
    The State ex rel. v. Baker et al.
    
      Classification of cities — Conforms to requirement of constitution— Act conferring corporate powers — Section 1, article IS of constitution — ■Invalid exception does not invalidate class — ■ Constitutional law.
    
    1. A classification of cities for the purpose of legislation based on population, and so that other cities may enter and become members of a particular class without the aid of additional legislation, conforms to the requirement of the constitution, that the general assembly shall provide for the organization of cities and villages by general laws, as determined by a long line of the decisions of this court, and on the ground of stare decisis, should not be disturbed.
    2. A statute made applicable to a particular class so formed, though it confer corporate powers, is not a special act, within the meaning of section one, article thirteen of the constitution.
    3. All doubts should be resolved in favor of a statute, classifying cities, that has stood for a number of years without challenge, and cities have confonned their government to it ; and where to declare it invalid, would necessarily result in great public inconvenience.
    
      4. If, in the formation of a class, an exception is made that is invalid, because the legislature had no power to make it, the exception alone will be treated as invalid, and the class sustained, where that will most likely give effeetto.the prevailing purpose of the legislature.
    (Decided June 23, 1896.)
    
      F. 8. Monnett, Attorney General and Ovicott, Allen & Oobbs, for plaintiff in error.
    . The act creating a Board of City Commissioners for the city of Akron is found in 90 Ohio Laws, 346 et seq. This act is an amendment to an act pas sed two years before, which created such a board for the City of Youngstown. The latter act is found in 88 Ohio Laws, 77 et seq. When the latter act was passed, no other city in Ohio possessed the population requisite to bring it within the classification thereby attempted to be created. When the Akron act was passed, no cities in Ohio could fall within the classification there attempted except the cities of Akron, Youngstown and Springfield, but by section two of said act, the city of Springfield, was excluded. The Akron act is unconstitutional because in conflict with the following provisions of the Constitution of Ohio:
    
      First — All laws of a general nature shall have a uniform operation throughout the State. Art. 2, Sec. 26.
    • Second — The General Assembly shall provide for the organization of cities and villages by general laws. Art. 13, Sec. 6.
    
      Third — The General Assembly shall pass no special act conferring corporate power. Art. 13, Sec. 1.
    
      Fourth — * *•* No law shall be * * * amended unless the new act contains the * * * entire section amended, and the section or sections so amended shall be repealed. Art. 2, Sec. 16.
    
      The General Assembly has provided by general laws having a uniform operation throughout the State, for the organization, classification and government of the municipalities within the State. The act in force when the Akron act took effect, providing for the classification of cities of the second class, is found in 89 O. L., p. 18, Section 1548.
    By the Federal Census for 1890, which is the method provided in Sec. 1548 for ascertaining the number of inhabitants (Sec. 1547), the City of Akron had a population of 27,607.
    The status of the city, as fixed by that act, was, when the Akron act took effect, that of a city of the second class, second grade, but by the proviso in Sec. 1549 as amended April 15th, 1892 (89 O. L. 302), such classification did not become operative without action by the City Council of Akron, and hence Akron remained a city of the second class, third grade; but, if the proviso has no effect, then the Akron act would govern Akron, a city of the second class, second grade, and Youngstown with its population of 33,226 a city of the first class, third grade.
    The Court is required to take judicial notice of the classification of the municipal corporation of the State. R. S., Sec. 1587
    To enable the Court to do so, provision is made for making the class and grade public through the annual report of the Secretary of State. R. S., Sections 1617-1622.
    The Akron act does not, in terms, attempt to amend or modify the sections providing for classifications of municipal corporations, but by Section 21 thereof an effort, in violation of the Constitution, is made to overide all laws with which the Akron act is in conflict.
    
      It is manifest that the limitations as to population were made, and the exception of Springfield created, so that the act, at the time of its passage would only take effect as to Akron and Youngstown.
    This excepted these cities out of a class and made the Akron act special. Railway Company v. Martin Treas. 34 Bull. No. 18, p. 232; State v. Bargus; 53 Ohio St., 94; Carr v. Village W. Carrollton, 8 C. C. Rep. 1; Kenton v. State, 52 Ohio St., 59.
    That-the act confers corporate powers upon the cities of Akron and Youngstown, not possessed by other cities of the class and grade to which they belong is apparent, without discussion.
    
      Arthur J. Rowley, City Solicitor, and Sauder & Rogers, for defendants in error.
    Tested by all the decisions of this court this new classification must be held to be authorized. Bronson v. Oberlin, 41 Ohio St., 476; Costello v. Wyoming, 49 Ohio St., 202; State ex rel. v. Cincinnati, 52 Ohio St., 419; Railway Co. v. Martin, 34 W. L. B., 232. In answer to the claim of plaintiff that this act is in violation of Art. 2, Sec. 16 of the constitution, it is sufficient to say that the new act does contain the entire act amended and the act amended is repealed. But at wry rate, this clause of the constitution has been held to be directory merely. Lehmann v. McBride, 15 O. S. 573.
    This court has repeatedly held that the constitutionality of an act in respect to its being local or general is to be determined by its operation and effect, without reference to its form. State ex rel. v. The Judges, 21 O. S., 1. State ex rel. v. Mitchell, 31 O. S., 592. McCill v. State, 34 O. S., 228. Kenton v. State, 52 O. S., 59. State v. Bargus, 53 Ohio St., 94. Of the ten grades now known to the law, only two include as many cities as are included in this act. It is insisted that only two cities come within its provisions at present. We do not concede this proposition, for we hold that the act creating “third grade (a)” is void, and therefore Springfield comes within this act; but he that as it may, there are no grades except the * third and fourth of the second class that contain as many as two cities. But testing the act by its future operation and effect we have here the broadest classification known.
    The form of the statute is general fits operation is general, and its effect is. to create a class of municipal governments other than those theretofore provided for. The language is so broad that it includes all cities of the State having the designated population, without regard to any previous classification and without regard to any other distinction than that of population. There is no other statute providing for municipal government so general in its terms or which in fact embraces or may embrace so many municipalities. The basis of the classification is the usual and natural one of population, and there is a margin of 7,000 inhabitants between the smallest and largest city which may fall within its provisions. This is a “substantial condition and characteristic.” It is a wider margin than the general classification theretofore in operation had provided for in many cases which classification has been expressly approved by the judgment of this court. State v. Pugh, 43 Ohio St. 98; Marmet v. The State, 45 Ohio St., 63; State v. Hawkins, 44 Ohio St., 98; State v. Smith, 48 Ohio St., 211.
    
      The principle upon which classification for municipal corporations may be made is clearly and briefly stated by Judge Williams in his opinion in the case of State v. Cincinnati, 52 Ohio St., 448.
    Referring once more to the act creating cities of the second class “third grade (a),” an examination of that act in connection with the facts will materially aid us in determining the issues in this case. 'At the time of its enactment Akron, Canton, Springfield, Youngstown and anumber of other cities were cities of the third grade. Akron had a population of 27,601, Canton had 26,189, Springfield had 31,895, and Youngstown had 33,220. The limit of population fixed by the act for cities of the “third grade (a) ” was not Less than 28,000 and not more than 33,000 inhabitants. It wili thus be seen that this grade was established by a limit that placed Springfield between Akron, immediately below her, and Youngstown above her, both cities of the third grade. The result was a complete derangement of the entire system.
    If there be any infirmity in the act now under consideration it exists in and arises from that act. Por by it Springfield carves out a figure from the midst of grade limits, leaving cities of the same grade both below and above her in population. She made it impossibl for other cities to enter her own ' grade and impossible for herself to get out of it. If such legislation is permissable then the present act should be sustained, for the worst that can ¡ be said of it is that it creates a new class of cities and leaves her outside where she had placed herself. If the creation of “third grade (a)” is constitutional, then the fact that this act leaves that constitutional classification undisturbed cannot render it unconstitutional; and if the creation of the “third grade (a)” is unconstitutional and void, as we believe it is, the exception of that grade from the provisions of the statute in controversy is an empty form of words, meaning nothing, and Springfield comes ■ under the operation of this statute.
    We are not left entirely without a guide from the courts as to the proper course to be pursued in such cases. See act passed April 16, 1883, (80 O. L. 124), now known as section 2690a, Revised Statutes. State v. Brewster, 39 Ohio St., 653.
   Minshall, J.

This is a proceeding in quo warranto, challenging the right of the defendants to act as a board of commissioners of the-city of Akron. It is claimed that the act- creating the board, and under which the members of the board assumed to act, is invalid on the ground that the act is a special one conferring corporate power. The relator cites and relies on sections one and six of the thirteenth article of the constitution. By the first section, it is provided. “The general 'assembly shall pass no special act conferring corporate powers,” and by the sixth, that it “shall provide for the organization of cities and incorporated villages by general laws.” The act was passed April 20, 1893, and is entitled, “An act to amend an act entitled ‘An act to provide a more efficient government for cities having a population not less than 33,000 and not more than 34,000 inhabitants, passed March 5, 1891.” The amended act was repealed, so that the only question is, whether the classification of cities made by this act, is valid. The classification includes “All cities except cities of the second class, third grade, ‘a, ’ which, according to the federal census of 1890, had, or which according to any subsequent federal census, shall have not less than 27,000 and not more than 34,000.” There would be but little, if any, ground for the claim, had there been no exception in the act, unless we depart from a long line of decisions on the subject, and deny to the legislature, what is settled by these decisions, the power to classify the cities of the state. It will be observed that the class is quite an extensive one; it includes all cities having between 27 and 34 thousand inhabitants, a difference in population larger that many of the cities of the state, and-the class now includes several cities ; and, referring’ to the last federal census, and considering the probable growth of cities in the mean time, based on their growth in the last decade, may include many more at the next federal census. The power of the general assembly to classify cities and enact laws applicable to particular classes so formed, cannot now be successfully questioned. It should be regarded as sta/re decisis. Such legislation is not regarded as contravening either of the provisions above cited.

When a class is formed so as to include any city of the- state wherever situated, coming within the class, the act by which it is formed is, within the sense of the constitution, a general law. State v. Nelson, 52 Ohio St. 88.

It is not to be supposed that, by either of the above provisions, it was intended that the cities and villages of the state were to be governed by one uniform system of laws, applicable alike to each and every city and village in the state. It would be impossible to do so, and adequately provide for all the necessities of the various cities of the state, differing as they do in population, pursuits, and locality; and it is fair to presume that this was as well understood by those who made and adopted the constitution as by those of the present time. And that such was not their understanding’ of the provisions of that instrument, is shown by the fact that, at the first general assembly that met after its adoption, an act was passed “To provide for the organization of cities and incorporated villages,” in which they were classified for the purposes of legislation. 50 Ohio Laws, 237. The language of the act on this subject is, section 40, that, “In respect to the exercise of certain corporate powers, and to the number, character, powers and duties of certain offiers, municipal corporations are, and shall be divided into the .classes following: Cities of the first, and cities of the second class ; incorporated villages and incorporated villages for special purposes.” The next section defines the classes. It is based upon population, and directed to be ascertained in a mode and manner that has prevailed to this time. In 1879, the cities of the state having outgrown the classification of 1852, the general assembly, to meet the new conditions and wants of the cities, adopted a new classification, by which the population necessary for each class was changed, and the classes were divided into grades, also based on population. This classification was carried into and forms part of the Revised Statutes, section 1546 et seq. The power exercised in making the classification of 1879 was not the assumption of any new power of the legislature. It was the same as that exercised in 1852. The classification was a more extensive one, but that did not and could not change the nature and character of the power itself. If the legislature had power to make the classification of 1852, it had. power to make that of 1879, and to amend it or to change it as in its wisdom might seem best. A construction of the constitution sustaining’ the power of the legistature to classify the municipalities of the state, that has been approved and followed by the decisions of this court for near half a century, should not be overturned, simply because the court as now constituted, may think that its predecessors were in error on the subject, and sustained laws that should have been held invalid. A ' consciousness of our own fallibility ought possibly to suggest that we may be, and not that our predecessors were, in error. Though hardly necessary, we will here refer to some of the cases that have been decided sustaining the classification of cities. State ex rel. v. The Judges, 21 Ohio St., 1; State ex rel. v. Mitchell, 31 Ohio St., 592; State v. Brewster, 39 Ohio St., 653; State v. Pugh, 43 Id., 98; State ex rel. v. Hawkins, 44 Id., 108; State ex rel. v. Hudson 44 Id., 137; Marmet v. State, 45 Id., 63; McGill v. State, 34 Id., 228; State ex rel. v. Wall; 47 Id., 499; State v. Toledo, 48 Id., 112; State ex rel. v. Cincinnati, 52 Id. 419. What was said on the subject of the classification of cities in Hixson v. Burson, 54 Ohio St., 470, was notgermain to the case considered. It was not concurred in by all the judges; and, by a rule of this court, adopted in 1857, (6 Ohio St., Note), the concurrence of the judges in an opinion is limited to the part necessary to the decision and expressed in the syllabus.

But it is in the province of the court to determine whether a given act is an exercise of the power of classification, or, on the face of the law, is shown to be merely arbitrary, and in fact, no classification at all. This has been done in a number of cases. Thus in State v. Pugh, 43 Ohio St. 98, the law required action to be taken by a certain board, in five days; this, in connection _ with other provisions, showed, that the only city that could comply with the law, was Columbus, and as certainly identified that city as if it had been named, and therefore the court held the law to be a special one and invalid. So in State ex rel. v. Smith, 48 Ohio St., 211, the law required the bonds of certain officers to be approved by the Superior Court, when it appeared that Cincinnati was the only city that had, or could have a super ior court without additional legislation, and for this reason the law was held to be special and invalid as it conferred corporate power. So in Costello v. Wyoming, 49 Ohio St., 202, the act applied to such villages only in a county having a city of the first grade of the first class, as had not improved their sidewalks under the provisions of certain sections of the statutes, and it was held, that the fact of having sidewalks so unimproved did not furnish a proper ground for classification, and the act was held invalid. So, where the class is limited to the number of inhabitants of a particular city at the last federal census; or to such a. difference in population as to preclude the possibility of its ever applying to other cities at any future census, such acts have been held invalid for the reason that such provisions do not constitute classification in any proper sense of the term. Such acts simply identify a particular city by precluding their application to any ‘other. State ex rel. v. Anderson, 44 Ohio St., 247; Kenton v. State, 52 Ohio St., 59. On the question whether a particular classification is general or not, the rule deducible from the cases is, to consider whether other cities may at a future time, without the aid of additional legislation, enter the class; for it is the possibility that other cities may enter a certain grade of a class, and not the certainty that they will, that gives to a law creating the grade a general character. State v. Smith and State v. Toledo, supra.

But there are no such difficulties with respect to 'the act under consideration. The classification is based on population, and admits of a difference of 7,000 inhabitants among the different constituents of the class, and will, at the next federal census, be in all probability one of the largest classes in the state. Hence the question in this case resolves itself into this, whether the exception of third grade “a,” invalidates what, under the previous decisions of this court, would otherwise be a valid classification of cities for the purpose of, organization and government. We think not. Third grade “a,” was formed by an act adopted March 5, 1891, (88 Ohio Laws, 77); and included all cities having a population of more than 28 and less than 33 thousand inhabitants on the first day of July, 1890, as ascertained by the last federal census, so that cities of this grade would be included in the class in question. Now, if it was not competent to the 'legislature to make this exception to the class formed April 20, 1893, then it is no exception; and the class then formed will include all cities in the state within the limits of the population named; for it was entirely competent to the legislature to make a class that would include all the cities of the state having a population of not less than 27 and not more than 34 thousand inhabitants. Nor can we infer that if the legislature had known that the exception could not be made, the act without the exception would not have been adopted. We should rather infer that in the j udgment of the legislature, there was a necessity for such a class, superior to its creation with an exception of third grade “a” ; and made the exception in a mistaken apprehension as to its powers. The argument is that the act leaves a grade within a grade. But it must be observed that this is what was done when third grade “a” was formed. 88 Laws, 159. It included, according to its maximum and minimum population, all of the first grade, and all of the second above 28,000. If this could not be done for the reason assigned, then third grade “a” for the same reason never was a valid grade, and its exception amounts to nothing. We are not without some precedent in this regard. On April 16, 1883, an act was passed, providing that “In each city of the first, second and third grades of the first class, and in cities of the second class, first grade, and in cities having a population of twenty thousand, and not more than thirty thousand, and in cities having a population of fifteen thous- and four hundred and thirty-five by the last federal census, there shall be a board of tax commissioners. ” 80 Laws, 124. In State v. Brewster, 39 Ohio St., 653, the court sustained the act so far as it was general, saying: “The act of April 16. 1883, as we have seen, applies to cities of the first class, and cities of the first grade of the second class. * * * Being constitutional to this extent, we do not think the validity is affected by the fact —if fact it be — that it is invalid as to other cities referred to therein. We would not be justified in saying that it is probable its passage was made to depend on the fact that such minor cities were embraced by it. Hence, the act is valid as to the cities named, even if invalid as bo the minor cities, which are not brought within any recognized or permissible classification.”

The only difference in the two acts is, that in one there is an exclusion, and in the other there was an inclusion, of certain cities; and, it would seem, that if one may be disregarded and the law held valid, the other may as well. It is the uniform policy of the courts always to sustain acts if they can, particularly so, where, to do otherwise, would result in great public confusion and inconvenience. if not anarchy. The legislature is not now in session and will not be for two years. If the law in question were held invalid, two at least of the principal cities of the state would be deprived of any municipal government whatever. No doubtful considerations as to the power of the ■ legislature to pass the act in question, could atone for such consequences as these. It is the duty of courts not to overlook such considerations. If the cities of Youngstown and Akron are not provided with* a government by this act, no one has been able to point out the class to which they belong and under which they may be governed, and we know of no one.

Petition dismissed.

Burket and Shauck, JJ., dissent.  