Shyrock v. Zanesville
| Citation | 92 Ohio St. 375,110 N.E. 937 |
| Decision Date | 02 July 1915 |
| Docket Number | 14661 |
| Parties | Shryock, A Taxpayer, v. The City Of Zanesville Et. Al. |
| Court | Ohio Supreme Court |
Municipal corporations-Public utilities-Erection and construction of purification plant-Resolution authorizing employment of engineer, etc.-Not within Sections 4 and 5, Article XVIII Constitution (1912), when-Referendum on municipal ordinances-Emergency laws-Section 4227-3, General Code (103 O. L., 212), constitutional-Article II, Constitution (1912).
1. A resolution passed by council of a municipality directing the public service director to employ a competent engineer to prepare plans and specifications for the erection and construction Of a mechanical filtration plant for the purification of the water supply of a municipality wherein there was already established and in operation a complete water system, does not come within the terms of Sections 4 and 5 of Article XVIII of the Constitution in so far as such sections relate to the subject of the acquirement construction, owning, leasing and operating a public utility by a municipality.
2. Section 4227-3, General code, as amended 103 Ohio Laws, 212 authorizing the passage by councils of municipalities of emergency laws necessary for the immediate preservation of the public peace, health or safety, is not repugnant to the constitution but is wholly consistent with all of the sections of Article II when construed together.
The facts are stated in the opinion.
Mr. C T. Marshall, for plaintiff in error.
Mr. A. A. Porter, city solicitor, for defendants in error.
Mr. Edward C. Turner, attorney general, and Mr. Walter M. Schoenle, city solicitor of Cincinnati, file intervening brief by leave of court.
In April, 1914, the plaintiff filed his amended and supplemental petition in the common pleas court of Muskingum county stating among other things that in March, 1914, the council of the city of Zanesville had passed a preliminary resolution directing the public service director to employ a competent engineer to prepare plans, specifications and estimates of cost for the erection and construction of a mechanical filtration plant for purifying the water supply of that city and for such purpose the public service director was therein authorized to contract to pay such engineer the sum of $2,500.
The petition further says that the resolution contained an emergency clause, declaring the measure to be in the interest of public health and safety for the reason that the water supply of Zanesville was impure and dangerous to health and that the state board of health had, in February, 1914, ordered the city to devise plans for the filtration of the water from the Muskingum river.
The petition makes the claim that the foregoing resolution is a proceeding to acquire, construct, own and operate a public utility and to authorize the making of a contract for the purpose of acquiring, constructing, owning and operating a public utility.
It was, in short, the claim of the petition that under Sections 4 and 5 of Article XVIII of the Constitution no valid steps such as were contemplated in the resolution could be taken, and that Section 4227-3, General Code, as amended 103 Ohio Laws, 211, 212, wherein provision was made for the passage of emergency laws by city councils, was unconstitutional and particularly in violation of Section 1f of Article II of the Constitution of Ohio, in so far as it sought to give immediate operative effect to the resolution and thereby avoid a referendum.
Article XVIII of the Constitution deals with the subject of municipal corporations, Sections 4 and 5 reading:
This petition was demurred to. The court of common pleas sustained the demurrer, the court of appeals affirmed this judgment and error was thereupon prosecuted to this court.
The first inquiry will be directed to the matter of ascertaining if the resolution, wherein it provided for the drawing of plans for the erection of a filtration plant, was the first step toward constructing and operating a public utility, within the meaning of Sections 4 and 5 of Article XVIII.
The record shows that the city already had established and in operation a complete water system, and that the resolution in question was adopted pursuant to imperative orders from the state board of health to take steps to purify the same. This purification was to be attained by a system of filtration. We are constrained to hold that the filtration plant under contemplation was a mere incident to the utility already established and in operation. The filtration process was merely and essentially an improvement made necessary to comply with the order of the state board of health, and was not the original construction of a waterworks plant as a utility of the city.
If every repair, addition or improvement to any utility is to be regarded in the same light as the construction of an entire system, the constitutional provision would be impracticable and cumbersome. Evidently no such result was contemplated, and such a construction is not required. Had it been the purpose of the constitution framers to require every repair and improvement to come within the terms of Sections 4 and 5 of Article XVIII, it is reasonable to believe that they would have said so.
It is quite evident that these provisions of the constitution were to have no reference to utilities municipally owned and already in operation, but the plain purpose was to enlarge the powers of municipalities in the construction, acquiring, owning, leasing and operating of utilities not already so constructed, acquired, etc., and to facilitate the construction, owning, etc., of utilities by municipalities within the limitations and safeguards of Section 5, Article XVIII.
If, under the guise of repairing or improving a public utility, any municipality would attempt by resolution to substantially reconstruct a utility, even though municipally owned, and do this without observing the provisions of Section 5 of Article XVIII, the courts of Ohio, no doubt, would be found open and ready to prohibit any such manifest abuse of the power. However, in the instant case there is no suggestion or intimation of altering or rebuilding the plant already existent, but simply to provide for the purification of the water, and this, not on the initiative of the council, but at the command of the state board of health speaking with authority.
The question of major importance, however, in this controversy is the one drawing in question the constitutionality of Section 4227-3, General Code, as amended 103 Ohio Laws, 212 providing for the exemption from the referendum of all so-called emergency measures passed by the legislative bodies of municipalities. If this section be unconstitutional, then all laws passed by city and village councils must await the intervening of ninety days before acquiring any operative force, and no emergency, no matter how urgent, whether that of flood, fire, pestilence or...
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State ex rel. Richards v. Burkhart
...are declared in the Constitution to be self-executing. State ex rel. Kiehl v. Howell, 77 Wash. 651, 138 Pac. 286;Shryock v. Zanesville, 92 Ohio St. 375, 110 N. E. 937. In other cases such provisions are declared by the courts to be self-executing, although not so declared in the Constitutio......
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State ex rel Richards v. Burkhart
...are declared in the Constitution to be self-executing. State ex rel. Kiehl v. Howell, 77 Wash, 651, 138 Pac. 286; Shryock v. Zanesville, 92 Ohio St. 375, 110 N.E. 937. In other cases such provisions are declared by the courts to be self-executing, although not so declared in the Constitutio......