State ex rel. Brubaker v. Brown

• Decision Date: 27 April 1955
• Docket Number: No. 34408,34408
• Citation: 163 Ohio St. 241,126 N.E.2d 439
• Parties: , 56 O.O. 232 The STATE ex rel. BRUBAKER, Mayor, Appellant, v. BROWN, Sec'y of State, Appellee.
• Court: Ohio Supreme Court

Page 241

163 Ohio St. 241

126 N.E.2d 439, 56 O.O. 232

The STATE ex rel. BRUBAKER, Mayor, Appellant, v. BROWN, Sec'y of State, Appellee.

No. 34408.

Supreme Court of Ohio.

April 27, 1955.

Syllabus by the Court.

An enumeration of the inhabitants of of a village at a particular time, made by the Bureau of the Census of the United States Department of Commerce at the request of that village and pursuant to a contract between that village and the Department of Commerce, is included within the meaning of the words, 'any federal census,' as those words are used in Sections 703.01 and 703.06, Revised Code.

This proceeding was instituted in the Court of Appeals to secure a writ of mandamus ordering the Secretary of State to issue a proclamation pursuant to Section 703.06, Revised Code, stating the name of the village of Kettering as a municipal corporation having a population of five thousand or more. The findings of fact of that court read in part:

'That the United States Department of Commerce, acting through the Federal Bureau of the Census of said department did conduct and complete the taking of a population census in and of the village of Kettering, Ohio, which such census was completed as of the 23rd day of February, 1955.

'That the said population census was taken at the request of the village of Kettering pursuant to the terms of a contract between the village of Kettering and the United States Department of Commerce.

'That the result of such population census, as certified to by the United States Department of Commerce, acting through the Director of the Census Bureau, disclosed that the village of Kettering had on the 23rd day of February, 1955, a population of more than 5,000, to wit, 38,118.

'That the said population of 38,118 does not include any college or university students in attendance at an educational institution within the village of Kettering.

'That the result of the aforesaid population census was officially made known by the United States Secretary of Commerce through the Director of the Census Bureau to the Secretary of State, state of Ohio, the respondent herein, on the 17th day of March, 1955.'

Section 1 of Article XVIII of the Ohio Constitution reads:

'Municipal corporations are hereby classified into cities and villages. All such corporations having a population of five thousand or over shall be cities; all others shall be villages. The method of transition from one class to the other shall be regulated by law.'

Section 703.01, Revised Code, reads 'Municipal corporations, which, at the last federal census, had a population of five thousand or more, are cities. All other municipal corporations are villages. Cities, which, at any federal census, have a population of less than five thousand, shall become villages. Villages, which, at any federal census, have a population of five thousand or more, shall become cities. No municipal corporation shall have its classification as a village changed to that of a city by virtue of there being counted, in determining the population of such municipal corporation, college or university students in attendance at an educational institution within the municipal corporation where the residential addresses of such students when not in attendance at the educational institution, or the residential addresses of the guardians of such students, as determined by the records of the institution kept by its registrar, are at a place other than the municipal corporation wherein such institution is located. After each decennial census the secretary of state shall issue a proclamation certifying the number of permanent residents in such municipal corporation and the number of students attending a college or university therein.'

Section 703.06, Revised Code, reads:

'When the result of any federal census or an enumeration as provided in sections 703.02 to 703.05, inclusive, of the Revised Code, is officially made known to the secretary of state, he forthwith shall issue a proclamation, stating the names of all municipal corporations having a population of five thousand or more, and the names of all municipal corporations having a population of less than five thousand, together with the population of all such municipal corporations. A copy of the proclamation shall forthwith be sent to the mayor of each such municipal corporation, which copy shall forthwith be transmitted to the legislative authority of such municipal corporation read therein, and made a part of the records thereof. Thirty days after the issuance of such proclamation each municipal corporation shall be a city or village as the case may be.'

The Court of Appeals refused to issue a writ of mandamus. The cause is now before this court on appeal from the judgment of the Court of Appeals.

Beigel & Mahrt and Jack E. Staley, Dayton, for appellant.

C. William O'Neill, Atty. Gen., and Joseph S. Gill, Columbus, for appellee.

TAFT, Judge.

The question to be decided is whether an enumeration of the inhabitants of a village at a particular time, made by the Bureau of the Census of the United States Department of Commerce at the request of that village and pursuant to a contract between that village and the Department of Commerce, is included within the meaning of the words, 'any federal census,' as those words are used in Sections 703.01 and 703.06, Revised Code. If it is, then the writ of mandamus should have been allowed; and, if not, it was properly denied.

In stating the question to be decided, we have used the words, 'enumeration of the inhabitants,' because the Attorney General, in arguing that such enumeration was not a 'federal census,' has suggested that it would not even be recognized under the federal laws as a census.

The authority for such an enumeration by the Bureau of Census of the United States Department of Commerce is found in Section 8(b) of Title 13, United States Code, which reads:

'The Secretary may furnish transcripts or copies of tables and other census records and make special statistical compilations and surveys for State or local officials, private concerns, or individuals upon the payment of the actual, or estimated cost of such work.'

In contrast with the words, 'statistical compilations and surveys', the Attorney General refers to the part of Section 141 of Title 13, United States Code, which reads:

'The Secretary shall, in the year 1960 and every ten years thereafter, take a census of population * * * in each State.'

It may be observed that the taking of a census will necessarily involve the making of 'statistical compilations and surveys'; and that the authority expressly given by Section 8(b) of Title 13, United States Code, to make such compilations and surveys, especially since it is given to the officer generally authorized to take censuses and given in connection with other language providing for furnishing copies of 'census records,' quite clearly includes authority to take a census for local officials on the payment of the cost thereof. ^*

Furthermore, it may be observed that provision for or suggestion of any federal census apparently originated in the third paragraph of Section 2 of Article I of the Constitution of the United States, which uses the words, 'emuneration' of 'persons,' to describe what we usually refer to as a census. The word, 'census,' is not used in those constitutional provisions.

Likewise, the words of Ohio statutes relative to classification of cities and villages have frequently expressly regarded an 'enumeration' of the persons living in a particular locality as a 'census' of that locality. See, for example, Sections 703.05, 703.06, 703.11, 703.12, 703.13, 703.14 and 703.15, Revised Code.

In our opinion, therefore, the Court of Appeals in its findings correctly described the 'enumeration' in question in the instant case as a 'census.' See Cahill v. Leopold, 141 Conn. 1, 103 A.2d 818, 823, 832.

Since this 'census' was taken by the federal government pursuant to federal laws authorizing its taking, it was obviously a 'federal census.' In re Cleveland's Claim, 72 Okl. 279, 282, 180 P. 852, 855. See City of Compton v. Adams, supra. There is nothing in the words of these Ohio statutes to indicate that, by the words, 'any federal census,' the General Assembly did not intend to describe a 'census' authorized by federal law unless it was directed by federal law.

It is pointed out that the...