Silvey v. Commissioners of Montgomery County, Ohio

• Decision Date: 01 June 1921
• Docket Number: 29.
• Citation: 273 F. 202
• Parties: SILVEY et al. v. COMMISSIONERS OF MONTGOMERY COUNTY, OHIO, et al.
• Court: U.S. District Court — Southern District of Ohio

273 F. 202

SILVEY et al. v. COMMISSIONERS OF MONTGOMERY COUNTY, OHIO, et al.

No. 29.

United States District Court, S.D. Ohio, Western Division.

June 1, 1921

Alexander R. Hawthorne, of Troy, Ohio, for plaintiffs.

John A McMahon and O. B. Brown, both of Dayton, Ohio, for defendants.

Before DENISON, Circuit Judge, and SATER and PECK, District Judges.

PER CURIAM.

The plaintiff, a taxpayer of the city of Dayton, Ohio, and a citizen of Ohio, for himself and others similarly situated assails the constitutionality of the Conservancy Law of Ohio 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.' 104 O.L. 13.

The city of Dayton, Ohio, certain of its officers, the Miami Conservancy District, and several railroad corporations are made defendants. A hearing on the plaintiff's application for a temporary injunction has been had in accordance with the requirements of section 266 of the Judicial Code (Comp St. Sec. 1243).

The claim is vaguely made that the construction of storage dams by the Miami Conservancy District across the Great Miami river and its tributaries and the Miami and Erie Canal has not been affirmatively authorized by Congress, that no plans were submitted to or recommended by the Chief of Engineers or authorized by the Secretary of War for the building of such dams, and that therefore their erection is in violation of section 10 of the Act of March 3, 1899, 30 Stat. 1151 (section 9910, Comp. Stat.). In Koehne v. City of Dayton, 97 Ohio St. 341, 119 N.E. 651, it was held that the Great Miami river is not a navigable stream at any of the points at which dams are in process of erection, and that neither such dams nor the public works incident to future protection against floods in any wise impede or impair navigation; but, aside from the conclusion thus reached by the state court, the fact still remains, if the plaintiff's contention be true, that the only party entitled to complain of the action taken is the United States, unless the plaintiff is individually injured differently from the general public in degree and kind. Mayor of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 98, 9 L.Ed. 1012; Carver v. San Pedro, L.A. & S.L.R. Co. (C.C.) 151 F. 334. The plaintiff has not brought himself within the prescribed exception.

The act in question is charged to be obnoxious in 6 different respects to the Constitution of the United States and to some 37 provisions of the Constitution of Ohio. Most of the objections urged are unimportant and even frivolous. Only those will be considered which are deemed worthy of notice.

The bill charges that the act deprives the plaintiff and other similarly situated property owners of their property without due process of law and denies them the equal protection of the law. The fallacy of this claim has been conclusively settled by Miami County v. Dayton, 92 Ohio St. 215, 110 N.E. 726, Orr v. Allen (D.C.) 245 F. 486 (a three-judge case), and Orr v. Allen, 248 U.S. 35, 39 Sup.Ct. 23, 63 L.Ed. 109. See, also, O'Neill v. Leamer, 239 U.S.at page 253, 36 Sup.Ct. 54, 60 L.Ed. 249.

The averment is made that the Conservancy Act, by providing for the organization and membership of the common pleas court in a district embracing territory within more than one county, and by conferring jurisdiction and authority on such court to establish conservancy districts, delegates legislative power to such court, and thereby violates both the state and the federal Constitution. This contention was decided adversely to plaintiff in Snyder v. Deeds, 91 Ohio St. 407, 110 N.E. 1068, and Miami County v. Dayton, 92 Ohio St. 215, 234, 235, 110 N.E. 726. Drainage or conservancy districts may, like school districts, be established by legislative sanction. The power conferred on the court of common pleas is not unlike that delegated to township trustees, county commissioners, and other bodies, authorizing them to organize districts for the construction of public improvements and for taxing or assessing the lands benefited thereby. Such enactments have almost uniformly been held to be a delegation of legislative power, not prohibited by the organic law. The propriety of delegating authority to a local court to frame a conservancy district is, in any event, a state question. O'Neill v. Leamer, 239 U.S.at pages 247, 248, 253, 36 Sup.Ct. 54, 60 L.Ed. 249.

On August 12, 1913, prior to the passage of the Conservancy Law, the city of Dayton, by virtue of section 7, art. 18, of the state Constitution, providing for home rule by municipalities, adopted a charter securing to itself local self-government. The plaintiff claims that by the adoption of such charter the city and the state of Ohio became bound in contract, whereby there were vested in the city's officers all matters of local improvements and taxation, and that legislative enactments involving the exercise of the police power, and seeking to guard the public health, safety, convenience, and welfare, are without application to such municipality. It is averred that the officials charged with the execution of the provisions of the Conservancy Act are appropriating property of and within the city and availing themselves of funds realized by the taxation of such property, and in so conducting themselves are impairing the obligations of the contract existing between the city and the state, and consequently violating both the state and the federal Constitutions. If the officials of the conservancy district are abusing the power conferred on them by statute, that fact cannot be considered as action of the state forbidden by the federal Constitution. It is also clear that the home rule provisions of the Ohio Constitution authorize and the adoption of the Dayton charter thereunder constitutes governmental and not contractual action. Section 3 of article 18 provides that--

'Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws.'

The powers conferred upon chartered cities by the provisions of sections 3 and 7, art. 18, are not only purely local and purely municipal, but purely governmental. State v. Cooper, 97 Ohio St. 86, 91, 119 N.E. 253; State v. French, 96 Ohio St. 172, 184, 117 N.E. 173, Ann. Cas. 1918C, 896; State v. Lynch, 88 Ohio St. 71, 102 N.E. 670, 48 L.R.A. (N.S.) 720, Ann. Cas. 1914D, 949. These cases cannot be reconciled with the theory of a contractual relation between the city and the state. Prior to the decision of Miami County v. Dayton, the Supreme Court not only knew that the city of Dayton had adopted a charter in pursuance of the home rule provisions of the Constitution, but had considered certain features of such charter. State v. Edwards, 90 Ohio St. 305, 107 N.E. 768. In the Dayton Case the court found no inconsistency in the coexistence and contemporaneous operation of the Conservancy Act and the home rule method of government that may have been adopted by any municipality within the bounds of the conservancy district, and expressly held, in 92 Ohio St.at page 236, 110 N.E. 732, that the home rule doctrine in no wise applies to the creation of drainage or conservancy districts where the power to be exercised is peculiarly a state, sovereign, police power.

The state could not bargain with or deprive itself of the right properly to exercise its police power, nor could the city of Dayton bind itself by a contract which is or might become injurious to the peace, order, health, or welfare of its people. Telephone Co. v. Cleveland, 98 Ohio St. 358, 365, 121 N.E. 701; Stone v. Mississippi, 101 U.S. 814, 819, 25 L.Ed. 1079. The general laws referred to in section 3 of article 18 are those relating to police, sanitary, and other similar regulations, which operate uniformly throughout the state. The enactment of such general laws still rests in the Legislature. They provide for the peace, health, welfare, and convenience of all the people, entirely separate and distinct from and without reference to any of the state's political subdivisions. Fitzgerald v. Cleveland, 88 Ohio St. 338, 359, 103 N.E. 512, Ann. Cas. 1915B, 106.

The act, as is permitted by section 1d, art. 2, of the Constitution of Ohio, was declared to be an emergency act necessary for...