Village of Ravenna v. Pennsylvania Co.
| Citation | 45 Ohio St. 118,12 N.E. 445 |
| Parties | VILLAGE OF RAVENNA v. PENNSYLVANIA CO. |
| Decision Date | 26 April 1887 |
| Court | United States State Supreme Court of Ohio |
Error to circuit court, Portage county.
An ordinance was passed by the council of the village of Ravenna, providing that on any street of the village crossed by the track of any railroad company, when the council shall deem it necessary to require the company to provide protection against injuries to persons and property, by the keeping of a watchman, whose duty it shall be to stop all teams and foot passengers by the continuous exhibition of a flag by day and a light by night, whenever a train in motion shall have approached within 500 feet of such crossing, the council may, by resolution, so declare, and may direct the company, within a time specified in the resolution, to erect and maintain a sufficient safeguard at such crossing specifying the kind; and that any company neglecting to comply with the resolution shall suffer a penalty of $50 etc. Subsequently, the council passed a resolution requiring the defendant company to place a watchman at the point where its tracks cross Main street in the village. The company refused to comply. Action was commenced by the village before the mayor, to recover a penalty of $50. This was appealed to the court of common pleas, where a demurrer to the petition was sustained. On error, this holding was affirmed by the circuit court.
P. B. Conant , for plaintiff in error.
Ranney & Ranney , for defendant in error.
The question in the case is as to the power of a municipal corporation, by ordinance, to compel a railroad company to station and keep a watchman at points where the tracks cross a street, and impose penalties for neglect to do so.
That the power to compel railroad companies to maintain watchmen at dangerous crossings is in the nature of police power, and that such power exists in the general assembly, may be conceded. But it does not follow that because the legislature has such power it may be exercised by municipal corporations. Such corporations, being created for convenience and economy in government, and to aid the state in legislation and administration of local affairs, are always subject, in their public capacity, to the control of the state. As a result of this limitation, this corporation cannot possess the power referred to, unless the same has been conferred by statute. Indeed, it is conceded by the learned counsel for plaintiff that the power to pass the ordinance does not exist unless it has been expressly granted by the legislature, or is clearly implied, and there is no doubt that this is the law. Power to enact such an ordinance would not be inherent in the council. Except as to incidental powers, such as are essential to the very life of the corporation, the presumption is that the state has granted, in clear and unmistakable terms, all it has designed to grant at all. Doubtful claims to power are resolved against the corporation. Cooley, Const. Lim. 233 234; Minturn v. Larue , 23 How. 435; Bloom v. Xenia , 32 Ohio St. 465.
It is contended that subdivisions 1 and 3 of section 1692 of the Revised Statutes grant the power in question. The section referred to grants many general powers to cities and villages. We quote: ‘ (1) To prevent riots, gambling, noise, and disturbance, indecent or disorderly conduct or assemblages, and preserve the peace and good order, and protect the property of the municipal corporation and its inhabitants.’ ‘ (3) To prevent injury or annoyance from anything dangerous offensive, or unwholesome, and to cause any nuisance to be abated.’ It seems to us that it is immaterial whether the last clause of subdivision 1 be treated as confining protection to property , or, as urged by plaintiff's counsel, it should be construed to read, ‘ protect the property of municipal corporations, and the property and lives of its inhabitants; ’ for it is difficult to see that the plaintiff's claim would be advanced by the latter construction. The property of the inhabitant is just as much subject to risk when he attempts to drive across a railroad track as is his person. However, the point is not whether the village has the right itself to take steps to protect its inhabitants, or their property, but whether it has the power to compel the railroad company to do it. The propositions are essentially different. We may concede the former without being at all aided in the solution of the latter. The same comment applies with equal pertinency to the language of the other subdivision, wherein power is given to prevent injury from anything dangerous. It is not enough to show that municipal corporations have been given the power to protect property and life. To maintain this ordinance it must be shown that they have been given the power to employ the agency here invoked to accomplish the object. If another agency-for instance, the employment of such watchman by the village itself-would as well reach the same end, it cannot reasonably be said that the power to put in motion the agency here ordered is clearly implied from the power to accomplish the purpose itself. The stationing of watchmen or policemen at street crossings, to protect those driving across, is a familiar sight in cities. No lack of authority to do the same is believed to exist in villages. Municipal corporations are capable of exercising police powers; but when the question is whether such an organization has authority to enact a...
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