City Of Xenia v. Schmidt

• Decision Date: 21 December 1920
• Docket Number: 16532
• Citation: 101 Ohio St. 437,130 N.E. 24
• Parties: The City Of Xenia v. Schmidt
• Court: Ohio Supreme Court

130 N.E. 24

101 Ohio St. 437

The City Of Xenia v. Schmidt

No. 16532

Supreme Court of Ohio

December 21, 1920

Constitutional law - Presumption of validity of legislation - Classification of persons, things, etc. - Legislative powers and limitations- Temporary and permanent street obstructions-Classification in municipal ordinance valid when - Equal protection of laws - Legislation valid although scope limited.

1. A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body.

2. That presumption of validity of such legislative enactment cannot be overcome unless it appear that there is a clear conflict between the legislation in question and some particular provision or provisions of the constitution.

3. Legislation, in order to be definite and certain, must either expressly, or by clear implication, classify the persons things, conditions and the like, upon which the law shall operate.

4. Classification is an inherent right and power in legislation limited only by the constitution and the judicial constructions thereunder.

5. A classification must not be arbitrary, artificial, or evasive but there must be a real and substantial distinction in the nature of the class or classes upon which the law operates.

6. In respect to such distinctions, the legislative body has a wide discretion, and the legislation involving classification will not therefore be held invalid unless the classification attempted is clearly and obviously unreasonable to the point of discriminating against members of the same class, so as to deny them the equal protection of the laws.

7. A classification of street obstructions into temporary and permanent, and providing that the ordinance shall operate only upon temporary obstructions, is a real and reasonable classification, and does not violate any provision of state or federal constitution.

8. The guarantee of "equal protection of the laws" under our constitutions is fully complied with when the law operates equally upon each member of a constitutional class.

9. A legislative body may direct its legislation against any evil as it actually exists, without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are not forbidden. (Yee Bow v. City of Cleveland et al., 99 Ohio St. 269, approved and followed.)

The facts are stated in the opinion.

Mr. J. A. Finney, city solicitor, and Mr, M. J. Hartley, for plaintiff in error.

Mr. Marcus Shoup; Mr. M. A. Broadstone; Mr. F. L. Johnson and Messrs. McGrew & Laybourne, for defendant in error.

WANAMAKER J.

But one question is presented by the record in this case and that is the constitutionality of an ordinance of the city of Xenia, the essential parts of which are as follows:

"It shall be unlawful for any person or persons, corporation or corporations, or any agent or employee thereof, to place or deposit, or cause to be placed or deposited upon any street, alley, sidewalk, public highway or public grounds of this city, any wood, coal, box, barrel, crate, cask, keg, casting, lumber, goods, wares, furniture, merchandise, or any other material or obstruction whatsoever, unless for such reasonable time as may be actually necessary for receiving or discharging the same from some store, building or other place, and in such event the same shall be so placed as not to block the street, alley, sidewalk, public highway or public grounds upon which the same is so placed, or to interfere with the free passage of water in the gutters of such street, alley or public highway. Provided: That the provisions of this section shall not apply to nor affect any permanent steps or approaches to buildings already abutting on any street, nor any balcony, bay-window, or column of any building already abutting on any street."

A test case of the constitutionality of the ordinance was made by way of affidavit in the police court of the city of Xenia.

Upon trial in that court defendant in error, H. E. Schmidt, was found guilty of a violation of the ordinance. The defendant in error in every available way protested against the constitutionality of said ordinance and fully saved his rights for a review of his conviction in the court of common pleas.

In the latter court the judgment of the police court of the city of Xenia was reversed upon the sole ground that the ordinance in question was unconstitutional.

The city of Xenia prosecuted error in the court of appeals, to reverse the judgment of the court of common pleas and affirm the judgment of the police court. The court of appeals affirmed the judgment below, and the city of Xenia prosecutes error to this court.

The judgments of the court of common pleas and the court of appeals are both founded upon the following part of the ordinance above quoted, as a constitutional infirmity that is fatal to the validity of the ordinance:

"Provided: That the provisions of this section shall not apply to nor affect any permanent steps or approaches to buildings already abutting on any street, nor any balcony, bay-window, or column of any building already abutting on any street."

Whether or not the ordinance in question is wise or unwise is clearly without our jurisdiction, and clearly within the jurisdiction of the municipal legislative body of the city of Xenia. Whether or not the ordinance is constitutional or unconstitutional is clearly within our jurisdiction, and this constitutional question is the only one considered in this cause, wholly apart from the identity of the parties, and solely as a question of an exercise of municipal power under the Constitution of Ohio.

In the early days of the American state and nation it was an open question whether or not the constitutionality of a legislative act was or was not wholly within the jurisdiction of the legislative body. It was so under the common law of England, from which we had inherited the principles of our American jurisprudence. The English parliament was supreme-exempt not only from judicial supervision, but had been exempt from the royal veto for a century. The sovereignty of England, the mother country, had been in its legislature. In some states, at an early date, the power of judicial review of constitutional questions had been vigorously asserted; in other states it had been vigorously denied. Finally, in 1803, there was decided in the United States supreme court the case of Marbury v. Madison, 1 Cranch, 135,- in which the syllabus holds: "An act of Congress repugnant to the constitution is not law."

But who shall decide whether it is in conflict? That question is answered in the opinion by Marshall, C. J., which has become the foundation of the unique and distinctive American doctrine of constitutional law, and may be fairly designated as the new "Marshall Law." The doctrine and reasoning supporting it are briefly as follows:

"The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. * * *

"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. * * *

"Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

"This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It' is prescribing limits, and declaring that those limits may be passed at pleasure.

"That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction."

This doctrine, if not wholly approved in all jurisdictions, has been so long acquiesced in that it has now become a settled part of our jurisprudence. The nature of this conflict or extent of the conflict is not discussed in the Marbury case, but was shortly afterwards fully considered in the case of Fletcher v. Peck, 6 Cranch, 87, decided in 1810. The opinion by Marshall, C. J., contains the following language:

"The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The...