Sanzere v. City of Cincinnati
Sanzere v. City of Cincinnati
Opinion of the Court
The question presented in this case is stated by the plaintiff as follows: Is the last sentence of Section 4678-2, General Code, which reads, ‘ ‘ This act shall not apply to any city or village having a charter form of government,” unconstitutional because it does not comply with Section 26, Article II of the Constitution reading, “All laws, of a general nature, shall have a uniform operation throughout the state * * *”?
The record shows that in both the Court of Common Pleas and the Court of Appeals the invalidity of the last sentence of Section 4678-2, General Code, was either conceded or not challenged.
Sections 4678-1 and 4678-2, General Code, are as follows:
Section 4678-1. “Before letting or making any contract for the construction, reconstruction, widening, resurfacing or repair of a street or other public way;
Section 4678-2. “Where the proper officers of any municipal corporation construct, reconstruct, widen, resurface or repair a street or other public way by force account or direct labor, and the estimated cost of the work as defined in the preceding section exceeds
In considering the effect of the last sentence of Section 4678-2, General Code, reference is made to the following provisions in the Ohio Constitution:
Section 1 of Article XVIII, which is as follows:
“Municipal corporations are hereby classified into cities and villages. All such corporations having a population of five thousand or over shall be cities; all
Section 7 of Article XVIII, which is as follows:
“Any municipality may frame and adopt or amend a charter for its government and may, subject-to the provisions of section 3 of this article, exercise thereunder all powers of local self-government. ’ ’
Section 3 of Article XVIII, which is as follows:
“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. ’ ’
Section 13 of Article XVIII, which provides as follows:
“Laws may be passed to limit the power of municipalities to levy taxes and' incur debts for local purposes, and may require reports from municipalities as to their financial condition and transactions, in such form as may be provided by law, and may provide for the examination of the vouchers, books and accounts of all municipal authorities, or of public undertakings conducted by such authorities.”
Does the proviso in Section 4678-2, General Code, that it shall not apply to charter cities, render that statute unconstitutional?
The contention is made that it violates Section 26 of Article II of the Constitution requiring that “all laws, of a general nature, shall have a uniform operation throughout the state * * *.” The basis of this contention is primarily the decision in the case of City of Elyria v. Vandemark, 100 Ohio St., 365, 126 N. E., 314, paragraphs two and three of the syllabus of which are as follows:
“2. The Constitution of the state having classified municipalities on a basis of population, the Legislature is without authority to make further classifica
“3. The provisions of Section 4250, General Code, as amended 106 Ohio Laws, 483, purporting to authorize the council in cities having a population of less than twenty thousand to merge the office of director of public safety with that of the director of public service, are in conflict with the provisions of Section 1, Article XVIII of the Constitution of Ohio.”
The opinion therein relates the history of the legislative classification of cities which took place under the provisions of the Constitution of 1851 that “the General Assembly shall provide for the organization of cities, and incorporated villages by general laws.” It notes that further classification was made by the General Assembly with the number of classes and grades of cities being constantly increased and the limitations of each grade or class of cities constantly decreased until the legislation for the government of municipalities became special in its nature although still under the guise and in the form of general laws. Discussing present Section 1 of Article XVIII of the Ohio Constitution, the opinion states as follows:
“The Constitution adopted in 1912 did not leave to the Legislature the matter of classification of municipalities. The constitutional convention retained the provision that ‘general laws shall be passed to provide for the government of cities and villages,’ substantially as in the former Constitution, but in furtherance of its manifest and clearly expressed purpose to take from the Legislature the power theretofore exercised by it relative to the government of the municipalities of the state and to confer such powers of local self-government directly upon the municipalities themselves the Constitution provides in Section 1, Article XVIII, that ‘municipal corporations are hereby classified into cities and villages. All such cor
“It having been declared by the Constitution that the municipalities of the state should be classified upon the basis of population into cities and villages, it must be presumed that it was intended that there should be no further classification for the purpose of legislation affecting municipal government.”
The holding of this court in the Elyria case, supra, has not been changed or modified. However the question presented in that case differs materially from the issue here. There the General Assembly was attempting to create an arbitrary classification within the constitutional definition of “city” and was thus again entering upon a program of special legislation for cities, in violation of the rule announced by this court in the case of State, ex rel. Knisely, v. Jones, 66 Ohio St., 453, 64 N. E., 424. It is definitely settled that the General Assembly has no power to classify municipalities on the basis of population.
The General Assembly in the enactment of laws for the governing of the purely local affairs of municipalities has followed and applied this distinction between charter and noncharter cities. As examples see the following:
Section 3515-2, General Code (plans of government for municipalities not to be submitted while the question of the adoption of a charter is pending); Section 4000-14, General Code (relating to indeterminate permits by municipalities'to public utilities and which provides that “nothing in this act shall be construed to deprive any municipality of its rights to prescribe, by charter, any other methods, terms or conditions * * * upon which indeterminate permits may be granted in such municipality”); Section 5625-14, General Code (ten-mill limitation “shall not apply to the tax levies of any municipality which, by its charter or amendment thereto, provides or has provided for a limitation of the total tax rate”); and Section 4676-1, General Code (charter cities may pass legislation making improvements and levying assessments in a manner differing from the general law).
These statutes and others, including Sections 4678-1 and 4678-2, General Code, were so enacted by reason of the authority conferred by the Constitution upon charter cities to adopt different procedures in purely local matters, subject to the special limitations authorized by Section 13, Article XVIII of the Constitution,
It has also been repeatedly field by this court that where the General Assembly has enacted a law relating to purely local matters and the municipality under its charter powers has adopted a different provision relating thereto, the charter will control and by virtue of the charter such city is excepted from the general statute. Flotron v. Barringer, 94 Ohio St., 185, 113 N. E., 830; State, ex rel. Frankenstein, v. Hillenbrand, 100 Ohio St., 339, 126 N. E., 309; Switzer v. State, ex rel. Silvey, 103 Ohio St., 306, 133 N. E., 552; State, ex rel. Hackley, v. Edmonds, Clerk, 150 Ohio St., 203, 80 N. E. (2d), 769, and cases cited.
The purpose of the adoption of a home-rule charter is to provide for local self-government and secure exemption from general laws. This has been repeatedly recognized by this court and there is no basis for the suggestions now made that differentiation between charter and noncharter cities is in violation of the Constitution which expressly creates that distinction.
We, therefore, hold that the last sentence of Section 4678-2, General Code, does not make such statutes unconstitutional, but. that they are valid constitutional enactments. The Court of Common Pleas erred in granting an injunction as did the Court of Appeals in affirming the judgment.
Tfie judgment of tfie Court of Appeals is accordingly reversed and tfie cause remanded to tfie Court of Common Pleas for further proceedings in accord with tfiis opinion.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.