Miami County v. Dayton

• Decision Date: 04 June 1915
• Docket Number: 14834,14829
• Parties: The County Of Miami, Et Al. v. The City Of Dayton, Et Al.
• Court: Ohio Supreme Court

110 N.E. 726

92 Ohio St. 215

The County Of Miami, Et Al. v. The City Of Dayton, Et Al.

14834, 14829

Supreme Court of Ohio

June 4, 1915

Constitutional law-Remedial acts defined, and construed, how- Conservancy act-Section 6828-I et seq., General Code (104O.L.,13) constitutional-Error proceedings-Jurisdiction-Section 12247 General Code (103 O.L., 431)-Exercise of police power-Conservancy amendment-Section 36, Article II,Constitution, 1912-Due process of law-Taxation-Three-tenthsmill levy-"Tax" and "assessment" defined-Equal protection of laws-Limitations of home-rule doctrine-Delegation of legislative of judicial power-Emergency measures-Failure to receive two-thirds vote-Valid at expiration of ninety days when-Emergency character may be challenged when-Constitutionality of statutes favored.

1. A statute that provides a rule of practice, a course of procedure or a method of review, is remedial in its nature and should be broadly and liberally Construed to accomplish the purposes of its enactment.

2. Section 12247, General Code, is remedial in nature and is sufficiently broad and Comprehensive under Section G, Article IV of the Constitution of 1912 to include the case at bar.

3. The conservancy act, as found in volume 104 0. L., 13 et seq., which is entitled "An act to prevent floods, to protect cities, villages, farms and highways from inundation, and to authorize the organization of drainage and conservation districts," is a valid exercise of the police power, under the inherent sovereign legislative power of the state, and particularly under the conservancy amendment of the Ohio Constitution, known as Article II, Section 36, as adopted September, 1912.

4. Said act contains abundant provisions which grant not only to the parties to the cause but to anyone who may desire to become a complainant or objector, his "day in court," and by reason thereof said act does not violate the "due process" clause of the federal constitution. This includes the three-tenths mill levy of the act.

5. While the letter of the act uses the word "tax" in a general sense, the whole act, its spirit, its subject-matter and its actual operation, taken together, make it manifest that the word "tax" as therein used is speCial and local and what is known under the laws of Ohio as an "assessment."

6. Taking the act by its four corners and its practical operation, it is self-evident that such assessment is to be made with reference to benefits and burdens and not according to any whimsical, arbitrary or unreasonable standards, and by reason thereof it does not violate the provision of the federal Constitution as to "equal protection of the laws."

7. Before a court is warranted in declaring a legislative act unconstitutional, it must clearly appear that the statute is obviously repugnant and irreconcilable with some specific provision or provisions of the Constitution. If there be a reasonable doubt as to such conflict the statute must be upheld.

8. The doctrine of home rule does not now, and never did, have any application to the governmental affairs of a state or the governmental affairs of a district within the state created by the state for the exercise of certain state sovereign powers.

9. Where a power is quasi-legislative, quasi-administrative or quasi-judicial, or so mixed in its nature that it may be regarded as a combination of all of them, the legislature may in the first instance characterize such power and confer it either upon an existing agency of the government or an agency especially created for that purpose. There is no delegation of legislative power in the conservancy act violative of any constitutional provision.

10. An act of the general assembly, purporting to be an emergency act but which failed to receive the two-thirds majority in one branch of the general assembly, as required by the constitution for an emergency act, becomes at the end of the ninety-day referendum period a valid act of the general assembly if otherwise constitutional.

11. The judgment of the general assembly as to the emergency character of an act under the constitutional amendment of 1912 is not conclusive, but its judgment in that behalf may be challenged in a proper proceeding at any time within the ninety day period, either as to the constitutional vote or the emergency character of the act.

QUO WARRANTO. The facts are stated in the opinion.

Messrs. Bowman & Bowman; Mr. A. Jay Miller; Mr. H. B. Emerson; Mr. Horace W. Stafford; Mr. Frank Goodrich, prosecuting attorney of Miami county; Mr. D. F. Mills, prosecuting attorney of Shelby county; Mr. F. G. Long, prosecuting attorney of Logan county; Mr. Frank J. Dorley, city solicitor of Sidney; Mr. G. T. Thomas, city solicitor of Troy; Mr. P. R. Taylor, solicitor of Ft. Laramie; Mr. E. K. Campbell, solicitor of DeGraff; Mr. F. B. McConnell; Mr. A. N. Summers; Mr. George A. Beard; Mr. Dow Aiken and Mr. J. A. Kerr, for plaintiffs in error, the County of Miami et al.

Messrs. Brown & Frank; Mr. John A. McMahon and Messrs. McGhee, Davis & Bougler, for defendants in error, the City of Dayton et al.

Mr. Robert P. Duncan, prosecuting attorney, and Mr. William J. Ford, assistant prosecuting attorney, for relator.

Messrs. Webber, McCoy & Jones, for respondent.

WANAMAKER J.

We have in this case almost every variety of legal and constitutional question. Indeed, the record and briefs are so voluminous in the treatment of the issues raised that it will be impossible, outside of a volume, to note and discuss them all. Those meriting serious attention will be noted below. I. The question as to the jurisdiction of the court of appeals to entertain the proceedings in error from the court of common pleas.

This court has already held in Snyder et a]. v. Deeds et al., 91 Ohio St. 407, decided in December, 1914, that "the portion of the sixth section of said (conservancy) act which provides for appeal from an order refusing to establish such district to the court of appeals of said county, upon giving bond as provided therein, is void because repugnant to Section 6, Article IV, of the Constitution." It is now claimed that by reason of such holding as to "appeal" there is no authority of law, either by statute or constitution, conferring jurisdiction "in error" upon the court of appeals. This court has repeatedly held that proceedings in error are fairly and reasonably included in the term "appellate jurisdiction," and it will be therefore necessary to examine the constitution with reference to the appellate jurisdiction conferred therein upon the court of appeals.

Section 6, Article IV of the Constitution of 1912, contains the following language as to the jurisdiction of the courts of appeals:

"The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law."

That this proceeding in error was to reverse a judgment Of the court of common pleas, there can be 110 doubt. The mere fact that it was constituted of more than one common pleas judge does not alter the fact that it was to all intents and purposes a court of common pleas. The only question to be determined here is whether or not there was any provision "by law" for this proceeding in error.

It seems to be agreed upon both sides that whatever authority has been provided "by law" is by virtue of Section 12247, General Code (103 O. L., 431), which reads as follows:

"A judgment rendered or final order made by a court of common pleas or by the superior court of Cincinnati, or by a judge of either of such courts, may be reversed, vacated or modified, by the court of appeals having jurisdiction in the county wherein the common pleas or superior court is located, for errors appearing on the record."

A statute undertaking to provide a rule of practice, a course of procedure or a method of review, is in its very nature and essence a remedial statute. It should not be narrowly and technically construed but upon the contrary should receive a broad and liberal construction to effect the purposes of its enactment. The language of the foregoing statute is as broad and comprehensive as language can well be made and clearly covers all judgments, whether predicated on an ordinary civil action, chancery case, special proceeding under a statute or any other judgment for which no special review provision is made by the statute itself.

But it is claimed that in the conservancy act special provision was made by way of "appeal," and that the appeal having failed, proceedings in error must now fail. True it is that where special provision is made by the statute for appeal or review, and such special provision is conformable to the constitution, such special provision must be followed as against general provisions, but where those special provisions fail because they fail to conform to the constitution, as they have failed in this case, the general provision, if it be sufficiently comprehensive, will then prevail. The court of appeals rightly and lawfully exercised jurisdiction in this cause under said section of the statute and pursuant to the constitution. II.

This conservancy act, as a whole, is challenged as null and void for sundry and divers reasons which may be grouped under two heads:

First. That it failed to have the constitutional majority required for the valid enactment of an emergency law.

Second. That the act is in conflict with various provisions of the constitution of Ohio and the constitution of the United States.

First. No claim is made that at...