
    The State, ex rel. Ellis, City Solicitor, v. Blakemore, Clerk, et al.
    
      Municipal corporations — Ordinances passed by sufficient votes but erroneously recorded as failed — Mandamus lies to compel authentication and recording, when — County commissioners may construct bridge or viaduct in municipality, when — Sections 2A21, 69A9 and 7557, General Code — Consent by affirmative majority vote of council sufficient, when —City planning commission without jurisdiction over bridge or viaduct, when.
    
    1. Where a municipal ordinance has received sufficient votes of council to duly enact same, and that fact is evidenced by the record of the proceedings of the council, although it is there erroneously stated that such ordinance failed of passage, it is the duty of the presiding officer and clerk of the council to authenticate and of the latter to record the same which may be enforced by writ of mandamus.
    2. A board of county commissioners is authorized by the provisions of Sections 2421, 6949 and 7557, General Code, to construct a bridge or viaduct as a part of a road improvement into, within or through a municipality in such county upon the consent of the council thereof, and where no part of the expense of such improvement is assumed by the municipality such requirement of consent is fully met by the affirmative vote of a majority of the duly elected members of the council for the passage of an ordinance granting such consent.
    3. Neither the provisions of the charter of the city of Cincinnati nor the provisions of Section 4366-2, General Code, relative to the powers of a city planning commission, have any application to the erection of a bridge or viaduct on an intercounty or main market road.
    (No. 20457
    Decided June 1, 1927.)
    In Mandamus.
    
      This is an original action in this court wherein the relator seeks a writ of mandamus requiring the mayor of the • city of Cincinnati, who is the presiding officer of the council, and the clerk of the council of said city, to authenticate by their respective signatures, and the clerk to record, a certain ordinance which it is claimed was passed by the council of said city on March 16, 1927, granting the consent of council to a proposed improvement of intercounty highway No. 7 by the board of county commissioners of Hamilton county.
    The case was submitted upon the undisputed facts disclosed by the petition, answer, and reply. The facts thus presented, which are essential in the consideration of the law questions submitted, are in substance as follows:
    Eighth street between Broadway and State avenue in the city of Cincinnati, including the section thereof known as the Eighth street viaduct, between McLean avenue and Evans street in said city, and the section thereof lying between Evans street and a point 100 feet west of Burns street, has been designated by the director of highways and public works of the state of Ohio as part of intercounty highway No. 7. More than 30 years ago, in order to cross over the stream known as Mill-creek, which runs a short distance south of Eighth street and empties into the Ohio river, and in order to cross above grade the numerous steam railroad tracks crossing at grade said Eighth street between McLean avenue and Evans street, there was constructed upon and as part of said Eighth street an elevated bridge or viaduct known as Eighth street viaduct, and since the construction thereof all through travel on Eighth street has used said viaduct portion thereof.
    Said intercounty highway No. 7 extends across the southern part of the state of Ohio, near the Ohio river, between Cincinnati on the west and Gallipolis on the east, and extends through several counties.
    By Section 1189-1, General Code, passed April 4, 1923, said highway was declared to be a main market road and was designated as the Atlantic and Pacific Highway, which is one of the great transcontinental highways of the United States, extending from the Atlantic seaboard to the Pacific coast.
    The Eighth street viaduct portion of said highway is in a worn-out and dilapidated condition, and unless reconstructed and improved without further delay will become unfit and unsafe for public travel. The territory or basin which said viaduct spans and crosses is commonly known as the Millcreek bottoms, and there are located in said bottoms, underneath said viaduct, a stream flowing at right angles thereto, known as Millcreek, and a vast network of tracks of the numerous steam railroad systems entering Cincinnati. The viaduct portion of said highway is the only artery of travel crossing said railroad tracks above grade and spanning Mill-creek and the Millcreek bottoms between the Ohio river on the south and the Liberty street viaduct on the north, a distance of more than a mile.
    The board of county commissioners of Hamilton county, in conjunction with the department of highways and public works of Ohio and the county surveyor of said county, has duly made an investigation of the work necessary to be done looking to the improvement of said highway by the construction over and along the same of a viaduct or bridge not only for the length of that section of said highway between McLean avenue and Evans street, being the section occupied by the present viaduct, but also over and along that section of said highway between Evans street and a point 100 feet west of Burns street.
    On February 4, 1927, the board of county commissioners of Hamilton county duly adopted a certain resolution wherein they approved the preliminary plans for the construction of said viaduct over Eighth street, from McLean avenue to a point 100 feet west of Burns street, as submitted by the county surveyor, and transmitted that resolution to the council of the city of Cincinnati, accompanying the same with a communication requesting the approval of council. These plans contemplate the construction of a viaduct not only for the length of the present viaduct, but also to span that section of said highway lying immediately west of the present structure, being between Evans street and a point 100 feet west of Burns street, the entire cost of such new viaduct to be paid out of the funds of Hamilton county and from state aid, and no part thereof to be paid or assumed by the city of Cincinnati. Under such plans one entire viaduct or bridge would be constructed over and along said highway from McLean avenue to a point 100 feet west of Burns street, which would take the place of the existing Eighth street viaduct and an existing* small bridge or viaduct near Burns street.
    On March 16, 1927, there was before the council of the city of Cincinnati an ordinance granting the consent of the council to the improvement of said intercounty highway No. 7 by the construction of the proposed viaduct in accordance with' said plans, which had theretofore been referred to a committee, a majority whereof reported the same with approval, and, after duly suspending the rule requiring reading upon three separate days, a yea and nay vote was duly taken on the passage of said ordinance and recorded on the minutes and journal of said council, the nine members composing the council all being present and voting, which said vote resulted in 5 yeas and 4 nays.
    ' The defendants, as the presiding officer and clerk of. said council, respectively, have failed and refused to authenticate and record said ordinance, ánd will, unless otherwise duly ordered, continue to fail and refuse, such failure and refusal being based upon the claim that said ordinance had not been legally passed for the reason that the city planning commission of the city of Cincinnati had disapproved the plans, because of which disapproval a two-thirds vote of council was necessary to override said disapproval of the planning commission.
    
      'Mr. Bert H. Long, Mr. Charles P. Taft, 2d, prosecuting attorney, and Mr. Herbert F. Koch, for relator.
    
      Mr. Alfred Bettman, for defendants.
    
      Mr. Wm. Jerome Kuerts, amicus curiae.
    
   Matthias, J.

The real question in this case is whether the proposed improvement is one of which the city planning commission, either by virtue of the charter of the city of Cincinnati or the provisions of Section 4366-2, General Code, has any jurisdiction, or one with reference to which it has any duty to perform. The refusal of the mayor and the clerk to authenticate the ordinance in question is based upon the claim that a two-thirds instead of a majority vote is necessary because of the adverse report of the city planning commission. If the planning commission had any authority to act in this matter and its report had any validity, then the refusal of the officials was right, but if this improvement is one with which the city planning commission had nothing to do, then the refusal of the officers to act in the respect stated was wrong, and such action being the refusal to perform a duty especially enjoined by law may be enforced by mandamus.

The improvement which is the basis of the controversy in this case has been undertaken by the county commissioners of Hamilton county, under and by virtue of the provisions of Section 6949 of the General Code. That section authorizes the board of county commissioners to construct a proposed road improvement into, within, or through a municipality when the consent of the council of said municipality has been fi«st obtained, and provides that “such consent shall be evidenced by the proper legislation of the council of said municipality entered upon its record*1.” It is further provided thereby that the council may assume and pay such portion of the costs pnd expenses of that part of the proposed improvement within said municipality as may be agreed upon between the board of county commissioners and the council. The portion of the section which is particularly pertinent in the consideration and decision of the issue here presented is as follows:

^‘If no part of the cost and expense of the proposed improvement is assumed by the municipality, no action on ■ the part of the municipality, other than the giving of the consent above referred to, shall be necessary; and in such event all other proceedings in connection with said improvement shall be conducted in the same manner as though the improvement were situated wholly without a municipality.”

The contention of counsel for the relator, that the ordinance of the city of Cincinnati giving the consent of the municipality to the erection of the Eighth street viaduct under the proposed plans which received the affirmative vote of a majority of the council was thereby passed, and consequently should be authenticated by the presiding officer and clerk of the council, and recorded by the latter, is based upon the claim that the construction of the proposed viaduct by the county commissioners with state aid, under and by virtue of statutory authority, is an improvement of state-wide concern, the same being made by the state through its agency, the county commissioners, and that, therefore, the municipal authorities have no jurisdiction of or control over such improvement; and this is urged particularly in view of the fact that no part of the costs and expenses of the proposed improvement is to be assumed by the municipality.

It is to be observed that the position thus taken by counsel for the relator is based upon the view that the county commissioners are authorized to construct this viaduct as a road improvement into, within, or through a municipality. The sovereign power of the state of Ohio over its highways is not in question here. Surely that power cannot be seriously questioned. Pursuant to that power the Legislature has provided by Section 1189-1 of the General Code that:

“The road now known as intercounty highway No. 7, extending along the Ohio river * * * through the municipalities of Cincinnati [and then reciting names of municipalities to and including Gallipolis], in the state of Ohio, is hereby declared to be a main market road to be known and designated as the Atlantic and Pacific Highway.”

It is agreed that this highway is “one of the great transcontinental highways of the United States, extending from the Atlantic seaboard to the Pacific coast,” and that this Eighth street viaduct is a portion of that highway. Under and by virtue of the provisions of Section 1189, General Code, the street of which the proposed viaduct is a part is “deemed to be a state road within the meaning and for the purposes of Section 7557 of the General Code.” The latter section, as does also Section 2421, General Code, requires the county commissioners to construct and keep in repair all necessary bridges on all state and county roads of general and public utility running into or through such village or city. Interurban Ry. & Terminal Co. v. City of Cincinnati, 94 Ohio St., 269, 114 N. E., 258; State, ex rel. Bushnell, Trustee, v. Board of County Commrs. of Cuyahoga County, 107 Ohio St., 465, 140 N. E., 81. Authority is thereby conferred to construct a viaduct or high level bridge. State, ex rel. Howell, v. Eirick, 84 Ohio St., 503, 95 N. E., 1156.

By the provisions of Section 1226, General Code, the term “highway” includes a bridge which forms a part of a road authorized by law. Under and by virtue of Section 1184, General Code, the director of highways and public works of the state has general supervision of the construction, improvement, maintenance, and repair of all intercounty highways and main market roads and all bridges and culverts thereon. He is required to aid and advise the county commissioners in the construction and improvement of such highways and to approve the design, construction, maintenance, and repair of all bridges or other improvements on intercounty or main market roads, and to cause plans, etc., therefor, to be prepared when requested by the authorities having charge thereof.

The construction of this viaduct as a part of such highway being therefore an improvement of general concern, under proceedings, by the state through its duly designated and authorized agencies, cannot be affected in any manner by any action or proceeding of municipal authorities further than clearly and expressly delegated.

It is contended by counsel for the respondents that the provisions of both the charter of the city of Gincinnati and of Section 4366-2, General Code, require that the plans for the construction of said viaduct must be submitted to and receive the approval of the city planning commission, or, in the event of its disapproval, must have the favorable ■action of not less than two-thirds of the members of the council.

In addition to what has heretofore been said with reference to the character of the improvement contemplated, and the fact that it is an improvement of state-wide importance, and not merely local in character and use, and that it is being constructed by the state through an agency specifically delegated and authorized, attention need only be directed to the proposition that the charter, being necessarily limited to matters that are local and municipal in character, cannot apply to or affect a proceeding by the state under its police power. Numerous cases involving a consideration of this proposition have been before this court. An analysis or even a citation of those cases is unnecessary. Practically all pf them are cited and discussed in the case of Cleveland Telephone Co. v. City of Cleveland, 98 Ohio St., 358, 121 N. E., 701. The principle here involved was decided in the comparatively recent case of Niehaus, Bldg. Inspector, v. State, ex rel. Board of Education of City of Dayton, 111 Ohio St., 47, 144 N. E., 433. The following excerpt from that opinion is particularly pertinent to this case:

‘ ‘ The power to exercise sovereignty in local self-government, and local police power not in conflict with general law, does not confer upon municipalities the power to enact and enforce legislation which will obstruct or hamper the sovereign in the exereise of a sovereignty not granted away * * *. The sovereignty of the state extends throughout the municipalities in all matters not clearly surrendered, and that sovereignty may not be defeated by the enactment of an ordinance inconsistent with general laws.”

If a controversy such as this were to arise with reference to the location of a new statehouse or state office building in the city of Columbus, would it be contended that either the charter or the provisions of the statute relied upon here would apply and have the effect of authorizing the city planning commission of the city of Columbus to control the location thereof or exercise any authority whatever with reference to approving the plans or determining whether such structure should be or could be erected upon the statehouse grounds, or upon any other location determined upon by the state government? It is our opinion that no such power of the sovereign has been delegated to the municipality. The police power conferred upon the municipality is only local police power, and the provisions of the charter in question must therefore be held to have reference only to improvements of purely local and municipal concern constructed by municipal authorities at municipal expense.

It is our opinion that the provisions of Section 4366-2 of the General Code, in so far as that section confers any authority, are limited to like improvements and structures. Not only is there no power • conferred upon a municipal planning commission to control the location or dictate the plans of construction of improvements under state jurisdiction and control, but the language used quite clearly indicates that the provisions of this statute have reference only to local improvements. That the improvements over which it was contemplated a municipal planning commission should have any control were within such limitation is manifested by the reference therein to “the department head of the department which has control of the construction of the proposed improvement,” and by the provision that such department head and the council by a two-thirds vote may overrule such disapproval of the planning commission. And such limitation is still more apparent in the last sentence of the section, where it is provided that:

“The commission may make recommendations to any public authorities or to any corporations or individuals in such municipality or the territory contiguous thereto, concerning the location of any buildings, structures or works to be erected or constructed by them.”

This provision makes it perfectly clear that no authority was conferred by the preceding portion of the section upon the planning commission to control or to have any part in the location of any public structures except such as are municipal in character and use, for as to any others it “may make recommendations” only, which is a denial of authority to do anything more than that. Moreover, Section 4366-2 and Section 6949, General Code, can be harmonized only upon the theory that the former has reference merely to municipal improvements, for under the latter section the mere consent is all that is necessary, the municipality paying no part of the expense and therefore its approval of plans not being required, and that consent having been given the proceedings go forward “in the same manner as though the improvement were situated wholly without a municipality.” It may be further observed that the amendment of Section 6949, General Code, adding the provision just quoted to the section as it theretofore read, was made subsequent to the enactment of Section 4366-2, General Code.

It follows that the consent of the municipality, evidenced by proper legislation of council entered upon its record, as provided by Section 6949, General Code, is all that is required, and in the absence of any provision to the contrary it must be concluded that 'the vote of only a majority of the legislative body of the municipality was contemplated. No presumption will be indulged to effect a delegation of power to a municipality which at the same time limits or curtails the sovereign power of the state. The consent of the municipality has been evidenced by proper legislation, in that concededly the ordinance granting same has received the affirmative vote of a majority of the members of the council, which is sufficient not only under Sections 4224, 4227, and 4237, General Code, but also under the general provisions of Article 2, Section 5, of the charter of the city of Cincinnati. It therefore becomes the duty of the presiding officer and clerk of the council to duly authenticate said ordinance.

Though the pleadings set up the conflicting opinions of the city planning commission and the planning committee of the council respecting the location — or, rather, the length of the proposed viaduct — and the reasons supporting their recommendations, it is not our province to consider or determine any question of policy, but only the question of power, and the problem as to plans and details of the proposed improvement must be solved by those to whom that duty has been delegated and upon whom that authority has been conferred.

Writ allowed.

Day, Allen, Kinkade and Robinson, JJ., concur.  