Opinion
Decided March 28, 1927.
Municipal corporations — Free water supply for schools — Section 3963, General Code — Statute not nullified by ordinance passed in exercise of local self-government — Section 3, Article XVIII, Constitution.
The provision of Section 3963, General Code, that no charge shall be made by a city for supplying water for the use of the public school buildings therein, is a valid exercise of power by the Legislature, and cannot be nullified by such city by an ordinance passed in the exercise of the power of local self-government granted by Section 3, Article XVIII, of the Constitution.
ERROR: Court of Appeals for Cuyahoga county.
Mr. E.A. Binyon, director of law, for plaintiff in error.
Mr. Ben B. Wickham, for defendant in error.
Before the constitutional amendments of 1912, the Legislature of the state of Ohio, having granted to municipalities the right to own and operate waterworks systems, enacted, as a part of the Municipal Code, Section 3963, providing that in cities and villages having municipally owned and operated waterworks systems no charge should be made for water furnished the board of education for school buildings.
In 1912 the Constitution was amended, and by such amendments the authority was taken away from the Legislature to confer upon municipalities the right to own and operate waterworks systems, and that power was given directly to municipalities by the Constitution (Section 4, Article XVIII), and at the same time power was conferred upon municipalities "to exercise all powers of local self-government." Article XVIII, Section 3.
Thereafter the city of East Cleveland, a charter city owning and operating a waterworks system, and buying its water from the city of Cleveland and distributing it to the inhabitants of the city of East Cleveland, provided by ordinance that the board of education of that city should pay for water furnished to school buildings, the same as other water consumers. The board of education refused to pay, and the city of East Cleveland brought this action to recover for the water furnished the school buildings for a certain period.
If said Section 3963 is in force and controlling, then the petition of the city of East Cleveland in this case does not state facts sufficient to constitute a cause of action; but, if said statute is not in force, and the ordinance of said city of East Cleveland is valid and controlling, then said petition does state a good cause of action.
In the trial court, a demurrer to said petition was filed by the board of education, and that court, being of the opinion that said statute was in force and controlling, sustained such demurrer, and judgment was entered in favor of the board of education. Error is prosecuted to this court, and we have for determination the question that was passed upon by the trial court.
Not considering the government of the United States, our state government is the one and only sovereign government in Ohio. The power of such government and the limitations thereof are prescribed in the Constitution. Counties, townships, municipalities, courts, and the Legislature are agencies of the state government, to which agencies certain powers of the government are committed for the purpose of performing certain duties imposed on them by the Constitution and laws of the state.
The legislative power of the state as a whole is, by the Constitution, vested in the Legislature (Article II, Section 1), and certain limitations in the exercise thereof are also set forth therein.
The Constitution imposes the duty upon the Legislature and confers upon it power "to pass suitable laws * * * to encourage schools, and the means of instruction" (Article I, Section 7), and to make provision "by taxation, or otherwise," to "secure a thorough and efficient system of common schools throughout the state" (Article VI, Section 2).
The Constitution also gives to municipalities the power to construct and operate waterworks systems (Article XVIII, Section 4), and the power of local self-government (Article XVIII, Section 3).
The Legislature, in exercising the power and performing the duty imposed upon it by the Constitution in reference to public schools, acts for the whole state in reference to a matter affecting the whole state, and which by the Constitution is made a subject of state-wide government.
The municipality in this case, in establishing and operating a waterworks system, acted in its proprietary function and in the exercise of its local self-governing powers for a very small part of the state. The Legislature determined that the organization created by it to manage the public schools should not be charged for water furnished school buildings, and the municipality in question determined that such organization should pay for water furnished the school buildings.
There is therefore a direct conflict between two governmental agencies — the one local, and having to do only with local matters; and the other general, acting for the whole state, including the territory of the local agency. Under such circumstances, the power of a local agency of the government is subordinate to the power of a state-wide agency of the general government called upon to perform a state-wide mandate imposed upon it by the Constitution.
The power of local self-government does not authorize municipalities to enact and enforce legislation which will defeat the sovereign state in the exercise of its sovereignty throughout the state in the performance of a state-wide duty, especially enjoined by the Constitution.
In Ohio, municipalities, whether operating under a charter or not, are not sovereign in any true sense. They are a part of the state; they derive their powers from the Constitution and laws of the state; and they are bound to discharge, pursuant to the provisions of the Constitution, such duties to the state as are imposed upon them by the Constitution, and the amendment of 1912 does not operate to relieve them of such duties.
Before such amendment, the Constitution gave to the Legislature the power to require municipalities to aid in the promotion of public schools by the furnishing of water to school buildings. The imposing of that duty was not authorized merely as a condition attached by the Legislature to a grant of power to municipalities, but the power to impose that duty was given the Legislature by the provisions of the Constitution relating to public schools. The amendment took away the power of the Legislature to impose that duty as a condition to a grant, but it did not take away the power of the Legislature to impose that duty by virtue of the provisions of the Constitution relating to public schools.
The indefinite and general grant of the power of local self-government did not repeal or render inoperative other provisions of the Constitution which remained as a part thereof; considering the subject-matter and its object, such grant is too vague and uncertain to indicate an intentional inconsistency or conflict with the provisions of the Constitution as to public schools which remained and are in full force and effect, and an act of the Legislature in pursuance of the power thereby granted, and not violative of any of the other provisions of the Constitution, is not rendered invalid because it affects municipalities in their exercise of their power of local self-government.
We have considered all of the opinions of the judges of the Supreme Court in the numerous cases on this subject, but do not deem it necessary to review or attempt to reconcile them.
Judgment affirmed.
FUNK and PARDEE, JJ., concur.
Judges of the Ninth appellate district, sitting in place of SULLIVAN, VICKERY and LEVINE, JJ., of the Eighth appellate district.