
    The State, ex rel. Arey, v. Sherrill, City Manager.
    
      (No. 29687 —
    Decided March 1, 1944.)
    
      
      Mr. Andrew J. Hagan, Mr. Wm. Jerome Kuerts and Mr. Robert G. McIntosh, for relator.
    
      Mr. John D. Ellis, city solicitor, and Mr. Ed F. Alexander, for respondent.
   Bell, J.

In the instant case neither party has filed any motion or demurrer and there is no agreed statement of facts or evidence, therefore the cause will be disposed of as if there had been filed a motion for judgment on the pleadings.

The sole question presented is whether the respondent has the authority to hear and determine the charges filed against the relator.

Counsel for relator vehemently assert that respondent is without authority in law to hear and determine the charges. On the other hand counsel for respondent assert with equal vigor that the city charter and administrative code grant respondent full and complete authority to hear and determine such changes.

The answer to the question presented must come from a consideration and construction of certain provisions of the Constitution, General Code, city charter and administrative code adopted in pursuance of the charter.

Before proceeding to the controlling question it should be noted that Section 2, Article XVIII of the Constitution, provides “* * * and additional laws may also be passed for the government of municipalities adopting the same; * * The General As-, semblv, by authority of that section, passed laws providing three plans of municipal government known as the “commission plan” (Sections 3515-11 to 3515-18, both inclusive, General Code), the “city manager plan” (Sections 3515-19 to 3515-28, both inclusive, General Code), and the “federal plan” (Sections 3515-29 to 3515-44, both inclusive, General Code).

The city of Cincinnati did not organize under or adopt any of the statutory plans but adopted its charter under the general grant of power contained in Section 7, Article XVIII of the Constitution, which reads as follows:

“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-govermnent. ”

Section 3, Article XVIII, provides:

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

These two provisions of the Constitution were adopted at the same time, are in pari materia and must be construed together. See Fitzgerald et al., Bd. of Supervisors, v. City of Cleveland, 88 Ohio St., 338, 103 N. E., 512, Ann. Cas. 1915B, 106.

Section 3, Article XVIII, grants to all municipalities authority to exercise ail powers of local self-government, subject to the limitation that police, sanitary and other similar regulations adopted by a municipality shall not conflict with general laivs. The word local as used in that provision of the Constitution has a definite meaning. The phrase “all powers of local self-government” as used therein, means the power of self-government in all matters of a purely local nature.

It seems evident that the framers of that provision had in mind that police, sanitary and other similar regulations were not purely local matters and therefore should continue to be controlled by general law. Hence the limitation upon the power.

The debates, in the Constitutional Convention of 1912 upon the subject of the home-rule amendment (now Article XVIII of the Constitution) were both lengthy and heated. Sections 3 and 7 of that amendment proposed for adoption by the convention caused debate which at times became bitter and personal. (Vol. 2, Proceedings and Debates of the Constitutional Convention of Ohio of 1912, 1439 et seq.)

On the one side were those who desired to grant to municipalities unlimited power of self-government and on the other were those who favored only limited power. A comparison of the language of Sections 3 and 7 as originally proposed for adoption (by the convention) with the language of those sections as adopted (by the convention) furnishes conclusive evidence that the Constitutional Convention did not intend to adopt and recommend for passage constitutional provisions granting unlimited power of' self-government.

By the adoption of Article XVTII the people granted to the municipalities of the state unlimited power of self-government in all matters purely local in their aspect but limited their power in all matters of general concern to the whole people of the state.

It would be a bold man who would assert that the police power of the state does not include the establishment of and general control over police departments and the members thereof.

Under the provisions of Section 3-, Article XVIII, all municipalities are granted “all powers of local self-government” and such powers are in no wise dependent upon the adoption of a charter.

The language of Section 7, Article XVIII, is permissive and grants authority to any municipality to adopt a charter.

It therefore follows that a municipality in adopting a charter as authorized by Section 7 is merely exercising a permissive authority of local self-government conferred upon all municipalities by Section 3; but it does not follow that after the adoption of a charter a municipality thereby has greater powers of local self-government than those which may be exercised by any municipality which has not adopted a charter.

As we view these provisions, a municipality by adopting a charter form of government does not become an independent sovereignty. See Cleveland Telephone Co. v. City of Cleveland, 98 Ohio St., 358, 121 N. E., 701.

A municipality may adopt a charter which prescribes its form of government and definés its powers on purely local matters. The state, however, remains supreme in all matters not purely local. Billings v. Cleveland Ry. Co., 92 Ohio St., 478, 111 N. E., 155; State, ex rel. Giovanello, v. Village of Lowellville, 139 Ohio St., 219, 39 N. E. (2d), 527; State, ex rel. Daly, v. City of Toledo, ante, 123.

At the threshold of our consideration of the ultimate question we must first determine whether this is a matter of purely local concern.

As has been observed, charges have been preferred against a police officer of the city; relator claims such charges must be determined by the Director of Public Safety under the provisions of the General Code; and the respondent claims the right and authority to hear and determine those charges under the provisions of the city charter and the administrative code. The General Assembly has provided for the organization of police departments, the protection of the tenure of members thereof, the causes for suspension or discharge and the methods of procedure to effect suspension or discharge.

The police department of a city is charged with the duty of protecting the lives and property of all persons therein, irrespective of their place of residence, and with enforcing all state laws as well as city ordinances.

Those duties have a definite relation to the public safety and general welfare of society as a whole and are .a matter of statewide concern.

In the case of City of Cincinnati v. Gamble et al., Bd. of Trustees, 138 Ohio St., 220, 34 N. E. (2d), 226, paragraphs three and four of the syllabus read as follows:

“3. In matters of state-wide concern the state is supreme over its municipalities and may in thé exercise of its sovereignty impose duties and responsibilities upon them as arms or agencies of the state.
“4. In general, matters relating to police and'fire protection are of state-wide concern and are under the control of state sovereignty.”

It is established by a uniform line of decisions of this court that matters pertaining to a police department are of state-wide concern and that municipalities, charter or otherwise, are without authority to adopt regulations in respect thereto which are in conflict with general law.

The term “general laws” as used in Section 3, Article XVIII, has been construed to mean state statutes. Village of Brewster v. Hill, 128 Ohio St., 354, 191 N. E., 366; City of Cincinnati v. Correll, 141 Ohio St., 535, 49 N. E. (2d), 412.

The General Assembly has provided that all members of the police department in every city shall be maintained under civil service. (Section 4378, General Code.)

That the police department of a city is a matter of state-wide concern does not prevent the city from adopting any regulation in reference thereto so long as such regulation does not conflict with general laws.

The power and authority of respondent to hear and determine the charges must depend, first, upon the provisions of the city charter and the administrative code of the city, second, upon any pertinent provisions of the General Code, and, third, upon whether there is a conflict between the provisions of the charter and the administrative code and the provisions of the General Code. •

The city charter, as amended in 1926, and as still in effect, provides as follows (Section 7, Article II):

“The existing departments, divisions and boards of the city government are continued unless changed by the provisions of this charter or by ordinance of the council. Within, six months after the adoption of this charter, the council shall by ordinance adopt an administrative code providing for a complete plan of administrative organization of the city government. Thereafter, except as established by the provisions of this charter, the council may change, abolish, combine and rearrange the departments, divisions and boards of the city government provided for in said administrative code, but an ordinance creating, combining, abolishing or decreasing the powers of any department, division .or board, shall require a-vote of three-fourths of the members elected to' the council, except the ordinance adopting an administrative code.”

Pursuant to that authority the city council adopted an administrative code which, as now in effect, provides for four departments under the city manager known as departments of law, safety, public works and public utilities.

Section 1 of Article II of the administrative code provides:

“The city manager, except as otherwise provided in the charter, shall appoint and may dismiss, suspend, and discipline all officers and employees in the administrative service under his control.”

It is claimed by virtue of these provisions of the charter and the administrative code the respondent is granted power and authority to hear and determine the charges against relator.

This claim must be sustained unless applying those provisions of the city charter and the administrative code to eases involving members of the police department creates conflict with general laws.

Section 4367, General Code, reads as follows:

“In each city there shall be a department of pxiblic safety, which shall be administered by a director of public safety. * * *” (Italics ours.)

This provision of the Code is mandatory and under its provisions every city except those organized under authority of Section 3515-1 et seq., General Code, must have a department of public safety administered by a director of public safety.

Section 4368, General Code, provides in part:

“* * * He [the director of public safety] shall have all powers and duties connected with and incident to the appointment, regulation and government' of these departments [police and fire departments] except as otherwise provided by law. * # *”

Section 4378, General Code, provides in part as follows :

“ * * * The police and fire departments in every city shall be maintained under the civil service system, as provided in this subdivision.”

By the provisions of Section 4379, General Code, the chief of police has the exclusive right to suspend any member of the department for incompetence, gross neglect of duty, gross immorality, habitual drunkeness, failure to obey orders given him by the proper authority, or for any other reasonable or just cause.

Section 4380, General Code, reads as follows:

“If any such employee is suspended as herein provided, the chief of police * * •* forthwith in writing, shall certify such fact, together with the cause for such suspension to the director of public safety, who within five days from the receipt thereof, shall proceed to inquire into the cause of such suspension and render judgment thereon, which judgment, if the charge be sustained, may be either suspension, reduction in rank or dismissal from the department, and such judgment in the matter shall be final except as otherwise provided in this subdivision. Said director, in any investigation of charges against a member of the police or fire department shall have the same powers to administer oaths and to secure the attendance of witnesses and the production of books and papers as are conferred by this subdivision upon the mayor.”

By the provisions of these quoted sections the director of safety is granted the power of appointment of police officers, their supervision, the power to hear and determine charges made against them and to inflict such punishment as is justified under the facts in each particular case.

We are of opinion that insofar as the city charter and the administrative code attempt to grant authority to the city manager to inquire into the cause of suspension of a member of the police department of the city and to render judgment thereon such provisions are in conflict with and must yield to the provisions of the G-eneral Code.

It is further claimed that by reason of the provisions of Section 486-17a, G-eneral Code, the city manager is granted power to inquire into the cause of suspension and render judgment thereon. This claim is based upon the contention that the city manager is the appointing officer.

We have already called attention to the provisions of Section 4368, General Code, which grant to the director of public safety all power connected with and incident to the appointment of members of the police department. We find no merit in the contention of respondent upon this phase of the controversy.

Finally respondent contends that prohibition is not the appropriate remedy.

The writ of prohibition has been defined by this court in the case of State, ex rel. Brickell, v. Roach, Recr., 122 Ohio St., 117, 170 N. E., 866. Paragraph one of the syllabus reads as follows:

“A writ of prohibition is an extraordinary judicial writ, issuing out of a court of superior jurisdiction, to prevent an inferior court or tribunal from usurping jurisdiction with which it is not legally invested.”

The functions here sought to be exercised are of a quasi-judicial náture and this court has on numerous occasions granted a writ of prohibition to keep administrative tribunals withifi. the limits of their jurisdiction. State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, 112 N. E., 1029; State, ex rel. McCrehen, v. Brown, Secy. of State, 108 Ohio St., 454, 141 N. E., 69; State, ex rel. Schorr, v. Viner et al., Civil Service Comm., 119 Ohio St., 303, 164 N. E., 119; State, ex rel. Stanley, v. Bernon et al., Bd. of Elections, 127 Ohio St., 204, 187 N. E., 733; and State, ex rel. Pawlowicz, v. Edy, City Mgr., 134 Ohio St., 389, 17 N. E. (2d), 638.

We conclude that the city manager has no authority or jurisdiction to proceed to inquire into the cause of the suspension of relator or to render judgment thereon; that relator has no adequate remedy at law and, the answer admitting that respondent will proceed to exercise that jurisdiction unless prohibited from so doing- by this court, it follows that the writ should be and hereby is allowed.

Writ allowed.

Weygandt, C. J., Matthias, Hart, Zimmerman and Williams, JJ., concur.

Turner, J., dissents.

Williams, J.,

con&urring. The sole question is whether the city manager of the city of Cincinnati, the respondent herein, has authority to inquire into the cause of suspension of the relator, a patrolman, as provided by ordinance or whether the suspension and hearing thereon are governed by Sections 4379 and 4380, General Code.

Sections 3 and 7, Article XVIII of the Constitution, provide as follows:

“Section 3. Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.'”
‘ ‘ Section 7. 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.”

As the constitutional powers of a non-charter municipality with respect to local self-government and such local regulations are exactly the same as those of a charter municipality, no differentiation between them need be made in pursuing this inquiry. ,

A consideration of the above-quoted constitutional provisions naturally divides itself into three heads: (1) Local police, sanitary and other similar regulations. (2) Powers of local self-government where such regulations are not involved. (3) The power or authority of the municipality to act in matters of statewide concern.

1. It is true there is' some confusion in the authorities as to the distinction between police regulations and the police power. In placing a construction on these constitutional provisions it is necessary to determine the exact meaning of the words “local police, sanitary and other similar regulations.” These words must be construed in the light of the whole section If such regulations are interpreted to mean the same as police power then home rule would be narrowed beyond compare and its limits made uncertain. The narrowing would result because what the municipality did in the exercise of the police power in local self-government would be subject to “general laws.” The uncertainty would arise because the courts have invariably refused to define the police power. The purpose of the constitutional provisions was to guarantee home rule to cities and villages in matters of local self-government, but the intent of the provisions was not to curtail the power of the state to enact laws with respect to misdemeanors. So in the latter respect municipal power was made subject to state power. Both the state and the municipality may make an act a minor penal offense, but when there is a conflict the municipal provision must give way. This rule of law prevailed before the amendment was adopted and was not changed. The intent was to use the term “regulations” in the sense of municipal legislative acts which make an act an offense and prescribe a penalty and thus to preserve the former status of both jurisdictions with respect to misdemeanors.

That brings us to a discussion of the second head. In the exercise of powers of purely local self-government, charter provisions and municipal legislation may be in conflict with general laws of the state and still retain their validity. Otherwise there would have been no purpose in adopting the amendment. Municipalities now derive their powers of local self-government from the Constitution and not from the General Assembly ; and the General Assembly can not limit or take aAvay the municipal power so granted. There is that distinction between the exercise of powers of local self-government generally and the adoption and enforcement of police, sanitary and similar regulations. Conflict with general Mavs does not invalidate municipal legislation which is purely a matter of local self-government but does invalidate such regulations.

The third head involves the power of the municipality to act in matters of state-wide concern. With respect to such matters this language was used in City of Wooster v. Arbenz, 116 Ohio St., 281, at 284, 156 N. E., 210, 52 A. L. R., 518:

“In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself.”

Health, police and fire are matters of state-wide concern because action in these fields may be essential to the very life of the state. But when the state does not invade or pre-empt the field then the matter may, by the very necessity of the case, become a matter upon which the municipality may “voluntarily” act. An illustration would be the adoption of an excise tax by a municipality. The power of a municipality to adopt an excise exists so long as the state has not invaded or pre-empted this particular field by passing a law providing for the same kind of excise. See State, ex rel. Zielonka, City Solicitor, v. Carrel, Auditor, 99 Ohio St., 220, 124 N. E., 134; City of Cincinnati v. American Telephone & Telegraph Co., 112 Ohio St., 493, 147 N. E., 806; Firestone v. City of Cambridge, 113 Ohio St., 57, 148 N. E., 470. Compare Hall v. Industrial Commission, 131 Ohio St., 416, 3 N. E. (2d), 367.

At first blush it may seem that the foregoing illustration goes wide of the mark on account of the tax limitation provided in Section 13, Article XVIII of the Constitution; but mature reflection reveals the imposition of the excise by the state to be an exercise of general state power.

If. the state has acted and later- abandons the field, the power of the municipality to act revives. For instance, should the General Assembly abandon all provisions relating to the organization or control of police service of every kind, then if there were no power vested in the municipality, it would be left without police protection.

The municipality may act in appropriate matters of state-wide concern either “voluntarily or by legislative imposition” and, in so acting is “an arm of sovereignty and a governmental agency.” This dual capacity of a municipality to act for itself on the one hand and for the state on the other was pointed out in City of Cincinnati v. Gamble, 138 Ohio St., 220, 34 N. E. (2d). 226.

We can conclude only, assuming the foregoing principles to be sound, that legislation or charter provisions of a municipality are not necessarily invalid because they conflict with general laws. Police, sanitary and similar regulations are invalidated by such conflict, but charter provisions and municipal legislation which involve purely the exercise of local self-government are not. When the state acts in a matter affecting a municipality because it is a matter of state-wide concern, the field is pre-empted or closed and the municipality can not act on the same matter as is possible in case of police, sanitary or similar regulations.

The doctrine of pre-emption was studiously avoided in Cincinnati v. Gamble, supra, because the question of a matter of state-wide concern becoming one regarding which the municipality could act, when the state did not, did not arise. Likewise the question is not directly made in the instant case. But when the validity of municipal legislation (other than regulations) is asserted to be based upon the fact that such legislation is not in conflict with general laws, the principles of preemption become an important matter of inquiry.

Let us summarize: (a) In the sphere in which local police, sanitary and other similar regulations may be adopted, both the municipality and state may act but in case of conflict the former must give way. (b) In matters pertaining purely to local self-government the state must give way and can not act. (c) Where the state acts as to a matter of state-wide concern the preemption of the field precludes the municipality from acting; but, as an arm of the state, the municipality may act in proper matters of state-wide concern when there is no pre-emption.

A writ of prohibition should be granted not on the ground that municipal legislation permitting the city manager to inquire into the suspension of relator is a police regulation or an exercise of police power, but solely on the ground that the matter is of state-wide concern and the inquiry and hearing as to suspension are governed by Sections 4379 and 4380, General Code.

Turnee, J.,

dissenting. I dissent for the same reasons assigned in my dissenting opinion in the case of City of Cincinnati v. Gamble et al., Trustees, 138 Ohio St., 220, 232, 34 N. E. (2d), 226.  