
    No. 438
    CHURCHILL v. STATE
    Ohio Appeals, Ninth Dist., Lorain County
    BURKE LAW — (1) No delegation of legislative power — (2) Law uniform in operation — (3) Penalties — (4) Construction of apparent inconsistent statutes — (5) GC. 7246 -not in conflict with GC. 7247 — (6) No judicial or confiscatory power conferred by act.
    Attorneys — Sanborn, McConnell & Marsteller, for Churchill; L. H. Webber and G. B. Symons, for State.
   WASHBURN, J.

Epitomized Opinion

Churchill was convicted for violating the provisions of the Burke law GC. 7246. The statute was passed to regulate the use oil highways and to limit the loads carried on truck. The statute limits the weight of the vehicle and the load that may he carried to ten tons, and then provides that the state highway commissioner is charged with the duty of determining, upon the recommendation of the’ county surveyor or deputy highway commissioner what weight could be carried over the road during most seasons. The law also provides for a penalty for its violation. In the case at bar, the county surveyor and state highway commissioner determined that the maximum weight that could be carried over the road in question during the moist season was 6 2-3 tons. Porper notices were posted, nevertheless the accused transported a heavier load over the highway. As he was found guilty, he prosecuted error to the Court of Appeals. The principal contentions of Churchill were that the Burke act was unconstitutional because it delegates the legislative power, that the law was not uniform in operation, and did not make the carrying of a lesser loan than ten tons an offense. In sustaining the lower court, it was held:

' 1. The Burke act does not confer legislative power, hut administrative power only. •

2. As the law applies to every road of the same class in every locality, the law is uniform in operation.

3. The law provides for a penalty for carrying a lesser load than ten tons when notices are posted.

4. As' GC. 7247 was passed at. a different time from GC. 7246, the two sections- are independent of each other and the invalidity of one, if any, does not affect the other.

5. Construing GC. 7247 and .7246 together, they are not inconsistent.

6. The act confers administrative power upon the county surveyor and the highway commissioner and does not confer judicial and confiscatory power upon them.  