Hume v. Traction Co.

Now, as heretofore stated, the state, through the municipality as its agent, has control over the streets of the municipal corporation; and, as the history of legislation respecting street railways shows, that at one time the construction of railroads in cities was authorized without such consent being required, the court has come to the conclusion that the right of the property holder under Secs. 2502 and 3439, Rev. Stat., was a right accorded him by the legislature as a matter of favor, or, as expressed by counsel for defendant herein, a matter of legislative grace. In other words, it was deemed by the general assembly to be good policy to require such consents.

In Roberts v. Easton, 19 Ohio St. 78, Judge Day, in delivering the opinion of the court, says, p. 86:

"The statute expressly prohibits the city authorities from permitting a street railroad to be constructed without such consent; it was, therefore, a condition precedent to the power of the city to grant the requisite permission to lay the track in controversy. The evident object of the act is to protect the owners of property, on the streets of cities therein referred to, from the exercise of an arbitrary power, on the part of the city authorities, in permitting the streets to be used for street railroads."

Under Secs. 2502 and 3439, Rev. Stat., as they stood before the act of May 10, 1902, 95 O. L. 475, was passed, the written consents of the abutting property owners were absolutely necessary to give the city authorities jurisdiction. That is to say, they were required before they passed an ordinance to have filed with them the written consents of a majority of property holders upon each street or part thereof on the line of the proposed street railroad represented by the feet front of the property abutting on the several streets along which such road was proposed to be constructed. In other words, the city authorities had to consult the property holders.

In the case of Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 535, 542), Judge Haynes, in speaking upon this subject, says:

"No grant is made of any interest in the land itself-I believe we all agree about that; it is only in a matter of so much importance as a street railroad along a public street, one that affects the interest of the property owners, or affects their taste at any rate, and the law provides that before the council shall be permitted to grant that right of the public in the street to a railroad company, the landholders shall be consulted, and they shall give their consent. But the thing that is sought to be obtained all the time is the consent of the owner and to know that he is willing that the railroad company shall pass with their road."

In the case of Glidden v. Cincinnati, 4 Dec. 423 (30 Bull. 213), the superior court of Hamilton county, said, p. 4:

"Now it cannot have been the intention of the statute that when it conceded to abutting owners a voice in the question as to whether a

Butler Common Pleas.

street railway shall be constructed by requiring that a certain proportion of the property owners shall consent thereto, that it intended, except as to the right to complain upon the question upon consents, to give such owners any greater rights than other taxpayers have to complain of the invalidity to the grant. The right to complain as to the want of sufficiency of consents gives them the right to protect themselves as to the only rights which they enjoy different from other taxpayers. In other respects, where of course no special injury is complained of, they stand in the same class with other taxpayers in the community having the same rights and subject to the same restrictions."

To again quote from the brief of counsel for defendant in error in the Parrish case, supra:

"It appears that the courts consider that the requiring of written consents only gives to the abutting property owners the right to be consulted, to have a voice in determining the question whether a street railroad shall be laid on the streets in front of their property.

They are to prevent the exercise of this arbitrary power on the part of the city authorities by being consulted as to their likes or dislikes, as to their tastes or distastes, whether or not they are willing to submit to, and suffer the consequential damages which every street railway to a certain extent imposes upon the abutting property owners and which they must submit to and suffer in common with others without compensation." Brief, p. 23.

The court is of opinion that it is simply a matter of policy as to whether or not these consents should be required, and if this be the correct doctrine, who shall determine the policy, the legislature or the courts? Manifestly the supreme law making power-the legislature.

Public policy is a matter of public concern, and the general assembly has the power to change laws founded upon principles of public policy. Trustees v. McCaughy, 2 Ohio St. 152, 155.

"If a statute is constitutional, it is valid, and cannot be set aside by a court, as being against public policy or natural right. There can be no public policy or right in conflict with a constitutional statute."

"When the legislature has spoken, within the powers conferred by the constitution, its duly enacted statutes form the public policy, and prescribe the rights of the people, and such statutes must be enforced, and not nullified, by the judicial and executive departments of the state." Probasco v. Raine, 50 Ohio St. 378, 391 [34 N. E. Rep. 248].

But it is claimed that this statute is unconstitutional, because it "imposes upon the property owner a new duty, and attaches a new disability in respect to a past transaction." It is argued that "the act takes away from the owner the right he had of considering the terms and conditions of the proposed grant, because an ordinance could be introduced and a suspension of the rules had and the ordinance read the second time, all within a few minutes, and then the privilege of withdraw

Hume v. Traction Co.

ing or objecting in any way to the ordinance is taken away, all for the purpose of validating an utterly void grant to a private corporation."

This argument would be of considerable force if the property owner had any vested right under the former law, but, in the opinion of the court, he had not such a right, but, as before stated, the privileges he has under Secs. 2502 and 3439, Rev. Stat., were conferred upon him by the legislature as a faver.

The doctrine that the constitutionality of a statute is presumed, and that it cannot be set aside unless it is clearly and manifestly against some provision of the constitution, is too well settled and established in Ohio to require any citation of authorities.

act.

There is no doubt of the power of the legislature to pass a curative

"In the exercise of its plenary powers, the legislature, in cases of this nature, could cure and render valid, by remedial retrospective statutes, that which it could have authorized in the first instance by proper enactments." Burgett v. Norris, 25 Ohio St. 308, 317.

"The important question on such (curative) statutes, is, would the acts done be effectual for the purpose intended, if a law, made prior to those acts, had directed them as they were done; whether the statute alone made them essential for that purpose. * ** Rights resting upon such curable defects alone cannot be deemed meritorious, and are not entitled to the protection accorded to vested rights." Sutherland on Statutory Construction, Sec. 484.

But it is claimed that this defect was a jurisdictional defect, and that no curative statute can give it effect, because jurisdiction was lacking at the time of the passage of the ordinance.

The court finds this point not well taken.

The same claim was made in case of Miller v. Graham, 17 Ohio St. 1, but was not sustained by the Supreme Court of our state. See p. 10 of opinion in that case.

It is further claimed that this law is an expository statute, and being an expository statute, is in conflict with Sec. 32, Art. 2 of the constitution.

The definition of an expository statute is given by counsel for plaintiff in these words:

"Acts passed for the purpose of affecting the construction to be placed upon prior acts." Citing 2 Bouvier Law Dictionary 1032.

It is quite true that the right of the property owner to withdraw his consent previously given was secured to him by the adjudications of the courts of this state, and was not expressed by any statute. But this act of May 10, 1902, 95 O. L. 475, does not say that Secs. 2509 and 3439, Rev. Stat., shall be construed in a certain manner, but it says distinctly that the grant by the city authorities shall not be held invalid by reason of the fact that a property holder has heretofore withdrawn his con6 13 Dec.

Butler Common Pleas.

sent. In other words, it makes a new rule for a past transaction, but it does not declare that an old law shall be construed in a certain manner; and the court has before stated that the legislature had a right to pass such an act as this.

In Pennsylvania v. Bridge Co., 54 U. S. (13 How.) 518, 519; Curtis 621, the Supreme Court of the United States held a bridge was a nuisance, and ordered its abatement.

After the decree was entered congress enacted a law declaring that particular bridge to be a lawful structure and post road.

The case again came on for hearing, and is reported in Pennsylvania v. Bridge Co. 59 U. S. (18 How.) 421 et seq.

It was urged that this law was unconstitutional because it was an attempt to exercise judicial powers. Some of the justices of that court took this view of the question. I quote from the dissenting opinion of Mr. Justice McLean, pp. 440-441:

"The congress and the court constitute co-ordinate branches of the government; their duties are distinct and of a different character. The judicial power cannot legislate, nor can the legislative power act judicially. ** * When either trenches upon the appropriate powers of the other, the acts are inoperative and void.

"The court held that the bridge obstructed the navigation of the Ohio river, and that, consequently, it was a nuisance. The act declared the bridge to be a legal structure, and, consequently, that it was not a nuisance. Now is this a legislative or a judicial act? Whether it be a nuisance or not depends upon the fact of obstruction; and this would seem to be strictly a judicial question, to be decided on evidence produced by the parties in a case."

Two of his colleagues concurred with Mr. Justice McLean in those views, but the majority of the court were of a different opinion, and through Mr. Justice Nelson held:

That in declaring by statute that the bridge as it stood when the decree was rendered in 1852, was a lawful structure, anything in the laws of the United States to the contrary notwithstanding, congress acted upon a subject within its power and control. It did not affect the fact that at the time the decree was rendered, this bridge was a nuisance, and by the law then in force ought to be abated. But that which, by the law as it stood, was liable to be removed as a nuisance, is now by law no longer a nuisance. The foundation on which that part of the decree is based, is gone; and as this is effected by a lawful exercise of the power of congress, the decree can no further be executed. Pennsylvania v. Bridge Co., supra.

This decision was approved in the case entitled "The Clinton Bridge," 77 U. S. (10 Wall.) 454, in which it was held that where congress had passed an act recognizing a certain bridge as a post-route," a suit in chancery begun previously to the passage of the act, praying

Hume v. Traction Co.

injunction against building of the bridge as a nuisance, is abated by such an act, though pleas and replication had been filed, proofs taken and the case ready for hearing; and further held that the act was constitutional. In this case the court distinguishes between an act at law for damages and an action in equity to enjoin the building of the bridge, or if built, to abate it as a nuisance.

This case was followed in the case of Gibson v. United States, 166 U. S. 269 (17 S. Ct. Rep. 578).

The court, therefore, finds that the passage of this act was not the exercise of judicial power by the legislature.

As to the unconstitutionality upon the ground that it impairs the vested rights of the plaintiff, the court thinks that these rights must be the rights of an individual in order to be entitled to protection.

The provisions of Sec. 28, Art. 2, have been construed many times by our Supreme Court.

says:

In the case of Kumler v. Silsbee, 38 Ohio St. 445, 447, Judge Okey

"The claim is made, however, that the statutory provision in question is retroactive, and hence within the constitutional prohibition on that subject. Art. 2, Sec. 28. But the constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state or any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and thus protect vested rights from invasion."

From the case of State v. Peters, 43 Ohio St. 629, 652 [4 N. E. Rep. 81] the following quotation is taken :

"It may be claimed that this act, so far as it affects past sentences, is retroactive, and, therefore, unconstitutional. This cannot be, as by this provision the legislature is only prevented from interfering with the vested rights of individuals.

"It does not hinder the state from divesting itself of any right of claim of its own."

The case of Kumler v. Silsbee, supra, is cited by counsel for defendant as decisive of this case.

The statement of facts in that case show that in January, 1880, an ordinance was adopted by the board of councilmen and aldermen of the city of Cincinnati, and approved by the mayor of the said city, which purported to authorize Samuel Silsbee, his associates, etc., to lay pipes in the streets of Cincinnati, and provided in detail as to the manner and conditions of such use. At the time of the passage of this ordinance there was no authority on the part of the city to pass the same. But on March 25, 1880, 77 O. L. 83, the legislature of Ohio passed an act providing as follows: