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The ferred to must be conceded to be paramount over any legislative enactment. It is proper to add that the succeeding session of the General Assembly removed all doubt upon this point by expressly taking away from the Commission any power over the regulation of motor traffic within municipal corporations and expressly recognized the unlimited power of such regulation to be in the municipalities.

MARSHALL, C. J. (concurring). judgment in this case reverses the order of the Public Utilities Commission and causes an ordinance of the city of Lorain, which is in conflict with the order of the Commission, to prevail over the Commission's order, and the minority of this court fully concur in that judgment, but wholly disagree with the majority upon the reasons by which it is adjudged that the ordinance has paramount force and effect. There would be no disagreement with the per curiam opinion, which is concurred in by four members of the court, if no question were made as to the source of power on the part of the municipality. We are not able to agree with the opinion in its entirety, because of the limitations placed upon the power of the municipality. The effect of the decision is therefore to make every ordinance of a municipality affecting the control and regulation of traffic upon its streets subject to such limitations as may be sought to be imposed by the Public Utilities Commission, and, in the event of conflict, to submit to the Supreme Court of the state as a justiciable question whether the ordinance is a reasonable police regulation.

While we agree that municipalities have the power to pass ordinances providing reasonable police regulation of traffic upon their streets, we emphatically disagree that any such ordinances, under any circumstances, can be rendered nugatory by any order of the Public Utilities Commission. We are compelled to register an emphatic protest, because in the absence of such a protest every word of the per curiam opinion would become the established law of this state and an authority proper to be cited in other controversies affecting the power of municipalities over regulation of street traffic.

No reference is made in the majority opinion to the provisions of the ordinance of the city of Lorain, which are the subjectmatter of this controversy. That ordinance is one controlling traffic upon some of its most congested streets, and the preamble to the ordinance, as well as the ordinance itself, recites the existence of congestion, and that transportation service being rendered by street car lines on those streets will be impaired and made less efficient to the inhabitants and the public, unless certain restrictions are made with reference to the operation and control of jitney bus service on those streets, and that by reason of the enactment of the ordinance and the enforcement of its provisions the street railroad company will be induced to expend a large amount of money for new construction and extensions of its service within the limits of said city of Lorain. It further clearly recites that the unnecessary congestion of traffic on those streets and avenues by reason of the public bus service tends to make the same dangerous to the public generally and a menace to the lives of the citizens of the municipality. The effect of the majority pronouncement is to give the Public Utili ties Commission a measure of power over municipalities which may not be contravened by municipal legislation, and the only protection a municipality will have under that pronouncement is to prosecute error We take issue with the first sentence of to this court and obtain the judgment of the per curiam opinion, to the effect that this court upon the reasonableness and lawthis controversy turns upon the construc- fulness of the order of the Commission. tion to be given section 614-86, Gen. Code. The majority pronouncement, therefore, That section is a part of the motor trans- holds in effect that the Public Utilities Comportation Code recently adopted by the Leg- mission is better able to judge of the safety islature to regulate motor transportation of traffic conditions upon congested streets throughout the state. 110 Ohio Laws, 211. of municipalities than the constituted auIt is true that that Code confers certain thorities of the municipalities respectively. power and authority upon the Commission It further holds in effect that this court is in the matter of regulating service, fixing better able to judge of the reasonableness rates, and issuing certificates of convenience of such an order of the Commission than and necessity, which certificates are equiva- the municipal authorities themselves. The lent to licenses. It was realized by the deplorable character of this pronouncement General Assembly that by virtue of section more clearly appears when it is pointed 3, article 18, of the Constitution, giving to out that this court will not interfere with municipalities all powers of local self-gov- an order of the Commission in such maternment, the Legislature had no power to ters, unless it affirmatively appears that the confer authority upon the Public Utilities Commission's order is so manifestly contraCommission to license the use of motor ve- ry to the evidence adduced as to indicate hicles upon the streets of municipalities, con- bias and prejudice. This has been repeattrary to the wish and will of municipal au- edly held by this court. Village of St. thorities. Clairsville v. Public Utilities Commission, The constitutional amendment above re- 102 Ohio St. 574, 132 N. E. 151; Ohio Utili

(148 N.E.)

ties Co. v. Public Utilities Commission, 108 conferring upon municipalities the authoriOhio St. 143, 140 N. E. 497, and again quite ty to regulate the use of all vehicles, inrecently in Cincinnati Traction Co. v. Pub- cluding motor vehicles, upon the streets and lic Utilities Commission, 148 N. E. 921, de- avenues of cities. That section was not cided May 19. 1925, not yet [officially] re- repealed at the time of the enactment of ported. the motor transportation Code.

Even if we should ignore entirely the provisions of section 3, article 18, of the Constitution, as the majority of this court seem determined to do, and even if local self-government is to be entirely relegated to the scrap heap, it is impossible to understand how the majority of this court are able to explain the utter disregard of sections 3714 and 3632, General Code, which must in any event be construed in pari materia with the motor transportation Code. It is quite significant that the majority opinion does not even attempt to explain. The majority opinion would render entirely nugatory many salutary provisions of municipal ordinances which make provision for "one way traffic" and "no left turn," and many other important regulations which have been

It was the opinion of the Constitution framers in 1912 that in matters of local selfgovernment the municipal authorities were better able to judge of local conditions than state authorities, and that was recognized by the Legislature in the enactment of the motor transportation Code, but this has all been reversed by the very brief, even sententious, declaration of this court. It must be clearly kept in mind that this controversy relates to an effort on the part of a city to regulate traffic upon one or more of its principal streets, for the purpose of guarding the lives of its inhabitants from the ever-increasing dangers of motor traffic. It is reported that in 1924 there were 19,000 deaths in the United States due to careless operation of motor vehicles, and that during the same year there were approximately found necessary in the larger cities of the 475,000 persons who received injuries not resulting in death. The comparison with the year 1923 shows that conditions are rapidly growing worse. The number of motor vehicles increases year by year, the seventeen million mark has been passed in the United States. This fact, added to the rapid growth of the cities in population, has caused the congestion of traffic to present an ever-increasing problem. Trallic rules and regulations which would have been safe 20 years ago have to-day become impossible. If full responsibility for the dangers of the increased congestion could be charged against the Public Utilities Commission, and through it against the state of Ohio, there might be some measure of justification for a declaration that the Commission has power and authority paramount over that of the municipalities. The brief majority opinion evidently loses sight entirely of the fact that section 3714, General Code, is still in full force and effect, and that, on the one hand, it gives to municipali"Local legislative authorities, and not the ties special power to regulate the use of courts, are primarily the judges of the necesstreets and confers upon municipal council sities of local situations calling for police regthe care, supervision, and control of all pub-ulation, and the courts can only interfere when lic ways within such corporations, and, on such regulation arbitrarily exceeds a reasonthe other hand, requires them to be kept able exercise of authority." open, in repair, and free from nuisance. A very large part of the volume of litigation in the trial courts of the state relates to the liability of municipalities for neglect of 'the duties and liabilities imposed by section 3714. The injustice of charging upon municipalities such duties and liabilities and, at the same time, by judicial pronouncement, rendering them helpless to remedy dangerous conditions, must be apparent to the most casual reader of the majority opinion.

Section 3632, General Code, has apparently been entirely lost sight of; this section

state. Municipalities must have a wide latitude, not only in determining the needs of their citizens and the public in the matter of transportation facilities, but also in selecting and controlling the character and quality of the transportation service within their boundaries. This court has frequently declared ordinances of cities to be invalid, but in no case prior to this time has it been declared that the Legislature may give power to the Public Utilities Commission, or any other board created by legislation, with purely administrative duties, to impose regulations upon a municipality contrary to its ordinances. A very clear expression of the paramount power of municipalities is found in Allion v. City of Toledo, 99 Ohio St. 416, 124 N. E. 237, 6 A. L. R. 426. In that case the opinion of Jones, J., quoted with approval language found in the opinion of Schmidinger v. City of Chicago, 226 U. S. 578, 33 S. Ct. 182, 57 L. Ed. 364, Ann. Cas. 1914B, 284, as follows:

The syllabus of the Allion Case, in which all judges concurred, is equally clear and conclusive:

"Unless there is a clear and palpable abuse of power, a court will not substitute its judgment for legislative discretion. Local authoritics are presumed to be familiar with local conditions and to know the needs of the community."

There has been a tendency on the part of this court for several years to render mean

ingless that part of section 3, article 18, of and public schools are matters of general the Constitution, which confers upon mu- governmental cognizance, not to be affected nicipalities all powers of local self-govern- by special local regulations, and, on the othment, and this decision has fully completed er hand, that those matters which relate to the process and has left nothing more to the internal government of a municipality, be desired by the opponents of municipal such as local elections of municipal officers home rule. and the powers, duties, and functions of This challenge of municipal home rule, as such municipal officers, are matters of local provided in section 3, article 18, of the Con- self-government, which may not be influstitution, calls for a discussion of the much-enced or controlled by general laws. debated question as to what is meant by In addition to the foregoing cases there and what is included within the language in are others which should receive more exthe first part of the section, to wit, "au- tended discussion. In the case of Billings thority to exercise all powers of local self- v. Cleveland Ry. Co., 92 Ohio St. 478, 111 N. government" and what is meant by and E. 155, the charter provisions of Cleveland what is included within the latter part of were held paramount to sections 3777 and the section, to wit, "to adopt and enforce 9105, General Code, and that it was therewithin their limits such local police, sanita- fore not necessary to procure consents of ry, and other similar regulations as are abutting property owners in granting street not in conflict wth general laws." franchises to street railroads. The effect of that decision was to place the laws and ordinances of the city beyond the control of the laws of the state in the matter of the use and occupancy of streets of a city by a public utility, and in that respect the case involves a parallel principle to that decided in the instant case. The per curiam of the majority must therefore be held to have overruled the Billings Case, without any mention of it.

Numerous cases have been decided by this court since 1912, involving an interpretation of this section, and, while it is clear that "local police, sanitary and other similar regulations" can only be valid when not in conflict with general laws, there has been a difficulty in determining whether a given ordinance relates to "powers of local self-government," or to "local police, sanitary, and other similar regulations." A discussion of the distinction is found in a very clear opinion of Donahue, J., in Cleveland Telephone Co. v. City of Cleveland, 98 Ohio St. 358, at page 377, 121 N. E. 701, and in the opinion in Billings v. Cleveland Ry. Co., 92 Ohio St. 478, 111 N. E. 155; and also in Froelich v. City of Cleveland, 99 Ohio St. 376, 124 N. E. 212. These cases and others which will hereafter be noticed have settled the proposition that there are some powers of local self-government which may be exercised by municipalities, regardless of conflict with general laws. While this court has never declared in a single case any definite rule for determining which powers and functions of municipalities may be classed as local self-government, a survey of the cases which have been decided by this court does state lines of distinction from which a rule can be evolved. Fitzgerald v. City of Cleveland, 88 Ohio St. 338, 103 N. E. 512, Ann. Cas. 1915B, 106; State Board of Health v. City of Greenville, 86 Ohio St. 1, 98 N. E. 1019, Ann. Cas. 1913D, 52; Williams v. Scudder, 102 Ohio St. 305, 131 N. E. 481; Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N. E. 519; State ex rel. Lentz v. Edwards, 90 Ohio St. 305, 107 N. E. 768; State ex rel. v. French, 96 Ohio St. 172, 117 N. E. 173, Ann. Cas. 1918C, 896; State ex rel. Hile v. Baker, 92 Ohio St. 506, 112 N. E. 1086; Hile, Taxpayer, v. City of Cleveland, 107 Ohio St. 144, 141 N. E. 35; State ex rel. Frankenstein v. Hillenbrand, 100 Ohio St. 339, 126 N. E. 309.

The line of distinction running through the foregoing cases is that matters of health

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This decision was concurred in by Marshall, C. J., and Wanamaker, Day, and Allen, JJ.

The same proposition was again declared in Murphy v. City of Toledo and Harding v. City of Bowling Green, 108 Ohio St. 342, 140 N. E. 626. The syllabus in those cases is as follows:

"1. Municipalities have full power to regulate or control the use of their own streets. pality may make any reasonable classification of vehicular traffic in the use of its streets.

"2. In such control or regulation a munici

"3. The judgment of a legislative body as to a reasonable classification cannot be questioned, except when it is in clear conflict with some express provisions of state or federal Constitution."

In the case of Froelich v. City of Cleveland, 99 Ohio St. 376, 124 N. E. 212, the following syllabus was pronounced:

"1. In the construction of a section of the Constitution, the whole section should be construed together, and effect given to every part and sentence. One part must not be allowed

(148 N.E.)

to defeat another, if by any reasonable construction the two can be made to stand together.

SCHEIBLE, Mayor, et al. v. HOGAN. HOGAN et al. v. PUBLIC UTILITIES COMMISSION OF OHIO.

"2. When a city has adopted a charter, under which it is authorized to exercise 'all powers of local self-government,' pursuant to the provisions of sections 3 and 7 of article 18 of the Constitution, the authority to locate, establish and protect the streets within its limits resides in the municipality, and it may adopt and enforce such reasonable regulations for their proper and economic use as it deems. to be proper. It may regulate the weight of loads and the width of tires of vehicles passing over the streets. It derives this authority, not by grant from the Legislature, but under express authority from the people of the state given in the Constitution:

"3. The state and municipalities may make all reasonable, necessary, and appropriate provisions to promote the health, morals, peace, and welfare of the community. But neither the state nor a municipality may make any regulations which are unreasonable. The means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation."

This was concurred in by Nichols, C. J., and Johnson, Matthias, Wanamaker, and Robinson, JJ.

All of the foregoing cases last referred to and discussed relate to the use and regulation of vehicular traffic, and more especially motor traffic, upon the streets of municipalities, and clearly hold that municipal regulation and control are not subject to the general laws of the state, and the opinion pronounced by the majority in the instant case must therefore be held to be in clear conflict with each and all of those decisions. It would seem that they should not be overruled by a brief per curiam, which does not attempt to distinguish them or to overrule their pronouncements. The lengthy, well-reasoned opinions in each and all of those cases should not be thrown into the discard with no effort whatever to counteract their logic. An absence of discussion of those cases in the per curiam in the instant case leaves this question in a chaotic state.

(Nos. 18787, 18853.)

(Supreme Court of Ohio. June 9, 1925.)

(Syllabus by the Court.)

Carriers 8-Certificate of convenience and necessity is revocable license, conferring no property rights.

A certificate of convenience and necessity issued to a motor transportation company by the Public Utilities Commission is a revocable license, which confers no property rights upon the holder thereof, and, for good cause shown, the same may at any time be revoked, altered, or amended by the Commission.

2. Carriers 8-Right to revoke certificate of convenience and necessity applies to certificate issued on affidavit prior to April 28, 1923, and certificate issued on application thereafter.

Such right to revoke, alter, or amend applies equally to a certificate issued by virtue of an affidavit filed by motor transportation companies operating on or before April 28, 1923, and a certificate issued upon the written application of motor transportation companies beginning operations after that date.

3. Carriers 8-Order revoking certificate of convenience and necessity may be entered upon good cause shown upon notice.

Any such order revoking, altering, or amending a certificate may be entered upon good cause shown upon not less than 5 days' notice to the holder thereof, and an opportunity to be heard.

4. Appeal and error 790 (1)—Where certificate of convenience and necessity is altered or amended during pendency of error proceedings from judgment thereon, reviewing court can proceed no further.

Where a judgment has been entered by a court of competent jurisdiction in favor of a motor transportation company, based upon the operative provisions of a certificate of convenience and necessity issued by the Public Utilities Commission, and thereafter and during the pendency of error proceedings such certificate is altered or amended by the Commission in such manner as to nullify those provisions upon which the judgment is founded, a reviewing court is not authorized to further proceed. Miner v. Witt, 82 Ohio St. 237, 92 N. E. 21.

Error to Court of Appeals, Mahoning County.

Error to Public Utilities Commission.

The per curiam opinion enumerates the powers sought to be conferred upon the Public Utilities Commission by section 614-86, General Code, and we find no fault with that analysis, except in the seventh paragraph thereof, in which it is stated that by Action by John H. Hogan against Charles virtue of that section the municipality is F. Scheible, Mayor, and others. Judgment authorized to make local police regulations, for defendants on appeal to Court of Appeals thereby intimating that it is only by vir- was reversed and rendered for plaintiff, and tue of that section that municipalities have defendants bring error. Also proceeding the power to exercise control over their before the Public Utilities Commission on streets in the matter of bus transportation. complaint of the city of Youngstown. The For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Commission modified its former order grant- the restrictions governing the receiving and ing certificate of convenience and necessity, discharging of passengers within the conchanging routes of busses, and establishing gested district, would render his business restrictions governing handling of passengers within congested districts, and John H. Hogan and others bring error. Cases heard jointly by agreement. Judgment of Court of Appeals reversed, and order of commission affirmed.-[By Editorial Staff.]

These two causes, one coming on error from the Court of Appeals of Mahoning county, the other on error proceeding from the Public Utilities Commission of Ohio, were heard jointly, by agreement. The two cases are so linked together that they could not otherwise be disposed of.

On December 14, 1918, the city of Youngstown renewed a franchise to the street railroads, and fixed rates of fare for transportation of passengers. On July 10, 1924, Hogan and other owners and operators of busses who had been operating prior to April 28, 1923, were granted certificates of public convenience and necessity to operate over certain streets in the city of Youngstown, without any restrictions as to places of loading and unloading passengers; such certificate containing the following condition:

"And conditioned that local subdivisions may make reasonable local police regulations within their respective boundaries not inconsistent with the provisions of sections 614-84 to 614

102 of the General Code of Ohio."

Thereafter, on July 17, 1924, the city of Youngstown passed a traffic ordinance, as an emergency measure, which ordinance established a congested district in and surrounding the public square, otherwise known as the "Diamond," and provided, in another part of the ordinance, that busses should not receive or discharge passengers at any place within the congested district, except within certain narrow and restricted limitations, the result of which was that passengers were unloaded at points far distant from the Diamond, which is the central part of the city of Youngstown. Thereupon, on July 23, 1924, an injunction suit was filed by Hogan against the city authorities in the common pleas court of Mahoning county, and the same was heard on August 7, 1924, and on that day the petition was dismissed. The case was promptly appealed to the Court of Appeals, and heard on appeal on September 12, 1924, and decided on that day in favor of the bus owners, and a permanent injunction was issued restraining the city officials from interfering with the certificate of convenience and necessity theretofore granted by the Utilities Commission. The only evidence introduced before the Court of Appeals was the certificate of convenience and necessity, the jitney ordinance, the franchise ordinance of the street railroad, the city charter, and the very brief testimony of John H. Hogan, who gave it as his opinion that

wholly unprofitable. Thereupon, within 10 days after that decision, the law department of the city of Youngstown filed a complaint before the Public Utilities Commission, under the provisions of section 614-87 General Code, and after 5 days' notice that complaint was heard on September 29, on evidence, and the Utilities Commission modified its former

The

order, changing the routes of the busses and establishing restrictions governing receiving and discharging passengers within the congested district more favorable to jitney owners than the ordinance, and yet wholly unsatisfactory to them. That order was entered on September 29. 1924. final order of the Commission was not entered until November 28, 1924. In the meantime a motion to certify the injunction suit from the Court of Appeals to this court was allowed on November 26, 1924. In due course, a petition in error from the order of the Utilities Commission was filed in this court by the bus owners.

The traffic ordinance adopted July 17, 1924, classified public motor vehicles into street railway busses, interurban busses, jitneys, and taxicabs. No restrictions were made as to the place where taxicabs and interurban busses might receive and discharge passengers, but each of the other classes of vehicles was circumscribed by definite limitations as to places of receiving and discharging passengers within the congested district. It is claimed by the bus owners that street railway busses were favored in designating stands where passengers might be received and discharged, and this is charged as a discrimination in the petition filed in the common pleas court. It further appears by the record that the Youngstown Street Railway Company is operating upon a service at cost basis, and is practically operated by the city under direction of a public official, known as the city street railroad commissioner, and that the street railway busses are operated as a part of the same system, with universal transfers, under like supervision of the city commissioner. The record before the Utilities Commission also discloses that an initiative petition was filed, whereby it was sought to enact a city ordinance by that method, providing different places for receiving and discharging passengers, and that, upon submission to a vote of the people, that ordinance was defeated by a vote 7.375 for and 8,270 against the ordinance. This was introduced for the purpose of showing the wishes of the people of Youngstown. The order of the Commission created 11 bus routes, and provided places where each of the routes might receive and discharge passengers within the congested district. These places were not identical with the places allowed by the city ordi

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