative and that such has been shown by the degree of proof necessary?

I do not think so.

Several other questions have been raised and discussed; among others whether or not the council could and did proceed legally in passing ordinances 78 and 79, on the same day that ordinances 80 and 81 were passed. This does not seem to me pertinent, unless there be an allegation of fraud. There is no such allegation and no such claim. It is my belief, therefore, that ordinances 78 and 79 should be considered independently from any ordinances that were passed either before or after the date of the passing of these two ordinances.

Some other questions have been raised and argued both orally and in counsels’ brief. One of these criticizes the plans and specifications. It is urged that the plans and specifications are not in sufficient detail. The plans and specifications are offered in this testimony and there was some expert testimony upon the subject of whether or not they were insufficient in detail.

It does appear, possible, that details may have been gone into as to plans and specifications that were not gone into. This, however, is possible insured by the statement found in the contract to the effect that the construction should be in a good and workmanlike manner.

Some general precaution is also taken with reference to kind and character of material used.

It is claimed too the plans and specifications were drawn in such a way that possibly only one manufacturer could produce what was described therein.

It is claimed that for this reason competition in bidding was eliminated. There is some testimony upon both sides of this proposition. The preponderance however, is not in favor of the plaintiff.

Upon these considerations the court has come to the conclusion that the temporary restraining order heretofore issued should be and is dissolved; that all other issues joined are decided in favor of the defendant and against the plaintiff, and that the petition is dismissed at cost of plaintiff.

If a motion for a new trial is put in counsel, if they desire, may have the entry made on the court’s docket, “Motion for new trial overruled.”

Exceptions may also be noted.

Before fixing an appeal bond, I would like to give counsel on both sides an opportunity to be heard on the question of the size of the appeal bond. This, of course, will not be necessary if counsel can agree as to the amount. If they agree upon an amount of an appeal bond, that entry may also be made, fixing the amount agreed on.  