State ex rel. Knisely v. Jones

• Decision Date: 26 June 1902
• Citation: 64 N.E. 424,66 Ohio St. 453
• Parties: STATE ex rel. KNISELY et al. v. JONES et al.
• Court: Ohio Supreme Court

64 N.E. 424

66 Ohio St. 453

STATE ex rel. KNISELY et al. v. JONES et al.

Supreme Court of Ohio.

June 26, 1902

Application by the state, on the relation of Isaac E. Knisely and others for a writ of mandamus to Samuel M. Jones and others. Demurrer to the petition sustained.

In the petition it is alleged that on the 2d day of May, 1902, the relators were, by the Honorable George K. Nash, governor duly appointed and commissioned as city police commissioners of the city of Toledo, and that upon the day following they qualified and organized as required by law, their appointment and qualifications being pursuant to the provisions of an act passed by the general assembly on the 27th day of April 1902, and to take effect upon its passage. The petition further shows that the defendants were the duly constituted board of police commissioners of the city of Toledo prior to and upon the day of the passage of said act, holding office under sections 1984 and 1985 of the Revised Statutes, which were repealed by the terms of the third section of the act of April 27, 1902. The defendants are in the possession of the office, and of all the books, papers, and other property, of the police department of Toledo. After their qualification as aforesaid, the relators demanded of the defendants the delivery of said books, papers, and property, which the defendants refused, then claiming to be entitled to the custody thereof and to the exercise of all the functions of said office, notwithstanding the passage of said act. The prayer of the petition is that a writ of mandamus may issue commanding the defendants to deliver all of said property to the relators. The cause is submitted on demurrer to the petition. Act April 27th is entitled, ‘ An act to amend, supplement, and repeal certain sections of subdivision three, of chapter five, division five, title twelve, of the Revised Statutes of Ohio.’ In terms it amends section 1984 so as to provide as follows: ‘ All police powers and duties connected with and incident to the appointment regulation and government of a police force in cities of the third grade of the first class, shall be vested in and exercised by a board of police commissioners, to be appointed by the governor. The governor shall appoint, as such commissioners, four citizens, electors of such cities, respectively, well known for their intelligence and integrity, not more than two of whom shall be of the same political party; two of whom of different political party faith and allegiance, shall be designated in their appointment to serve for two years, and the other two, also of different political party faith, shall be designated to serve for four years. And, thereafter, at the expiration of such term, and at each period of two years, the governor shall appoint two members of said board to serve for a period of four years. For official misconduct, the governor may remove any of said commissioners; and all vacancies in said board by death, resignation or removal, shall be filled by the governor for the unexpired term; and all vacancies from whatever cause, shall be so filled that not more than two of the members of said board shall be of the same political party, or so reputed. The commissioners, before entering upon their duties, shall take and subscribe on oath, which shall be filed and kept in the office of the city clerk, to support the constitution of the United States and of the state of Ohio; to obey the laws, and in all their acts and official actions and judgments, to aim only to secure and maintain an honest and efficient system of police, free from partisan dictation and control.’ It also provides in detail for the qualification and appointment of officers of the police force, fixing their salaries, as well as the qualification and compensation of patrolmen. For the government of said police it embodies, by reference, numerous other sections of the statutes. By the second section, it provides for the delivery, by the commissioners then holding office, of all books, papers, property and appurtenances of the police department in their hands and under their control, to the police commissioners so appointed by the governor, this delivery to be made within five days after the appointment. The third section, in terms, repeals the former law upon the subject.

Syllabus by the Court

1. Persons claiming to be the appointed successors of defendants in office, and to be entitled to the possession of property pertaining to such office, are without authority to make the relation in an action in mandamus to compel its delivery to them unless the act under which they were appointed is valid.

2. All legislative acts relating to the same subject-matter should be construed together; and since all the acts relating to the classification of municipalities and their reclassification, and the division of classes into grades, evince the legislative intention that municipalities having substantially the same conditions and characteristics shall not enter and remain in the same class, such acts are ineffectual to designate classified recipients of corporate power, and an act to confer such power upon a single city, by such classification, is repugnant to section 1 of article 13 of the constitution, which ordains that ‘ the general assembly shall pass no special act conferring corporate powers.’

3. A legislative enactment to provide for the organization and support of a police force for a city, the expenses thereof to be paid by a tax levied upon all taxable property within such city, confers corporate powers.

4. The act of April 27, 1902, providing for the reorganization of the board of police commissioners of the city of Toledo and the appointment of such commissioners by the governor, being a special act conferring corporate powers, is void.

5. Whether the provisions of the sixth section of article 13, ordaining that the general assembly shall provide for the organization of cities and incorporated villages by general laws, is an exclusive classification of municipalities into cities and villages, we do not determine.

6. Nor do we determine whether the act referred to is void because violative of the principles of local government, or because conferring upon the governor powers which he is not competent to receive and exercise.

J. M. Sheets, Atty. Gen., and J. H. Doyle, for relators.

Brown, Geddes & Bodman, Brand Whitlock, and Clarence Brown, for defendants.

SHAUCK, J. (after stating the facts).

In the opinion of counsel for the relators the constitutional validity of the act of April 27, 1902, is not involved in the present inquiry. Their view of the subject is that this act repeals the statutory authority under which the defendants held the office of police commissioners, and that the relators are therefore the only persons who, under an existing statute, claim to hold the office, and to be entitled to the possession and custody of the property which appertains to it. For two conclusive and independent reasons, we regard this view as defective, and the conclusion to which it leads as unsound.

This act, and the sections for whose repeal it provides, relate to the police organization of the city of Toledo. Such organization is not otherwise provided for. Owing to the relation and the subject-matter of the statutes, we cannot suppose that the general assembly would have enacted the section repealing the law under which the defendants claim and hold office but for the belief that the act under which the relators were to succeed them would be operative. That supposition would impute to the general assembly an intention to leave the city without such organization. That is forbidden by the nature of the subject and by the universally recognized necessity for such an organization in all the cities of the state. Applying to the case a doctrine with which the lawyers of the state are quite familiar, the repealing section of the present act is inoperative unless its provisions for reorganization of the board are valid. The system provided by the former legislation being still in full operation, it should continue unless, by a valid act, a system to succeed it has been provided. It also seems quite clear that the title of the relators, and their right to the possession of the property appertaining to the office of police commissioners, depend upon the constitutional validity of the act of April 27, 1902. If that act is invalid, the relators are but private citizens, wholly without authority to demand or receive such property, and without authority to make the present relation. Even if the defendants have ceased to hold office as police commissioners, there is no duty enjoined upon them by law to deliver the property in question to persons who are without official rights and duties with respect to it.

The validity of the act is denied because, in the view of cou...