Horstman v. Cincinnati St. Ry. Co.

ipal code of the state, and on October 22, 1902, it enacted such revised code, which contained in 96 O. L. 32, Sec. 31 the following language:

"Nothing herein contained shall be construed to impair the rights of abutting property owners, where unnecessary or additional burdens are placed upon the streets by operation of any grants herein authorized to be made, and nothing in this act, or any part thereof, shall be construed to impair or enlarge the rights of any corporation now using the streets of any municipality in the state under authority of any law now or hereafter in force; but all unexpired grants of rights or franchises heretofore made by any municipality, in accordance with the provisions of any statute or act of the general assembly existing at the time when they were made, and which have been accepted and where money has been expended in good faith on account thereof, are hereby regranted for such unexpired portion of the respective periods of the original grants in accordance with the terms and conditions of the same; any law, or part of law, to the contrary notwithstanding."

It is contended by the defendant that the latter part of the section beginning with the words, "but all unexpired grants of rights or franchises heretofore made by any municipality, etc., etc.," confirms and regrants all street railroad franchises previously made under unconstitutional laws, and thereby validates the grant made under the "Rogers law" to the defendant company.

Assuming for the purpose of discussion, without expressing an opinion, that such is the effect of this part of Sec. 31, we are immediately confronted with the question whether the power to make such a grant is not forbidden to the general assembly by the constitution of the state.

The defendant contends that such legislation is constitutional, and bases its contention upon the proposition that "the general assembly has complete control of the municipal corporations of the state and also of the streets and highways within such municipal limits, so far, at least, as to make valid grants or regrants directly to and in favor of street railway corporations instead of doing so indirectly through the municipal agencies."

If we admit for the purpose of argument that this proposition generally speaking is sound, yet it is beyond dispute that it is subject at least to two most important limitations.

1. As streets, municipalities and street railroad franchises are all subjects of a general nature, such a grant must be by a law which operates uniformly throughout the state; otherwise it would violate Sec. 26, Art. 2 of the constitution, which declares that "all laws of a general 'nature shall have a uniform operation throughout the state," and

2. As Sec. 1, Art. 13 of the constitution, which declares that "the general assembly shall pass no special act conferring corporate power,"

Superior Court of Cincinnati.

applies to both municipalities and private corporations, such as street railroad companies, any grant of street railroad franchises to such companies operating in municipalities must be so generally applicable to municipalities and street railroad companies as not to be a special act conferring corporate power, and therefore forbidden by this constitutional prohibition.

The curative provision of 96 O. L. 32, Sec. 31 violates both of these limitations to which we have just referred: "All unexpired grants of rights or franchises heretofore made by any municipality, etc.," under any unconstitutional law are made valid or regranted. Therefore, whether the law under which the street railway grant was made, violated the provision of Sec. 26, Art. 2 of the constitution that "All laws of a general nature shall have a uniform operation throughout the state," or whether it violated the provision of Sec. 1, Art. 13 that, "The general assembly shall pass no special act conferring corporate powers;" nevertheless, the grant is declared to be valid and binding on the municipality and the people inhabiting the same; and, as the grant under the Rogers law is invalid, because made under a law which violated this latter provision of the constitution, by force of this curative section it becomes valid.

It will be observed that this law has no future operation. It simply regrants all unconstitutional grants heretofore made. If it had been given a prospective as well as a retrospective operation, it would be simply a re-enactment of the Rogers law. As it stands it is a re-enactment of the Rogers law limited in its operation to the past.

The unconstitutionality of such a law is self-evident. The contention that it is constitutional proceeds upon the theory that the general assembly controls the constitution, instead of the constitution controlling the general assembly; that an unconstitutional law can be constitutionally vitalized by repassing it; and that a grant made under an unconstitutional law can be made valid by a declaration by the general assembly that it shall be considered valid.

It might as well be claimed that a false statement can be made true by repeating it, or that a thing which does not exist may be brought into existence by the mere insistence that it shall exist.

The extended arguments in this case assume that the question of the constitutionality of that part of Sec. 31 which we have been considering is a new question in this state. But it is not. It has been passed upon adversely to the contention of the defendants by our circuit court in Knorr v. Miller, 3 Circ. Dec. 297 (5 R. 609); and this decision was affirmed by our Supreme Court in 27 Bull. 64 and 187.

In that case the board of public improvements in Cincinnati awarded a street railroad franchise to Isaac J. Miller, although Simeon M. Johnson was the lowest bidder for the same, on the ground that the consents

Horstman v. Cincinnati St. Ry. Co.

of the property owners along the route were consents filed for the grant of the franchise to Miller, and to no one else.

Thereupon an action of injunction was begun in the common pleas court of Hamilton county by Knorr, a taxpayer, against the city of Cincinnati and Miller, to enjoin the operation of the franchise by Miller, on the ground that consents when filed inure to the lowest bidder and cannot be restricted to any particular bidder.

The common pleas court (Shroder, J.) sustained the contention of plaintiff. Knorr v. Miller, 11 Re. 165 (25 Bull. 128).

The case was then appealed to the circuit court. But subsequently to the decision in the common pleas court, and before the case was heard in the circuit court Miller and his associates went to the general assembly and secured the passage of a curative law validating the grant to him. The law was passed April 10, 1891, and appears in the opinion in the case in the circuit court, Knorr v. Miller, 3 Circ. Dec. 297, 299 (5 R. 609), and reads as follows:

"Section 1. That in all cases where, in cities of the first grade of the first class, the council has heretofore, by ordinance, established any street railroad route and declared the conditions upon which a street railroad should be constructed and operated upon and along such route, and due publication of a notice has been made calling for proposals to construct and operate such street railroad to be awarded to any corporation, individual, or individuals that should agree to carry passengers thereon at the lowest rates of fare, and the proposal of a bidder who obtained and filed the written consents of the owners of the majority of the feet front of property of such street on the line of the route, has been accepted thereon, and an ordinance passed granting to such bidder the franchise to construct and operate such street railroad, and such bidder has accepted the same, and entered into a written contract with such municipal corporation to construct and operate such street railroad, said ordinance and grant, contract and franchise shall be deemed and held in all respects to be valid and binding, notwithstanding the submission. of another bid at such letting, by a bidder proposing to carry passengers on such route at a lower rate of fare, who failed and neglected to obtain and file the written consents of any of the property owners on the line of said route."

The circuit court held the law to be unconstitutional on the ground that it violated Sec. 1, Art. 13 of the constitution, which forbids the passage of any special law conferring corporate power, and this decision was affirmed without report by our Supreme Court. (27 Bull. 64 and 187.)

An examination of the record and briefs in that case discloses that the main point relied upon in the attack upon the constitutionality of the law was that it was a special act conferring corporate power, and the briefs in that case read as if they were written for this case. The

Superior Court of Cincinnati.

argument and even the authorities cited to sustain the law are almost identical with the argument and authorities relied upon in this case.

Only a brief examination of the authorities cited by defendant to sustain the constitutionality of this curative law is necessary to show their inapplicability to the case at bar.

In the case of Kumler v. Silsbee, 38 Ohio St. 445, an ordinance of the city of Cincinnati had been passed purporting to authorize Samuel Silsbee, his associates, etc., to lay pipes in the streets of Cincinnati for the purpose of supplying the public with steam heat and power in accordance with the method known as "The Holly system of steam heating in cities." Before any step had been taken by Silsbee the act of March 25, 1880 (77 O. L. 83), was passed, which reads as follows:

AN ACT.

"To authorize municipal corporations to use or grant the use of the streets, avenues, alleys, and public places for certain purposes. "Section 1. Be it enacted by the general assembly of the state of Ohio, That any municipal corporation may, by ordinance, use or grant the use of its streets, avenues, alleys, lanes and public places, to lay pipes and drains under the surface thereof, to be used for the purpose of supplying its inhabitants with heat and power, upon such terms as such corporation may deem proper.

"Section 2. That in all municipal corporations which may have heretofore, by ordinance, authorized the use, by any person or corporation of the streets, avenues, alleys, lanes and public places of such municipal corporation, for the purpose of laying pipes and drains below the surface. thereof to convey and supply its inhabitants heat and power, such ordinance shall be held as valid and binding as if the power in all such municipal corporations to so grant such use of its streets, avenues, alleys and public places had been expressly enumerated in the general municipal corporation act now in force; provided, that the councils of such corporations are empowered to regulate, by ordinance, at intervals of five years, the price which such person or company may charge for such heat or power.

"Section 3. This act shall take effect and be in force from and after its passage."

It will be observed that this statute differs from the statute in the case at bar in two respects: (1) the legislature had the power in the first instance to have granted the authority which had been exercised by the city of Cincinnati. There would have been no constitutional ob(2) The statute making the grant was not special, but general, as it operated not alone on past transactions, but also upon transactions in the future.

jection to such a grant.

Upon the first point the court said:

"A statute granting authority to lay pipes for the purposes specified

Horstman v. Cincinnati St. Ry. Co.

in the streets of municipal corporations would be clearly authorized by the general grant of legislature power, and where a statute does not infringe upon any constitutional inhibition, the legislature is the sole judge as to the form it may assume."

And upon the second point it said:

"The further claim is made that the statutory provision confers corporate power, and being special, violates the constitution, Sec. 1, Art. 13, but the statute is general and not special. Rev. Stat. 123, note."

In the case of Louisville Trust Co. v. Cincinnati, 10 O. F. D. 112 [76 Fed. Rep. 296; 22 C. C. A. 334; 47 U. S. App. 36], the city of Cincinnati had, in 1871 and 1872, without authority of law, made certain grants of street railroad franchises to the Cincinnati Inclined Plane Railway Company, which was organized under the steam railway law. Subsequently the legislature passed a curative law which validated such grants. The law, however, as in Kumler v. Silsbee, supra, was one which the legislature was not forbidden from passing in the first instance; it was not special; but general, and operated not only on past grants, but also on future grants, the language of the act being:

"Any inclined plane railway or railroad company heretofore or that may hereafter be organized under the act of May 1, 1852, shall have power, etc., etc."

The court held such a law not to be a special act conferring corporate power. The difference between that act and the one at bar is manifest.

The cases of Hinsch v. Cincinnati, 31 Bull. 252, affirmed by the Supreme Court, and Bode v. Cincinnati, 6 Circ. Dec. 56 (9 R. 382), and Cincinnati v. Anderson, 52 Ohio St. 600 [43 N. E. Rep. 1040] involved the constitutionality of the curative act found in 90 O. L. 5 and 6.

In Campbell v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606], the Supreme Court had held that the requirement of Sec. 1694 Rev. Stat., that ordinances of a permanent nature shall be fully and distinctly read on three different days, is mandatory, and that where this statutory rule was dispensed with and a number of ordinances to condemn and improve property were voted upon at the same time without a division of the question, the action was illegal, and the assessments made with respect thereto invalid.

To cure the irregularity in such proceedings the law found in 90 O. L. 586 was passed, and was upheld by the courts.

The opinions of the courts are not reported, but they were undoubtedly based upon one or both of two grounds:

That the legislature could in the first instance .ave dispensed with this formality in the passage of ordinances, and therefore it had the power to subsequently validate any action of the city authorities which had been taken in disregard of this formality.