
    Froelich v. The City of Cleveland.
    
      Constitutional law — Rules of construction — Municipal home rule — Sections 3 and 7, Article XVIII, Constitution, 1912 — Location and protection of streets — Local police regulations — Loads of vehicles and width of tires — State and municipal police power — Scope of exercise.
    
    1. In the construction of a section of the constitution the whole section should be construed together, and effect given to every part and sentence. One part must not be allowed to defeat another, if by any reasonable construction the two can be made to stand together.
    2. When a city has adopted a charter, under which it is authorized to exercise “all powers of local self-government,” pursuant to the provisions of Sections 3 and 7 of Article XVIII of the Constitution, the authority to locate, establish and protect the streets within its limits resides in the municipality, and it may adopt and enforce such reasonable regulations for their proper and economic use as it deems to be proper. It may regulate the weight of loads and the width of tires of vehicles passing over the streets. It derives this authority not by grant from the legislature, but under express authority from the people of the state given in the constitution.
    3. The state and municipalities may make all reasonable, necessary and appropriate provisions to promote the health, morals, peace and welfare of the community. But neither the state nor a municipality may make any regulations which are unreasonable. The means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation.
    (No. 16114
    Decided April 2, 1919.)
    Error to the Court of Appeals of Cuyahoga county.
    August Froelich was convicted in the municipal court of Cleveland on the charge that he had violated Section 1343-e of the ordinances of the city of Cleveland, which reads as follows:
    “No load in excess of ten tons in weight, including the weight of the vehicle, shall be propelled or driven upon or over the streets of the city, provided, however, that the Director of Public Service may issue permits in special cases for the carrying of heavier loads upon or over certain streets especially designated in the permit.”
    The judgment of the municipal court' was affirmed by the court of appeals, and error is prosecuted here.
    It is conceded that the load which the defendant was charged with carrying was not in excess of twelve tons, and was, therefore, within the provisions of Sections 7246 to 7250, General Code (107 O. L., 139).
    It is contended that the ordinance of the city is invalid and void for the reason that it is a local police regulation in conflict with general laws, and, therefore, repugnant to Section 3, Article XVIII of the Constitution.
    Section 7246, General Code, provides that none of the wagons, trucks or vehicles named in the section, weighing in excess of twelve tons, including the weight of the vehicle, shall be operated over and upon the improved public streets, highways, bridges or culverts within the state, except as thereinafter provided.
    Section 7247 provides that the county surveyor of any county, when application in writing is made by the owner or person having charge, may grant permission for the moving of vehicles, etc., in excess of a total weight of twelve tons over the improved public highways, etc., within such county and located outside of any municipal corporation therein situated, and further provides that the director of public service of a city or the mayor of a village may in like manner grant such permission as to the improved public highways, streets, etc., within such city or village.
    Section 7248 prohibits the transportation in a vehicle over the improved public streets, highways, etc., within the state of loads greater than certain loads specified in the section, and in vehicles having-tires therein specified.
    Section 7249 further regulates the operation of trucks of certain weights, and at certain rates of speed.
    Section 7250 provides, that the weights of loads prescribed and rates of speed mentioned in Sections 7246 to 7249, inclusive, General Code, shall not be decreased or prohibited by any ordinance, resolution, rule or regulation of municipal corporation, board of county commissioners, board of township trustees or other public authority-.
    
      Messrs. Hole & Hole and Messrs. M. B. ■& H. H. Johnson, for plaintiff in error.
    
      Mr. W. S. FitsGerald, director of law; Mr. John D. Marshall, assistant director of law; Mr. James L. Lind and Mr. Samuel Doerfler, prosecuting attorney, for defendant in error.
   Johnson, J.

The ordinance prohibits loads in excess of ten tons being driven over the streets of the city without the permission, under specified circumstances, of the director of public service, and the sections of the General Code referred to prohibit loads in excess of twelve tons over improved public streets.

The city rests its contention as to the validity of the ordinance upon the authority given to it by the provisions of Sections 3 and 7, Article XVIII of the Constitution. Section 3 is familiar. It reads as follows: “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.”

Plaintiff in error insists that the sections of the statute above referred to having by inference permitted loads up to twelve tons over and upon improved public streets, the city has no power to pass the ordinance regulating loads upon its own streets, such as here involved.

It is of course well known that the above provision of the constitution has been under examination by this court in a number of cases, which are familiar, and which it is not necessary to refer to in detail.

Within a very short time after the new constitution went into effect in January 1913, a few months thereafter, and while the courts and people were fresh from the discussions in the educational campaign which preceded the adoption of the new constitution in September 1912, the case of The State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St., 71, was decided.

It was everywhere agreed that the purpose of the amendment in 1912 was to alter the situation which had prevailed prior thereto, and in which municipal corporations had possessed only such power as was granted to them by the legislature.

It was conceded that after the amendment the source of governmental authority, and the measure of its extent in municipalities which adopted charters, was the constitution itself; and that by the adoption of charters cities were authorized to s.ecure immunity from general laws. The only question was as to the method of procedure.

Shauck, C. J., who spoke for the court in that case, said at page 93: “This article provides two modes of securing the permitted immunity from the operation of the uniform laws which the legislature is required to pass..” He then set out tne two modes in detail, one of which is the adoption of a charter by a municipality for its own government, under which it is authorized to exercise “all powers of local self-government.”

The judges who did not concur in the opinion of the court as pronounced by Shauck, C. J., did not withhold their assent because they felt that, the majority were going too far, but, as shown by the opinions thejr filed in the cas.e, they in addition thought that the provisions for local self-government were self-executing. But the court was unanimous in the view that by the amendment to the constitution municipalities were given immunity from general laws, as stated.

It has been constantly recognized that it was contemplated by the framers of the amendment to the constitution that .the provisions in a charter adopted by a city would differ from the general laws of the state. The object of the amendment was to permit such differences and to make them effective. The State, ex rel. Lentz et al., v. Edwards et al., 90 Ohio St., 305, and Billings et al. v. The Cleveland Railway Co., 92 Ohio St., 478.

But it is insisted that the clause in the section referred to which reads, “and to adopt and enforce within their limits such local police, sanitary and other-similar regulations, as are not in conflict with general laws” prevents the passage by a municipality of an ordinance which limits loads on its improved streets to ten tons, after the legislature had passed Section 7246 et seq., which by inference permits loads of twelve tons on‘improved streets.

In Billings v. Railway Co., supra, the authority of the city of Cleveland to include in its charter a provision that consent of abutting owners of property shall not be required for the construction, extension, maintenance or operation of a public utility by original grant or renewal, unless such public utility is of such a character as to constitute an additional burden upon the rights of property owners in such highways, was involved. It was held that the granting of permission and the making of a contract to construct and operate a street railway in the streets of a city is a matter that may be provided for in a charter adopted by a municipality under Article XVIII of the Constitution.

It was urged in that case that the charter provision was invalid because it conflicted with the provisions of Sections 3777 and 9105 of the General Code, which required the consents of a majority of property owners, as represented by the foot front, as a condition for the making of the grant referred to. It is said in the opinion, at page 485: “The claim of the plaintiffs in this case is that the ownership and control of the streets for the purpose of travel is vested in the legislature as the representative of the people of the state.”

It was in that case shown that until the adoption of the amendments in 1912 the course of legislation under the old constitution seemed to clearly disclose that the control of streets had been regarded as a matter chiefly of municipal concern; the control to be exercised under such regulations as the legislature prescribed, it being, until the amendments, the source of municipal authority.

The Revised Statutes, and afterwards the General Code, provided that municipalities shall have power to lay off, establish, plat, grade, open, widen, narrow, straighten, extend, improve, keep in order and repair, light, clean and sprinkle streets, and shall have the care, supervision and control of public highways and streets within the corporation, shall cause them to be kept open, in repair and free from nuisance; and also provided that streets may be vacated by the city, and their continued use as streets abandoned. Sections 3632 and 3635, General Code, empower the city to adopt regulations to prevent injury to highways from overloaded vehicles and to prescribe width of tires of vehicles used for transportation.

In the Billings case it was held that there was no property right involved, and the rule laid down in Hamilton, Glendale & Cincinnati Traction Co. v. Parish, 67 Ohio St., 181, was approved, to the effect that the consents of owners of lots abutting on a street to the construction and operation of a street railroad on such street are not property-rights, but rights in their nature personal to each owner of an abutting lot; that such personal rights were bestowed by the general assembly on the owners as a check on the power of municipal authorities. The court in the Parish case say, at page 192: “This was done, as held by this court in Roberts v. Easton, 19 Ohio St., 86: ‘To protect owners of property on the streets of cities * * * from the exercise of arbitrary power on the part of the city authorities in permitting the streets to be used for street railroads.’ ”

The view in those cases was that the statute requiring consents of abutting owners was in the nature of a restraining regulation to protect the property owners in the manner stated. It was an exercise of the police power. But in the Billings case it was held that under the home-rule amendment the state had no power to impose such restraint, and that the city, in the exercise of the governmental authority therein conferred, had control of its streets and was permitted to make provision in its charter for the construction and operation of the street railway in its street's, wholly without reference to and unaffected by the general laws of the state touching the subject.

Mr. Justice Brewer in St. Louis v. Western Union Tel. Co., 149 U. S., 465, said at page 467: “Control over the streets resides, somewhere. As the legislative power of a State is vested in the legislature, generally that body has the supreme control, and it delegates to municipal corporations such measure thereof as it deems best. The city of St. Louis occupies a unique position. It does not, like most cities, derive its powers by grant from the legislature, but it framed its own charter under express authority from the people of the State, given in the constitution.” And, again, at page 472, he said: “But if the city had power to contract * * * for the use of the streets, it was because it had control over that use.” Ohio cities now have the same status under our constitution that St. Louis had then, in the respects referred to.

Now, if the location, vacation, extension, widening, curbing, guttering, paving, maintenance and control of streets are attributes of local self-government, which belong to the municipal governments under the home-rule amendment, it is only the application of the most familiar principles to say that the city is entitled, as a necessary incident to these attributes and this control, to do everything that is reasonably necessary to make them effective. And there is no language in the home-rule amendment which indicates that it was ever intended that the right of the city under that amendment to exercise the governmental control of the streets should end when it had located and surveyed the street, prescribed its width and grade, excavated it and put in the broken stone and concrete, laid the brick, stone or asphalt upon it, paid for all of these things out of the municipal treasury and assumed full responsibility for keeping the street open, in repair and free from nuisance; and that thereafter this domestic, municipal and local concern should be subject to the uninformed supervision of a foreign authority. It is a necessary incident to the governmental power of the city to do the things above stated in the construction and control of its streets, to make such reasonable provisions for their proper and economic use as its close knowledge of the necessities of the situation and the structure of the streets themselves demonstrates to be proper.

Knowledge of its own conditions might lead a city to construct streets of such heavy material and in such manner in the manufacturing and wholesale sections as to make proper the passage over them of loads heavier than twelve tons, and thus to assist in the advancement of its commercial and industrial enterprises.

The object of the home-rule amendment was to permit municipalities to use this intimate knowledge and determine for themselves in the exercise of all the powers of local self-government how these and similar local affairs should be conducted.

There is no express declaration in Section 3 of Article XVIII that the general laws referred to therein include the right to take out of the control of municipalities streets that have been laid off, constructed and improved by them, and paid for by their citizens, and there is no- implication of such authority from the clause “and to adopt and enforce within their limits such local police, sanitary and similar regulations as are not in conflict with general laws.” The implication that arises from that clause is to be drawn from the use of the words “local” and “general.” The context shows that they both relate to “police, sanitary and similar regulations.” The general laws concerning these things are manifestly laws which apply uniformly throughout the state. They are general for that reason. They involve the concern of the state for the peace, health, morals and safety of all of its people, and the protection of their property and rights, wholly separate from and without reference to any of its political subdivisions; such laws for instance as regulate the morals, of the people, the purity of their food, the protection of the streams, the protection of life and property, the safety of buildings, and similar matters. These matters are not local — they are general.

When the state passes a law which prevents the running of an automobile upon highways faster than at a certain rate, and in the business and closely built up portions of a city faster than at a certain lesser rate, that is a regulation for the protection of the lives of the people of the whole state and has no special relation to any of the political subdivisions of the state. Such a law applies upon all streets without reference to the character of the street or its structure, except as prescribed by the law itself. But the prescribing of the maximum weight of loads which may be moved upon a street constructed and improved by a city in accordance with its particular conditions and requirements is not a regulation of the character referred to in Section 3 of Article XVIII.. That simply looks to a matter of business management and economic wisdom in connection with the city’s local governmental affair.

Plaintiff in error cites The Cleveland Telephone Co. v. The City of Cleveland, 98 Ohio St., 358. The telephone company operated a line partly within and partly without the city. The controversy was with reference to the authority of the city to fix rates for service furnished by the company. The company had in former years, entered the city and constructed the line pursuant to statutes then in force. The line was the property of the company. No part of the expense of construction or maintenance was paid by the city. The city had no proprietary interest in the property or the enterprise; and had no duty and was subject to no liability in connection with its operation. The majority of the court in that case held that the city did not have the power to fix the rate. Two members, Judges Wanamaker and Johnson, did not concur.

In Stange v. The City of Cleveland, 94 Ohio St., 377, also cited, there was involved an express constitutional provision, Section 37, Article II, which provides that except in emergencies not to exceed eight hours shall constitute a day’s work for workmen engaged in any public work carried on by the state or any public subdivision thereof, whether done by contract or otherwise. This provision was found not to be self-executing, the legislature had enacted no law to enforce it which covered the time of violation by the defendant, and the ordinance of the city was, therefore, held valid. But as the constitutional provision had expressly applied to the entire state concerning public work carried on by the state, or any of its subdivisions, it was necessarily incumbent upon the general assembly to enact a law to enforce the provision in the entire state. The power and duty to enact that legislation was general and its application was state-wide. The constitutional provision and its, purpose to conserve the health and strength of the people apply alike to the people of the whole state. It is such a general regulation as we have described.

The history of legislation in Ohio during a long period shows that the term “police regulations” has been treated as having the meaning we have above indicated. (Fitzgerald et al. v. The City of Cleveland, 88 Ohio St., 338, 359.) The constitutional convention must have had this long-accepted meaning in mind when it used the term. The phrase is “local police, sanitaiy and other similar regulations.” Why specify “sanitary and other similar regulations” if the words “police regulations” were intended to be all inclusive.

In a very recent case, Sligh v. Kirkwood, Sheriff, 237 U. S., 52, at page 59, it was said concerning the police power: “At an early day it was held to embrace every law or statute which concerns the whole or any part of the people * * *. The police power, in its broadest sense, includes all legislation and almost every function of civil government.”

It is therefore very apparent that the clause in question here could not have been intended to include every law passed by the legislature as distinguished from general laws prescribing “police, sanitary and other similar regulations,” for in that case the provision in the same section (Section 3) conferring all powers of local self-government on the municipality would be vain and meaningless. Such a construction would make Section 3 self-contradictory and self-destructive. It would violate a rule which has been universally approved, and which requires that the whole section should be construed together and that effect must be given to every part and sentence.

As stated by Cooley in his work on Constitutional Limitations (7 ed.), page 92: “One part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.” By specific grant from the people the municipality became clothed with part of the sovereign power of the state, that is, as said by Shauck, C. J., in the Lynch case, supra, such powers of government as in view of their nature and the field of their operation are local and municipal in character. There was entire agreement in that, case that by the municipal home-rule amendment the people made a new distribution of sovereign governmental power.

As stated in Billings v. Railway Co., supra, at page 485:

“This involves no lack of the harmony that is essential and no loss by the state of its proper authority over the city and its people. The charter becomes the organic law of the municipality so far as such local powers are concerned. But the authority of the state is supreme over the municipality and its citizens as to every matter and every relationship not embraced within the field of local self-government.

“A fine illustration of the successful working out of the division and distribution of sovereign governmental powers is furnished by the national and state governments in the American system.”

The federal government and each state occupies and moves within its own sphere in the exercise of its powers. Each is sovereign within its own sphere. On many matters in which congress has paramount jurisdiction, the state may legislate until such time as congress acts upon the subject. As to such matters, when the power of the national government is exercised, that of the state is superseded.

Since the foundation of the government the courts of the country have, in numerous cases, been called upon to consider the line between the authority of the federal government and that of the states. Although there has been a gradual and satisfactory progress, no full and exact definition of the .dividing line has even yet been made. That is, disputes concerning it still arise. However, no one has ever contended that there is no such dividing line, or, that, because of the absence of an exact and complete definition of it, the exercise of the divided sovereignty was impossible or impracticable.

Section 7 of the home-rule amendment confers power on the municipality to frame and adopt a charter for its government, and to exercise thereunder all powers of local self-government as provided by Section 3. That is, the people of the municipality are given power to construct the machinery of their own local government and to operate it themselves.

A charter is not power. It is the symbol of power. It provides the means and the methods to exercise powers. But it is us.eless unless the powers intended to be exercised are at hand.

It must be remembered that neither the state in the passage of general laws, nor the municipality in the passage of local laws, may make any regulations which are unreasonable. The means adopted must be suitable to the ends in view, they must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation. 6 Ruling Case Law, 236; In re Steube, 91 Ohio St., 135, 140; The Toledo Disposal Co. v. The State of Ohio, 89 Ohio St., 230; 19 Ruling Case Law, 805; Mo. Pac. Ry. Co. v. Tucker, 230 U. S., 340, 347, and Cincinnati v. Pub. Util. Comm., 98 Ohio St., 320.

For instance, the ordinance involved in this case could, in a proper proceeding, be subjected to the test of its reasonableness and its impartiality in its application, but such a test does not affect the power of the municipality to enact legislation that is reasonable and impartial.

The constitution authorizes the city to exercise part of the sovereign power, and in the proper exercise of that part it is immune from general laws. If this is not so, it will have been demonstrated that this provision of the organic law, which was so long desired and so thoroughly discussed, and which the people believed had given them the power to manage their own local affairs, is an empty shell.

The judgment will be affirmed.

Judgment affirmed.

Nichols, C. J., Matthias, Wanamaker and Robinson, JJ., concur.

Wanamaker, J.,

concurring. I heartily concur in the judgment in this case, and, in the main, in the opinion, save and except what is said concerning, The Cleveland Telephone Company v. The City of Cleveland, 98 Ohio St., 358. The whole comment of the opinion touching this case is as follows :

“The controversy was with reference to the authority of the city to fix rates for service furnished by the company. The company had in former years entered the city and constructed the line pursuant to statutes then in force. The line was the property of the company. ' No part of the expense of construction or maintenance was paid by the city. The city had no proprietary interest in the property or the enterprise; and had no duty and was subject to no liabilítv in connection with its operation.”

By the clearest implication this reference to the telephone case approves that judgment and the grounds upon which the same is based.

I desire here and now to emphasize my vigorous dissent from that judgment and the grounds thereof as stated in the opinion, or upon any other grounds.

The first line quoted above would indicate that the telephone case was distinguishable from this case because in the telephone case the city sought “to fix rates for service furnished by the company.”

Here is a clear admission that the city has not the right and power under the constitution, as discussed in the telephone ca§e, to fix such rates. If the city has no right to fix such rates as to telephones, it has no right under the constitution to fix such rates as to street car service, water service, gas, light, heat and power service, or the rate for any other product or service furnished by any public utility. That doctrine with one sweep shears the city of all its police power in the first half of Section 3.

Is it intended by this language, which seeks to distinguish the telephone case from the truck case, to hold, that, by reason of the fact that “The [telephone] company had in former years entered the city and constructed the line pursuant to statutes then in force,” a company entering a city and seeking to construct lines pursuant to the statutes now in force would be subject to the city charter and not to the state statute? If the language has any significance at all this is the plain intendment of it, and yet no one would contend that under the constitution and laws of Ohio there could be such a distinction.

Why insert the language “No part of the expense of construction or maintenance was paid by the city?” The same is true as to the truck. It is a private or proprietary interest. But both operate upon the streets.

Neither is the telephone company case distinguishable from this truck case for the reason that the telephone company’s lines extend partly without the city.

The telephone company was not wholly within the corporate limits. of the city. Its lines did extend outside of the corporate limits, but so did the street extend outside of the corporate limits, and many other streets of the city of Cleveland extended outside of the corporate limits. But why should one street be regulated within the city by a charter and another street regulated within the city by a statute? It is incredible. All streets within the city must be subject to the same power, regulated by the same authority, the same police power; by the city or state. You cannot make any such technical distinction that is practicable and reasonable.

In the telephone case the subject-matter of regulation was the street of the city of Cleveland — its use and occupation by the telephone company and the “terms and conditions” of such use.

'In the truck case we have the same identical question, the use and occupation of the streets of the city of Cleveland by a truck; and the same police power that fixes the terms and conditions, including fares' for the telephone, must fix the “terms and conditions” for the truck. The telephone is a public utility in fact and in law. The truck is a public utility in fact, and may at any time the legislature sees fit, under proper circumstances, be made a public utility in law. They are both transportation agencies. The telephone company by steel wire transports messages. Froelich by the use of a steel truck transports merchandise. They both use t-he same city street. If the Froelich case relating to steel trucks upon the streets of Cleveland is rightly decided, then the telephone case with reference to steel wires on the streets of Cleveland was wrongly decided. If upon the contrary the Cleveland telephone case was rightly decided, then this case is wrongly decided.

True in the telephone case the question involved was the size of the fare, while in the truck case the question involved was the size of the load, but in both cases there was involved the regulation of a practical public utility in the street. The use and occupation of the street and the terms and conditions under which such use and occupation should be exercised involve the clear and practical exercise of police power contrary to a state statute. As to the truck we hold that the charter controls. As to the telephone we hold that the charter does not control, but that the statute controls. The judgments are entirely inconsistent, clearly repugnant, and wholly irreconcilable by any fair process of reasoning.

It is regretted that in this, truck case nothing whatsoever is said in the syllabus about police power, and no attempt is made in the syllabus to even refer to the telephone case or the doctrine therein announced. This cannot fail to impress the bar and bench of Ohio as an evasion or makeshift from the principles announced in the syllabus of the telephone case. The dootrine in that case involves two propositions. The first proposition is contained in the first paragraph of the syllabus as follows:

“The regulation of rates for services rendered or commodity furnished by a public utility is an exercise of police power.”

That proposition is primary and elementary, and, so far as I am able to observe, it is the universal doctrine of all of our courts, state and federal.

From the remaining paragraphs of the syllabus, reenforced by the opinion, the second proposition involved arises, to-wit, that such police power is a state power; at least, where the state exercises such police power the municipality is denied the right to exercise such police power in any manner or in any wise conflicting with the exercise of that police power by the state.

Of course it must be conceded on all hands that the exercise of .governmental power by the city of Cleveland in the regulation of the load that trucks may carry over its paved streets is a police power, and it must likewise be conceded that in this instance the exercise of that power by the city of Cleveland -is in clear conflict with the statute; that is to say, what the statute leaves lawful, a twelve ton load, the ordinance of the city makes unlawful. By indirection and clear implication from the judgment in the truck case the city charter is declared to be the paramount law, though the city has here exercised the identical police power that it exercised in the telephone case, which, in that case, was held to be an unconstitutional exercise of the police power by the city.

In this case, as in other home-rule cases, this court has become greatly confused because it has not undertaken in any wise to define the two branches of Section 3, Article XVIII, known as the home-rule amendment. The whole section reads:

(Part One) “Municipalities shall have authority to exercise all powers of local self-government and”

(Part Two) “to'adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Now, the first part evidently refers to all municipal powers in all municipal affairs, else it would not use the term “local self-government,” and, after all, “municipal affairs” was the particular subject-matter under consideration before the constitutional convention in this section of the article. Therefore, when its members granted “all powers of local self-government” they clearly must have intended to grant whatever police power was necessary for sufficient and serviceable self-government. To argue that they did not intend to grant police power and yet intended to grant “all powers of local self-government” is an utter absurdity, because even a schoolboy who has lived in a city and studied the first elementary textbook on civil government knows that without police power a government has no more vitality than a dirty dishrag.

Police power is the very backbone, heart and head of all government, and especially municipal government. And yet this court held in the telephone case that by virtue of Part Two, above, police power was taken from the city, or rather was not intended to be granted to the city — but was reserved for the state entirely and exclusively — save and except to supplement state legislation.

If Part One stood alone it would be difficult to read any doubt into it so far as its scope and extent were concerned. The language is as general as the English language can be made.

Now, one thing is quite evident, and that is that by the use of the word “and” after the words “local self-government” the constitutional convention and the people adopting the constitution intended to “add” some power. If “and” means anything, it means to “add” to and not to “subtract” from.

What was the power they intended to add? It could not have been municipal power, because that had been .fully and wholly granted in Part One. It, therefore, must have been state power, and when they provided for additional state power they wisely provided that it should conform to the exercise of the state power by the state. The difficulty here arises from the fact that the court forgot or ignored the duality of every city or village in the state. That duality is as follows:

1. It is a municipal community, incorporated as such, organized as such, with its own peculiar municipal affairs, its peculiar conditions, social, industrial, sanitary, and the like, as to which Judge Shauck, speaking for the court in the Lynch case, supra, clearly and convincingly held that the city, upon the adoption of a charter was immune as to general laws.

Now, that immunity does not exist in Part Two, because Part Two provides for uniformity; that is to say, when laws are to be enacted for the municipality as a mere political subdivision of the state, upon matters that are inherently general and uniform throughout the state, that are inherently of the same nature and operating effect, such as obtain in any other political subdivision of the state, as obtain within or without a municipality, but in no wise peculiar to any particular municipality, then as to such general conditions legislation should be by general laws. In short, therefore, we may say that in the exercise of municipal powers in municipal affairs the municipality shall enjoy immunity.

2. In the exercise of state powers upon general and uniform conditions throughout the state, uniformity throughout the state shall be the rule, and the municipality shall exercise its power with a view to preserving that uniformity as to state affairs.

The question then that should be primary and paramount in each case is this: Is it a state affair or is it a municipal affair ? If it is a municipal affair, it comes under Part One. If it is a state affair, it comes under Part Two.

I held in the telephone case that the regulation of affairs within the city between the telephone company and the residents of the city was a purely local or .municipal affair, and, therefore, subject to Part One, and I likewise hold that the regulation of the truck upon the streets of the city of Cleveland, within the city, is also a purely local and municipal affair and as such is governed by Part One and not by Part Two of said Section 3.

Until this distinction is recognized and applied, the lines between municipal jurisdiction, upon the one side, and state jurisdiction, upon the other, under the home-rule amendment, will remain cloudy and confused, so that neither lawyer nor layman can determine the meaning of this amendment as practically applied to the affairs of municipal government.

Surely it is to be hoped that the logical effect of the judgments in the telephone case and this truck case shall not reduce the municipal power of the city in municipal affairs to the minimum of control of its streets to the extent of speed or load, but deny control of the streets to the extent of regulating tolls, fares and rates for the products and service of the public utilities that are peculiarly and inherently municipal in everything but ownership.

It is well to remember that there, was once an issue in this country known as “taxation without representation.” It was fought out and won, and has never been seriously questioned since, and today, universally, local authorities are given the fundamental right to determine their own taxes, even though in some states the people have vested in the legislature the right to fix limits as to taxation, but not to levy or assess taxes.

By parity of reason and all the laws of logic it would seem that the people of the local communities should likewise have the right to determine how much they shall be taxed in the shape of rates, fares, tolls, and the like, for the service and product of public utility corporations.

The principle is home rule in fixing the taxes, and it should be home rule in fixing the fares. Democracy demands the one as well as the other, and the constitution of Ohio provides for both.

Jones, J.,

dissenting. I dissent from the judgment because the section of the constitution is so plain and unambiguous that it does not call for judicial construction. Section 3, Article XVIII of the Constitution, provides that municipalities shall have authority to adopt and enforce within their limits such local police regulations as are not in conflict with general laws. By unwarranted judicial construction the word “not” has been bodily taken from the provision, so that it now reads, in effect, “municipalities shall have authority to adopt and enforce within their limits some local police regulations as are not in conflict with general laws.”

By Section 7246, General Code, the state law permitted motor trucks weighing- twelve tons to be operated “over and upon the improved public streets, highways, bridges or culverts within the stateand by Section 7250, General Code, the state provided that the weight of loads should not be decreased or prohibited by any municipal ordinance or regulation. There is, therefore, a conflict between the state law and the municipal ordinance, which limited the load to ten tons. The regulation of weights by the city was a police regulation, adopted by the municipality, in the exercise of its police power, and since its operation was confined within the municipal limits it became a local police regulation. I know no authority anywhere which holds otherwise. The city concedes it is a police regulation. In the closing paragraph of the majority opinion the same concession is made when municipalities are cautioned to be careful not to exercise arbitrary or unreasonable limits in the adoption of such regulation. The law is a general law having uniform operation over the entire state. As stated in the law itself, it prohibits the operation of such vehicles over the “improved public streets, highways, bridges or culverts within the state,” and, therefore, since this municipal police regulation is in conflict with a general law upon the same subject-matter, the ordinance must fall. Neither specious argument nor legal sophistry can change the plain and simple language of the constitutional provision under discussion. The judgment in this case is in direct conflict with the principle announced in The Cleveland Telephone Co. v. The City of Cleveland, 98 Ohio St., 358, Stange v. The City of Cleveland, 94 Ohio St., 377, and Greenburg v. The City of Cleveland, 98 Ohio St., 282. Other Ohio cases might be cited where the principle has been sustained by various judges in their opinions.

This judgment overrules the principle upheld in the Cleveland Telephone Company case, supra. The streets of the city were submitted to the burden of location of poles and conduits therein with consequential damage thereto. Similar burdens are imposed and like damages would accrue from the propulsion of heavy trucks over these streets. Both telephone and truck traffic operate within and without the city limits. The telephone rates regulated in the Cleveland case were purely local and affected the lives and safety of no one, either within or without the city. In Stange v. Cleveland, supra, this court held that an ordinance of a chartered city, fixing hours of labor, was “a local police regulation applying only to the municipality in which it was passed, but if this local regulation conflicts with the general law it is invalid.” There the police power was exercised to conserve the health and strength of the people. In the instant case, it is exercised by the state to conserve all the highways of the state, — country and town, — with equal right of commerce given to all its citizens using such thoroughfares.

The majority opinion deals with “implications” arising from the constitutional clause. There is no necessity of dealing in implications, no need for construction. The mandate of the constitution is clear and comprehensive. Section 3, Article XVIII, in its entirety, reads as follows:

“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.”

The effect of the decision in this case is. to make that section come to a close after the word “self-government.” It ignores entirely the latter clause of the section. The latter clause is plainly a limitation upon the power of local self-government, in that it grants municipalities authority to adopt only such local police regulations as are not in conflict with general laws. If these powers of local self-government included police, sanitary and similar regulations, there would be no need of attaching the latter portion of the clause to this section of the constitution. Here is found the only warrant for municipal authority to deal with local police regulation, and it is not only plainly apparent, but specifically stated, that these municipalities have authority only to adopt and enforce such local police regulations as are not in conflict with general laws. This, covers all police regulations, without any such differentiation as is attempted here. It is intimated that the only police regulations intended to be withdrawn from municipal authority are those of statewide concern, those “which apply uniformly throughout the state” or which “involve the concern of the state, for the peace, health, morals and safety of all its people.” If such were intended, they would ipso facto be withdrawn from charter control because of their state-wide character. But the constitutional prohibition extends, to local police regulations which may conflict with general law. And, since regulation of both speed and weight of trucks is concededly a police regulation, it is difficult to see how, in case of conflict with state law, the city could not regulate speed but could regulate weight. I fear that the judgment in this case leaves the law of the state in confusion worse confounded. It may be that the bench and bar of the state will be able to reconcile this case with the uniform decisions of this court upon this subject, but I confess I am unable to do so.

It has been often held by this court that the police powers of the state reside primarily in the state as sovereign, but so long as. the state does not act these charter cities may exercise local police powers ; or, if the state does act, they are permitted to adopt and enforce police regulations that are not in conflict with the general laws of the state. Certainly we have nothing to do with the legislative policy. No doubt there is a crying need for the exercise of police regulations affecting heavy loads propelled over the city streets. ' So also there is the same need for regulation of the highways of the state, but in this instance the state has exercised its power over the subject-matter. It has done so in a way that prohibits the various municipalities through which the highways' run from making varying regulations affecting the size of loads passing through the municipal limits.  