Bd. Of Edn. v. Columbus

• Decision Date: 04 April 1928
• Docket Number: 20903
• Citation: 160 N.E. 902,118 Ohio St. 295
• Parties: Board Of Education Of City School District Of Columbus v. City Of Columbus.
• Court: Ohio Supreme Court

160 N.E. 902

118 Ohio St. 295

Board Of Education Of City School District Of Columbus v. City Of Columbus.

No. 20903

Supreme Court of Ohio

April 4, 1928

Municipal corporations - Free water for public schools or other public buildings - Section 3963, General Code, unconstitutional - Section 4, Article XVIII and Section 19, Article I Constitution - Legislature cannot limit municipality's constitutional right to own and operate public utilities.

1. That portion of Section 3963, General Code, which prohibits a city or village or the waterworks department thereof from making a charge for supplying water for the use of the public school buildings or other public buildings in such city or village is a violation of the rights conferred upon municipalities by Section 4 of Article XVIII of the Ohio Constitution, and is unconstitutional and void. (East Cleveland v. Board of Education, 112 Ohio St. 607, 145 N. E., 350, overruled.)

2. That portion of Section 3963, General Code, above referred to is unconstitutional and void for the further reason that it results in taking private property for public use without compensation therefor, in violation of Section 19, Article I of the Ohio Constitution.

3. Municipalities derive the right to acquire, construct, own lease and operate utilities the product of which is to be supplied to the municipality or its inhabitants, from Section 4 of Article XVIII of the Constitution and the legislature is without power to impose restrictions or limitations upon that right. (Euclid v. Camp Wise Assn., 102 Ohio St. 207, 131 N E., 349, approved and followed.)

The facts are stated in the opinion.

Mr. Edward C. Turner, attorney general, and Mr. Charles F. Ohl, for plaintiff in error.

Mr. Chas. A. Leach, city solicitor, and Mr. John L. Davies, for defendant in error.

MARSHALL C. J.

The city of Columbus brought suit against the board of education of the city school district of Columbus, Ohio, to recover charges for water service rendered by the municipal plant to the public school buildings within the city of Columbus. The board of education defended on the ground that Section 3963, General Code, exempts boards of education from such charges. That section provides in part:

"No charge shall be made by a city or village, or by the waterworks department thereof, for supplying water for extinguishing fire * * * or for the use of the public school buildings in such city or village."

The controversy is in every essential detail identical with the case of City of East Cleveland v. Board of Education of City School District of East Cleveland, 112 Ohio St. 607, 148 N. E., 350, decided May 26, 1925. There has been no change in the personnel of this court since that decision. That decision was rendered by two members of this court; the other five judges dissenting. Two judges were able to render a judgment under authority of a provision in Section 2 of Article IV of the Ohio Constitution, which provides:

"No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the Court of Appeals declaring a law unconstitutional and void."

In the East Cleveland case, the lower courts had declared Section 3963 to be constitutional, and two members of this court were empowered to affirm that judgment over the dissent of the other five. In the instant case, the situation is reversed, the lower courts having declared the statute unconstitutional and void, and a majority of the court have power to affirm that judgment. The several members of this court entertain their respective views upon the legal questions involved, as expressed in the opinions published in that case, and the dissenting opinion in that case becomes the reasons of the five members of this court in support of the judgment of affirmance of the judgment in the instant case, and that opinion will therefore be adopted by reference and without repetition. This opinion might well close at this point, but it is believed that a service may be rendered by calling attention to the deplorable situation which has grown out of the practical operation of the aforesaid constitutional provision.

After the decision of the East Cleveland case, the city of East Cleveland, being dissatisfied with the minority judgment of this court, brought another action in the hope of finding a Court of Appeals more favorable to its views. it succeeded in having the second case submitted to the Court of Appeals of the Ninth district. The judges of the Ninth district were unanimous in reaching the same conclusion as the judges of the Eighth district in the former case, and therefore the same conclusion of the two judges of this court in the case reported in 112 Ohio St. 607, 148 N. E., 350. The law upon this subject seemed by those decisions to be quite well settled as to all municipalities within the territorial boundaries of the Eighth and Ninth appellate districts. The city of Columbus is located in the Second appellate district, and the city solicitor of the city of Columbus, not being in the least discouraged by the law firmly established in the Eighth and Ninth appellate districts, nor by the minority judgment of this court, brought this action to recover, under facts and circumstances exactly parallel to the East Cleveland controversy. In his brief in the trial court he frankly stated: "This action is brought in a frank endeavor to make effective the opinion of a majority of the Supreme Court." Neither the Court of Common Pleas of Franklin county nor the Court of Appeals of the Second appellate district felt bound by the minority judgment of this court, and the Court of Appeals frankly so stated in its opinion in the following pronouncement:

"In the very nature of superior and inferior courts, the latter should follow adjudicated cases by the higher court when the judgment of the higher court rests upon the concurrence of a majority of the judges, but we are of opinion that where the judgment of the Supreme Court rests upon the concurrence of less than a majority that such judgment is binding only in that particular case as an adjudication, but is not binding in other cases under the rule of stare decisis."

In the course of that opinion, the Court of Appeals further stated that it did not determine the case upon the authority of either of the opinions in the East Cleveland case, but upon its own judgment found Section 3963 to be unconstitutional.

It has always been recognized as a sound theory that the most important function of courts of last resort is to render uniform the conflicting decisions of inferior tribunals within the jurisdiction of such courts, but the practical operation of this theory is destroyed in the state of Ohio, so far as the constitutionality of statutes and ordinances is concerned, by the constitutional provisions above referred to. The best possible illustration of that fact is found in the decision of the instant case and the decision of the East Cleveland case. In the Second Appellate District, Section 3963 is unconstitutional and void, and must be so treated by all the municipalities of that district. In the Eighth and Ninth Appellate Districts the statute is valid, and must be so administered. In the other six appellate districts, municipalities may not know whether that section is valid and is applicable to municipalities within their jurisdictions until the question has been submitted to the various Courts of Appeals of those districts, but all municipalities in those districts may be assured that whatever judgments are rendered by their respective Courts of Appeals will be affirmed by this court until such time as either the constitutional provision is abrogated or changes occur in the personnel of this court. It would be difficult to describe or even imagine a more deplorable situation. That the Court of Appeals in the instant case was justified in disregarding the former decision of this court rendered by two judges finds authoritative sanction in the case of Hertz v. Woodman, 218 0. S., 205, 30 S. Ct., 621, 54 L.Ed. 1001. In that case it was declared:

"The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. The court below in this instance, when called upon to reconsider its former construction of the inheritance tax act, found itself confronted by the fact that this court had been equally divided in opinion as to the proper interpretation of the act, and for that reason alone obliged to affirm the ruling of that and other courts against the legality of the tax which had been collected. If the decision of the court under review had been in favor of the legality of the tax an affirmance must likewise have resulted from an equal division. That court also found that its own former view of the act had not been satisfactory to the Circuit Court of Appeals for the Eighth Circuit, which court had decided contrarywise in Westhus v. Union Trust Co., 164 F. 795. In such circumstances the court below was not only free to regard the question as one open for determination, but one which might well be certified to this court, that the question of law which had never been authoritatively decided by this court might be so determined by an instruction as to how it should decide the matter when thus presented for reconsideration."

In the opinion, which was written by Mr. Justice Lurton, the following earlier cases were cited and commented upon, all of which had stated similar propositions: Etting v. Bank of U.S., 24 U.S. (11...