State ex rel. Attorney-General v. Covington

McIlvaine, J. The statute under which the defendants claim to hold and exercise the offices and privileges named in the information provides “ that in all cities of the first class, having at the last federal census a population of two hundred thousand and over, the police powers and duties shall be vested in and exercised by a board of five members, to be appointed by the governor for a term of five years,” etc. The terms employed in this statute to describe the class of cities' provided for were intended, probably, to make the statute conform to the requirement of section 26, article 2, of the constitution, which provides : “ All laws of a general nature shall have a uniform operation throughout the -state;” and perhaps also to save it from question under — 111 — section 1, article 13, which provides : “ The general assembly shall pass no special act conferring corporate powers.” If such was the purpose, it is well to say here that such ends can not be accomplished by such means. This enactment is essentially local and special in its nature. We do not deny that the legislature may classify the subjects of legislation — to wit, cities and villages — and that a statute in relation to a class would be treated as a general law, within the meaning of these provisions of the constitution ; but there is no classification accomplished by this statute. Cincinnati was, is, and ever will be, the only city in this state that had a population of two hundred thousand and over at the federal census of 1870. Cincinnati, therefore, is the only city to which this statute can ever apply, and it •¡might as well have been named in the act. But regarding the act as local and special in its nature, how is it affected by these constitutional provisions ? This squestion is not raised by counsel, but we think it stands in -the way. Section 26 of article 2 does not forbid local legislation. Its requirement is, that laws of a general nature shall have .a uniform operation throughout the state. It does not require that all enactments of the legislature shall be of a general nature. On this point I will only add, that the power of the general assembly to pass local and special laws is embraced in the general grant of legislative power; .•subject, of course, to such inhibitions and limitations as are found elsewhere in the constitution. But section 26, •article 2, was not intended as a limitation on the power. .It was upon this view of the constitution that a statute .similar to this was held to be constitutional in Welker v. Potter, 18 Ohio St. 85, notwithstanding the language, at the •close of the opinion, would seem to indicate otherwise. As to the first section of the thirteenth article, it ls enone\h here to say that the board, .which the defendants -constitute, is not a corporation, nor are its powers, under tthe statute, within the meaning of this section. See Walker v. Cincinnati, 21 Ohio St. 14. — 112 — The principal objections urged by counsel for relator against the validity of this statute are based on the first clause of section 2, article 1, of the constitution, which declares : “All political power is inherent in the people,” and the 20th section of the article, which is as follows : “ This enumeraiion of rights shall not be construed to impair or deny others retained by the people; and all powers not herein delegated remain with the people.” The first of these declarations enunciates the foundation principle of our government, to wit, that the people is the source of all political power; but it was not intended as a denial of the-power or right of delegation and representation. If this were not otherwise palpable, it would be made so by the-second declaration above named, to wit: “ And all powers not herein delegated remain with the people.” This last clause means exactly what its words import; but even from them a plain implication arises that all the-powers in and by the constitution delegated do not remain with the people, but are vested in the agents and officers of the government, to be exercised by them alone. Among the powers delegated by the constitution is the-following, article 2, section 1: “ The legislative power of the state shall be vested in the general assembly.” Now, whatever limitations upon the powTer thus delegated to the general assembly may be found in other-provisions of the constitution, it is quite clear that section 20 of the 1st article does not impose any limitation upon it whatever. That section only declares that powers not delegated remain with the people. It does not purport to limit or modify delegated powers. It can not be doubted that the terms of the constitution, whereby the legislative power of the state is vested in the general assembly, are comprehensive enough to authorize the enactment in question. Rules and regulations for local municipal government of cities and villages are subjects of and are as clearly within the scope of legislation as are those which concern the state at large. Cities and villages are agencies of the state government. Their organization — 113 — and government are under the control of the state, and every law which affects them must emanate from the general assembly, where the legislative power of the state is vested. Now, it is true that the terms in which this grant of power is made to the general assembly are restrained and limited by many inhibitory provisions contained in the instrument ; but we find no express inhibition against such legislation as is contained in this statute. The question, therefore, is, is there an implied inhibition against it ? It is claimed by counsel for the relator, as we understand their arguments, that such inhibition is implied from the provisions quoted above from the bill of rights, especially when they are considered in connection with the history and practice of the state, at and previous to the adoption of the constitution. The circumstances referred to by counsel, it is claimed, would show that, previous to the adoption of the present constitution in 1851, the police of the several cities and villages within the state had been elected by the electors resident therein, or appointed by boards or officers elected by the electors. And, therefore, it is to be inferred from the above declaration in the bill of rights, to wit, “ and all powers not herein delegated remain with the people,” that the power to change the mode of election or appointment of the police force of cities and villages was intended to be withheld from the general assembly. To this argument a majority of the court desire to express their unqualified dissent. By such interpretation of the constitution, the body of laws in force at the time of its adoption would have become as permanent and un - changeable as the constitution itself. Eor such argument would apply with equal force to every subject of legislation concerning which no special direction is contained in the constitution. Indeed, the true rule for ascertaining the powers of the legislature is to assume its power under the — 114 — general grant ample for any enactment within the scope of legislation, unless restrained by the terms or the reason of some express inhibition. It is also claimed, on behalf of the relator, that the act in question is in conflict with the spirit of article 10 of the constitution, the first section of which provides : “ The general assembly shall provide by law for the election of such county and township officers as may be necessary.” The argument based on this provision, as we understand it, may be stated thus : At the time of the adoption of the constitution, as ever since, certain of the county and township officers were conservators of the peace, and composed a part of the state constabulary. And as all county and township officers must be elected, therefore the intention may be inferred that all conservators of the peace and the constabulary of the state must be elected. It is true that some of the duties of sheriffs elected by counties, and of constables elected by townships, are similar to those of city and village policemen; but it is not true that city or village policemen are officers of a county or township; nor is it true that the duties of sheriffs and constables are prescribed by the constitution, or that the duties imposed on policemen by law are owing only to residents of the locality to which they belong. Many duties of policemen relate to matters of general concern, and have always been regulated by the general laws of the state. Indeed the only legitimate argument to be drawn from this provision of the constitution militates against the conclusion of counsel. The framers of the constitution having provided for the election of county and township officers, without having made any such provision in relation to city or village officers, raises an inference that the intention was to leave the manner of electing or appointing the latter to the wisdom and discretion of the legislature. But there is no necessity for such inference, as it is expressly provided in section 27 of article 2 as follows : “ The election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the eon — 115 — •stitution of the United States, shall be made in such manner as may be directed by law ; but no appointing power shall be exercised by the general assembly, except as prescribed in this constitution and in the election of United States senators.” ~We also differ with relator’s counsel in their construction ■of this section, to wit, that the power being in the conjunctive, and not the disjunctive, the legislature may not prescribe for the election or appointment of such officers, but must make certain of such officers elective and others appointive, without power of change. By the literal reading, the same officer should be both elected and appointed; but the legal meaning is, that each officer,- when it is not otherwise provided, shall be elected or appointed in such manner as may be directed bj' law; and the law so directing the election or appointment may be changed at the will of the law-making power. The defendants, as members of the board of police commissioners for the city of .Cincinnati, as well as the policemen by them appointed, are officers for whose election and appointment no provision is made in the constitution of the state or of the United States, and therefore clearly come within the provisions of section 27 of article 2 of the constitution. Counsel for relator further claim that “ the constitution is a limitation upon the power of the legislative department, but is to be regarded as a grant of power to the other departments of the government. Neither the executive nor the judiciary, therefore, can exercise any authority or power, except such as -is clearly granted by the constitution.” The objection here sought to be made is, that the general assembly could not confer the power of appointing the board of commissioners upon the governor. There is no such discrimination in the constitution as above stated. Power was given to the general assembly to create the board of police commissioners, and to prescribe the manner in which it should be filled, either by election or appoint — 116 — ment. Appointment by tbe governor was prescribed. In-, this the constitution was not violated. The principle-which determines this point was announced in The State ex rel. v. The Judges, 21 Ohio St. 1; also in Walker v. Cincinnati, Ib. 14, where the power of appointing certain officers was conferred on certain judges. It is also contended that the act in question is in violation of section 16 of article 2, which provides that “ no bill shall contain more than one subject, which shall be clearly expressed in its title,” etc. The title of this act reads as follows : “An act to regulate the police force in cities of the-first class, and to repeal,” etc. The objection made is this, that this act embraces two subjects, namely : 1. The police of the city, which before the passage of the act had been under the control of a board of police commissioners. 2. The health of the city, which had been under the supervision of a board of health. We think there is but one-subject embraced in this act. The preservation of the public health is a duty clearly within the scope of police regulations. The mere fact that the police powers of the state may have been exercised by different boards or agencies within a particular district, does not divide them into different subjects of legislation within the meaning of this provision of the constitution; for instance, a statute which places the police force of a district, when in the discharge of distinct police duties, under the control of distinct boards, would not contain more than one subject of legislation. By the act in question, the entire police force of the city of Cincinnati, in the discharge of all police duties, is placed under the control of a single board. It contains but one subject. If, however, it were otherwise, we would follow the decisions of this court heretofore made, and hold that the-provision of the constitution above cited is directory, and not mandatory. See Miller v. State, 8 Ohio St. 475; Pim v. Nicholson, 6 Ohio St. 176. Lehman v. McBride, 15 Ohio St. 573, 602. In holding this provision to be directory, we do not mean.. — 117 — however, to be understood as saying that it is without obligatory force. On the contrary, it is a direction to the general assembly, which each member, under the solemn obligation of his official oath, is bound to observe and ■obey. To the legislator it is of equal obligation, with a mandatory provision. The difference between a mandatory .and directory provision is this, and nothing more : the former avoids, the latter does not. This is a rule of decision, and is based on grounds of expediency. The rule is amply recognized by all courts of law, and the reason of the rule is this, that less injury results to the general public by disregarding than by enforcing the letter of the law. The criticism to which the 18th section of the act is ■subjected by counsel does not affect the defendants in this action. The section reads : “ The officers of the board of health in cities to which this act is applicable, and also all officers created by council or under legislative act, in, for, or under departments placed under control of this board, ■are hereby abolished.” The effect of this section was to abolish the offices held by the “ officers” referred to. The last objection made to the validity of this act is based on sec. 4 of art. 15 of the constitution, which declares: “ No person shall be elected or appointed to any office in this state, unless he possesses the qualifications of an elector.” The question arises under the 4th section of the act, which provides: . . . “ Each member and officer of the police force shall be a citizen of the United States, and a resident citizen, for three years, of the city in which he shall be appointed, and able to read and write the English language.” There is no claim made that the qualifications prescribed in the act, in view of the nature of the duties to be performed, are unreasonable, or even unnecessary to the discharge of the duties. The point made is, that disqualifications are imposed by the statute which are not imposed by fhe constitution. It is apparent that this statute is not in conflict with the terms of this constitutional provision. It does not autho — 118 — rize the appointment of a person who is not an elector.. The express provision of the constitution is, that a person not an elector shall not be elected or appointed to any office in this state. Now, unless the clear implication is-that every person who has the qualifications of an elector shall be eligible to any office in this state, there is no conflict between the statute and the constitution. I do not believe that such implication arises. There are many offices, the duties of which absolutely require the ability of reading and writing the English language. There are many electors who, from habit of life and otherwise, are wholly unlit to discharge the duties of many offices within this state. If the framers of the constitution had intended to take away from the legislature the' power to name disqualifications for office, other than the one named in the constitution, it would not have been left to. the very doubtful implication which is claimed from the provision under consideration. The power under the general grant being ample and certain, a statute should not be declared void-because in conflict with an alleged implication, unless such implication be clear and indubitable. In the consideration of this case, I may add, we have confined ourselves, as was our duty to do, solely to the question of legislative power, without any thought or inquiry as to the wisdom of the act, or the motives which induced it. And, being unable to find a conflict between the statute and -either the letter or the reason of the limitations upon legislative power contained in the constitution, it is-our duty to affirm the validity of the statute. And, having come to this conclusion in the exercise of our own judgment, we are gratified in believing that the decisions in other states on germain questions are in harmony with us. The People ex rel. v. Draper, 15 N. Y. 532, is a leading case. The question was as to the constitutionality of a statute of New York, passed in 1857. The statute was passed under the constitution of 1846, which provided: “All county officers, whose election or appointment is not — 119 — provided for by this constitution, shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the legislature may direct. All city, town, and village officers, whose election or appointment is not provided for in this constitution, shall be elected by the electors of such cities, towns, or villages, or some division thereof, or appointed by such authorities thereof as the legislature may designate for that purpose.” It was also provided by the constitution, “ That all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct.” Under this constitution, and previous to the year 1857, the cities of New York and Brooklyn, respectively, were entitled to elect or appoint, by such local authorities as the legislature might designate, their local officers and policemen. By the statute of 1857, the counties of New York, Kings, Westchester, and Richmond (including the cities of New York and Brooklyn as well as other territory) were united into a district called the Metropolitan Police District of the State of New York. Eor this district the governor, by and with the advice and consent of the senate, was required to appoint five commissioners of police. These commissioners, as a .board, were invested with the appointment and control of all policemen within the district ; and the power of the inhabitants of New York and Brooklyn to elect, or by their local authorities to appoint, any part of the police force of either city was taken away. This statute .the court of appeals held to be constitutional, and that it was no objection that it divested the local constituencies of the franchise of electing their police officers. It is true, two of the eight judges comprising the court dissented from the judgment of the court; but the chief -ground of their dissent is not an element in the case before us, to wit, a constitutional provision securing to the inhabitants of cities and villages a voice in the selection of their local police. — 120 — Some suggestions have been made in argument which are not mentioned in this opinion, but, on the whole case, a majority of the court are of opinion that the demurrer of the relator to the plea of defendants should be overruled. Demurrer overruled. Rex, J., dissented.