
    Hayes & Sons v. The City of Cleveland.
    
      Grade of Cleveland.
    
    The city of Cleveland is a city of the second grade, first class.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    On an agreed case filed in the court of common pleas of Cuyahoga county, in which W. J. Hayes & Sons were plaintiffs and the city of Cleveland was defendant, the court rendered judgment in favor of the defendant. On error the judgment was affirmed by the circuit court; and this proceeding is prosecuted to reverse the judgment of both courts.
    The agreed case is as follows:
    “Now come the said W. J. Hayes & Sons and The City of Cleveland, and respectfully represent to the court that there is a controversy between them, arising out of, and depending upon, the facts hereinafter stated; and they hereby present and submit to the court their said controversy, to be by the court determined; upon the facts following, to-wit:
    “The said W. J. Hayes-& Sons is a partnership, formed for the purpose of carrying on business in Ohio, and is so carrying on business in the firm name of W. J. Hays & Sons, which name it has assumed, and by which it is known, in the conduct of said business.
    “The said The City of Cleveland is a municipal corporation within said county of Cuyahoga, state of Ohio.
    
      “On or about the 14th day of March, 1891, the acting superintendant of the census transmitted from the census office in the department of the Interior of the United States, at Washington, to the secretary of state of the state of Ohio, at Columbus, certain statements showing the population of the state of Ohio, by minor civil divisions as officially determined by the count of the returns made under the eleventh census; which statements were duly received by said secretary of state, and the same were reliable sources of information, and the said eleventh census was the federal census of 1890, taken under an act of congress, approved March 1, 1889. Thereupon the said secretary of state prepared from said statements a report or abstract of said census, and said report or abstract was, on or about the first day of April, 1891, printed and publised with, and as a supplement to, the annual report of the said secretary of state for the fiscal year ending November 15, 1890.
    “According to said report or abstract, the said census, which was the then next preceding federal census, the said city of Cleveland had, on the first day of June, 1890, more than two hundred thousand inhabitants, to-wit, two hundred and sixty-one thousand three hundred and fifty-three inhabitants.
    “Thereafter, the said secretary of state prepared, pursuant to the authority of law, another report or abstract of said census, and transmitted the same on or about November 17, 1891, to the governor of Ohio, with, and as a part of, said secretary of state’s annual report for the fiscal year ending November 15, 1891; and on or about the first day of December, 1891, the said secretary of state submitted to the general assembly of the state of Ohio, his said annual report for the said fiscal year, ending November 15, 1891, including said official report and abstract, and the same was received by said general assembly at its next sessions thereafter, being the regular session, begun and held in the city of Columbus, January 4, 1892. Said official report and abstract last above mentioned contained a statement of the population of each and all the municipal corporations in the state of Ohio, as shown and determined by said census of 1890, which was the then next preceding federal census; and according to said report or abstract, and according to said census as shown therein, said city of Cleveland had, on the 1st day of.June, 1890, more than two hundred thousand inhabitants, to-wit: two hundred and sixty-one thousand three hundred and fifty-three inhabitants.
    “On the 13th day of April, 1891, the governor of Ohio, the auditor of state of Ohio, and the secretary of state-of Ohio, at the time of ascertaining the ratio of representation as required by the eleventh section of the eleventh article of the constitution of Ohio, did ascertain what cities of the second grade of the first class were entitled to be advanced to cities of the first grade of the first class, and then did determine that the said city of Cleveland was entitled to be advanced to a city of the said first grade of the first class; that the original of said report was filed in the office of the secretary of state and a copy thereof was, on that day, certified to the general assembly of the state of Ohio, then in session; and in said report appeared the following, to-wit:
    
      ‘Cities first class, second grade, entitled to be advanced cities of the first class, first grade Cleveland. ’
    “On the 14th day of April, 1891, the secretary of state caused said report to be published in the Ohio State Journal, a newspaper published at Columbus, Ohio, and. of general circulation in said city and throughout said state, and in the Cleveland Plain Dealar and Cleveland Leader, both newspapers published in said city of Cleveland, Ohio, and of general circulation in said city of Cleveland and throughout said state. On the 15th day of April, 1891, the said secretary of state certified to the general assembly of Ohio, then in sessionj an abstract-of the population of the different municipal corporations of Ohio, in which the said city of Cleveland appears as a city of the second grade, first class, having a population of two hundred and sixty-one thousand three hundred and fifty three, by the census of 1890, which was then the next preceding federal census, and as having a population of one hundred and sixty thousand one hundred and forty-six, by the federal census of 1880, which was the federal census next prior to that of 1890.
    “On the 15th day of February, 1892, the city council of said city of Cleveland duly adopted a resolution which is in the words and figures following, to-wit:
    “Resolved by the council of the city of Cleveland, that in pursuance of the provisions of section 1549 of the Revised Statutes of the state of Ohio, it is hereby deemed to be expedient that the city of Cleveland should pass from the second grade of the first class, to which it now belongs, to the first grade of the first class, under the operations of the Revised Statutes; and it is hereby declared and determined that the said city shall remain a city of the second grade of the first class.’
    “Prior to the said federal census of 1890, the said city of Cleveland was a city of the first class, second grade, and at no time since the federal census of 1880 has there been in Ohio any other city of the first class, second grade, nor has there, since that census, been any other city in Ohio entitled, by reason of its population according to the federal census of 1880 or 1090, to become a city of the first, class second grade.
    “At no time has any action, other than the adoption of the resolution aforesaid, relating to the grade of said city, or a change of its grade, had or been taken, by the said city, or by the council, or any other officer or officers thereof, or by the voters thereof.
    “Prior to the 9th day of May, 1896, the said city of Cleveland duly advertised for bids for the purchase of bonds of the said city of the par value of $153,000: and on said 9th day of May, 1896, the bid of said W. J. Hayes & Sons, in the sum of $158,265, was by the said city accepted, and the said bonds sold to them.
    “The said city duly tendered the said bonds to the said purchasers, but they refused and still refuse, to accept the said bonds and refused, and still refuse, to pay the said purchase price, or any part thereof.
    “The said W. J. Hayes & Sons deposited with their said bid, as required by the city, a certified check for $7,650.00, payable to the treasurer of said city, as a pledge for their faithful performanee of their said contract of purchase, which check the city still holds.
    “The said bonds are sewer district bonds, issued and sold to provide money to pay a part of the cost of constructing certain specified sewers within certain specified sewer districts in said city and they were issued under authority of section, thirty-six (36) of an act of the general assembly of the state of Ohio, passed April 16, 1883, entitled ‘An act to provide for the construction and repair of sewers in cities of the second grade of the first class.’ (See 80 Ohio Laws, 143.)
    “The said bonds are in due and legal form, and all the proceedings and acts requisite for the validity of said bonds have been duly and legally had and done; and all the facts requisite for such validity exist; and said bonds are the valid and legal obligations of said city, if the said city is of the first class, second grade, unless they are rendered invalid by reason of the invalidity of the said statute under authority of which they were issued.’
    “The said W. J. Hayes & Sons claim that the said city is not of the first class, second grade, and that the said statute under which the ’said bonds were issued is unconstitutional and void, and that the said bonds are, for these reasons, invalid; and the said city claims that it is of the first class, second grade, and that the said statute is constitutional, and that the said bonds are valid. This contention is .submitted to the court, and if, upon consideration, the court shall find right thereof to be with the said W. J. Hayes &Sons,they should be discharged from any liability to the city in the premises, and the said check should be ordered to be returned to them; but if the court should find the right of such contention to be with the city, there should be judgment herein in favor of the city and against the said W. J. Hayes & Sons, for the sum of one hundred and fifty-eight thousand two hundred and sixty-five dollars, and it should be ordered that upon payment thereof, the said bonds be delivered to them, and the said check be returned to them. ‘
    “W.. J. Hayes & Son, by Harry E. Hayes.
    “The City op Cleveland, by Miner G. Norton, Corporation Counsel. ”
    
      Frederick A. Henry and Koine, Carr, Tolies & Goff, for plaintiffs in error.
    
      Minor G. Norton and Phillips, Ford <& Groiol, for defendant in error.
   By The Court.

The power of the legislature to classify municipal corporations and legislate for the classes so made, has been sustained by a long line of decisions in this conrt, and has recently been reaffirmed in State ex rel., v. Baker et al., Ante 1.

On the question whether Cleveland is a city of the second grade, first class, we are of the opinion from the agreed case, that it is such city. Under a proviso contained in section 1549, Revisd Statutes, the advancement of a city from the second grade to the first grade of its class, by increase of population, could be prevented by the action of its city council declaring- it inexpedient to do so. This was done on February 15, 1892. The claim that this should have been done on or before July 1, 1891, is not tenable. The “official report” referred to' in section 1547, Revised Statutes, on which the population of a city is to be ascertained for the purpose of determining the class and grade to which it belongs, is not the report of the superintendent of the census, but the report of an officer of the state, designated by law to make the report. This officer is the secretary of state, and the report is that which he is required by section 1617, Revised Statutes, to make of the name “of each municipal corporation, its grade and class, and its population as ascertained by the preceding federal census.” This report is required by the following section to be transmitted to the general assembly at its next session thereafter. The section does not fix the time when the report is to be transmitted. This is ascertained by section 62 Revised Statutes, and must be on or before November 20th of each year, the time fixed for the making of all reports by state officers. The report was transmitted November 17, 1891, as required by this section, and then became the official report, of which municipal corporations must take notice, and, before the first of the following July, take steps to prevent advancement if by their population, thus shown, they would then advance, and they deem it inexpedient to do so. Hence, the action taken by the council was in' due time, and the city remained and is a city of the second grade, first class; and the act of April 16, 1883 (80 Ohio Laws, 143), authorizing the construction and repair of sewers in cities of the second grade of the first class, applies to the city of Cleveland, and the bonds issued by it in pursuance of this statute, are valid bonds.

The following eases: No. 5040, William G. Dietz v. The City of Cleveland et al., No. 5041, William G. Dietz v. The City of Cleveland, et al., No. 5042, William G. Dietz v. The City of Cleveland et al., No. 5043, William G. Dietz v. The City of Cleveland et al., No. 5044, William G. Dietz v. The City of Cleveland et al., are here on error to the circuit court of Cuyahoga county, and were argued and submitted with the case of Hayes ds Sons v. Cleveland. Each presents substantially the same questions as are presented in that case, and each is for like reasons, Affirmed.  