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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 er. the 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 there within 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 Numerous cases have been decided by this of that decision was to place the laws and court since 1912, involving an interpreta- ordinances of the city beyond the control tion of this section, and, while it is clear of the laws of the state in the matter of the that “local police, sanitary and other similar use and occupancy of streets of a city by a regulations” can only be valid when not public utility, and in that respect the case in conflict with general laws, there has involves a parallel principle to that decided been a difficulty in determining whether in the instant case. The per curiam of the a given ordinance relates to "powers of local majority must therefore be held to have self-government,” or to “local police, sanita- overruled the Billings Case, without any ry, and other similar regulations." A dis- mention of it. cussion of the distinction is found in a very A more direct decision of the point inclear opinion of Donahue, J., in Cleveland volved in the instant case is Village of PerTelephone Co. v. City of Cleveland, 98 Ohio rysburg v. Ridgway, 108 Ohio St. 245, 140 St. 358, at page 377, 121 N. E. 701, and in N. E. 595, in which it was declared, in the the opinion in Billings v. Cleveland Ry. Co., second syllabus; 92 Ohio St. 478, 111 N. E. 155; and also in Froelich v. City of Cleveland, 99 Ohio St. maintain, and repair public streets within the

“The power to establish, open, improve, 376, 124 N. E. 212. These cases and others municipality, and fully control the use of them, which will hereafter be noticed have set- is included within the term 'powers of local tied the proposition that there are some self-government.'” powers of local self-government which may be exercised by municipalities, regardless of

This decision was concurred in by Marconflict with general laws. While this court shall, C. J., and Wanamaker, Day, and Alhas never declared in a single case any len, JJ. definite rule for determining which powers

The same proposition was again declared and functions of municipalities may be

in Murphy V. City of Toledo and Harding classed as local self-government, a survey v. City of Bowling Green, 108 Ohio St. 342, of the cases which have been decided by this 140 N. E. 626. The syllabus in those cases court does state lines of distinction from is as follows: which a rule can be evolved. Fitzgerald v. City of Cleveland, 88 Ohio St. 338, 103 N. E.

"1. Municipalities have full power to regu512, Ann. Cas. 1915B, 106; State Board of late or control the use of their own streets. Health v. City of Greenville, 86 Ohio St. 1, pality may make any reasonable classification

“2. In such control or regulation a munici98 N. E. 1019, Ann. Cas. 1913D, 52; Wil- of vehicular traffic in the use of its streets. liams v. Scudder, 102 Ohio St. 305, 131 N.

"3. The judgment of a legislative body as to E. 481; Village of Struthers v. Sokol, 108 a reasonable classification cannot be questionOhio St. 263, 140 N. E. 519; State ex rel. ed, except when it is in clear conflict with Lentz v. Edwards, 90 Ohio St. 305, 107 N. some express provisions of state or federal E. 768; State ex rel. v. French, 96 Ohio St. Constitution.” 172, 117 N. E. 173, Ann. Cas. 1918C, 896; State ex rel. Hile v. Baker, 92 Ohio St. 506, In the case of Froelich 7. City of Clete112 N. E. 1086; Hile, Taxpayer, v. City of land, 99 Ohio St. 376, 124 N. E. 212, the folCleveland, 107 Ohio St. 144, 141 N. E. 35; lowing syllabus was pronounced: State ex rel. Frankenstein v. Hillenbrand,

"1. In the construction of a section of the 100 Ohio St. 339, 126 N. E. 309.

Constitution, the whole section should be conThe line of distinction running through strued together, and effect given to every part the foregoing cases is that matters of health and sentence. 'One part must not be allowed

in was concur Johnson, Ma con. JJ.

of the forego w disenssed relat 'n of rebicular to mtur traffic, up

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(148 N.E.) to defeat another, if by any reasonable construction the two can be made to stand to SCHEIBLE, Mayor, et al. v. HOGAN. gether.

"2. When a city has adopted a charter, un- HOGAN et al. v. PUBLIC UTILITIES COM-
der which it is authorized to exercise 'all pow-

ers of local self-government,' pursuant to the
provisions of sections 3 and 7 of article 18 of

(Nos. 18787, 18853.)
the Constitution, the authority to locate, es-

(Supreme Court of Ohio. June 9, 1925.) tablish and protect the streets within its limits resides in the municipality, and it may

(Syllabus by the Court.) adopt and enforce such reasonable regulations for their proper and economic use as it deems I. Carriers Cm8_Certificate of convenience to be proper. It may regulate the weight of

and necessity is revocable license, conferring loads and the width of tires of vehicles pass

no property rights. ing over the streets. It derives this author

A certificate of convenience and necessity ity, not by grant from the Legislature, but un- issued to a motor transportation company by der express authority from the people of the the Public Utilities Commission is a revocable state given in the Constitution.

license, which confers no property rights upon 3. The state and municipalities may make the holder thereof, and, for good cause shown, all reasonable, necessary, and appropriate pro- the same may at any time be revoked, altered, visions to promote the health, morals, peace,

or amended by the Commission. and welfare of the community. But neither

2. Carriers 8Right to revoke certificate the state nor a municipality may make any regulations which unreasonable. The

of convenience and necessity applies to cermeans adopted must be suitable to the end in

tificate issued on affidavit prior to April 28, view, must be impartial in operation and not

1923, and certificate issued on application

thereafter, unduly oppressive upon individuals, must have a real and substantial relation to their pur Such right to revoke, alter, or amend appose, and must not interfere with private plies equally to a certificate issued by virtue of rights beyond the necessities of the situation." | an affidavit filed by motor transportation com

panies operating on or before April 28, 1923,

and a certificate issued upon the written apThis was concurred in by Nichols, C. J., plication of motor transportation companies and Johnson, Matthias, Wanamaker, and beginning operations after that date. Robinson, JJ.

3. Carriers m 8-Order revoking certificate of All of the foregoing cases last referred to

convenience and necessity may be entered and discussed relate to the use and regula

upon good cause shown upon notice. tion of vehicular traffic, and more especial Any such order revoking, altering, ly motor traffic, upon the streets of munici- amending a certificate may be entered upon palities, and clearly hold that municipal good cause shown upon not less than 5 days' regulation and control are not subject to notice to the holder thereof, and an opportunity the general laws of the state, and the opin- to be heard. ion pronounced by the majority in the in- 4. Appeal and error C 790(1)-Where certifistant case must therefore be held to be

cate of convenience and necessity is altered in clear conflict with each and all of those

or amended during pendency of error prodecisions. It would seem that they should

ceedings from judgment thereon, reviewing

court can proceed no further. not be overruled by a brief per curiam,

Where a judgment has been entered by a which does not attempt to distinguish them court of competent jurisdiction in favor of a or to overrule their pronouncements. The motor transportation company, based upon the lengthy, well-reasoned opinions in each and operative provisions of a certificate of conall of those cases should not be thrown in- venience and necessity issued by the Public to the discard with no effort whatever to Utilities Commission, and thereafter and during counteract their logic. An absence of dis- the pendency of error proceedings such certifi

cate is altered or amended by the Commission cussion of those cases in the per curiam in in such manner as to nullify those provisions the instant case leaves this question in a upon which the judgment is founded, a reviewchaotic state.

ing court is not authorized to further proceed. The per curiam opinion enumerates the Miner v. Witt, 82 Ohio St. 237, 92 N. E. 21. powers sought to be conferred upon the Public Utilities Commission by section 614–86,

Error to Court of Appeals, Mahoning General Code, and we find no fault with County. that analysis, except in the seventh para

Error to Public Utilities Commission. graph 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

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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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 wholly unprofitable. Thereupon, within 10 within congested districts, and John H. Ho- days after that decision, the law department gan and others bring error. Cases heard of the city of Youngstown filed a complaint jointly by agreement. Judgment of Court of before the Public Utilities Commission, unAppeals reversed, and order of commission der the provisions of section 614–87 General affirmed.-[By Editorial Staff.]

Code, and after 5 days' notice that complaint These two causes, one coming on

was heard on September 29, on evidence, and from the Court of Appeals of Mahoning

the Utilities Commission modified its former county, the other on error proceeding from order, changing the routes of the busses the Public Utilities Commission of Ohio, and establishing restrictions governing rewere heard jointly, by agreement. The two ceiving and discharging passengers within cases are so linked together that they could the congested district more favorable to jit. not otherwise be disposed of.

ney owners than the ordinance, and yet

That order On December 14, 1918, the city of Youngs- wholly unsatisfactory to them. town renewed a franchise to the street rail- / was entered on September 29. 1924. The

final order of the Commission was not enterroads, and fixed rates of fare for transportation of passengers. On July 10, 1924, Hogan ed until November 28, 1924. In the meanand other owners and operators of busses time a motion to certify the injunction suit who had been operating prior to April 28, from the Court of Appeals to this court was 1923, were granted certificates of public con

allowed on November 26, 1924. In due venience and necessity to operate over cer- course, a petition in error from the order tain streets in the city of Youngstown, with of the Utilities Commission was filed in out any restrictions as to places of loading this court by the bus owners. and unloading passengers; such certificate

The traffic ordinance adopted July 17, containing the following condition:

1924, classified public motor vehicles into

street railway busses, interurban busses, jit. “And conditioned that local subdivisions may neys, and taxicabs. No restrictions were make reasonable local police regulations within made as to the place where taxicabs and intheir respective boundaries not inconsistent with the provisions of sections 614–84 to 614– terurban busses might receive and discharge 102 of the General Code of Ohio."

passengers, but each of the other classes of

vehicles was circumscribed by definite limiThereafter, on July 17, 1924, the city of tations as to places of receiving and disYoungstown passed a traffic ordinance, as charging passengers within the congested an emergency measure, which ordinance es- district. It is claimed by the bus owners tablished a congested district in and sur- that street railway busses were favored in rounding the public square, otherwise known designating stands where passengers might as the “Diamond," and provided, in another be received and discharged, and this is part of the ordinance, that busses should charged as a discrimination in the petition not receive or discharge passengers at any filed in the common pleas court. It further place within the congested district, except appears by the record that the Youngstown within certain narrow and restricted limi- Street Railway Company is operating upon tations, the result of which was that pas- a service at cost basis, and is practically opsengers were unloaded at points far distant erated by the city under direction of a pubfrom the Diamond, which is the central part lic official, known as the city street railroad of the city of Youngstown. Thereupon, on commissioner, and that the street railway July 23, 1924, an injunction suit was filed busses are operated as a part of the same by Hogan against the city authorities in the system, with universal transfers, under like common pleas court of Mahoning county, supervision of the city commissioner. The and the same was heard on August 7, 1924, record before the Utilities Commission also and on that day the petition was dismissed. discloses that an initiative petition was filed, The case was promptly appealed to the Court whereby it was sought to enact a city ordiof Appeals, and heard on appeal on Septem- nance by that method, providing different ber 12, 1924, and decided on that day in favor places for receiving and discharging pasof the bus owners, and a permanent injunc- sengers, and that, upon submission to a vote tion was issued restraining the city officials of the people, that ordinance was defeated from interfering with the certificate of con- by a vote 7,375 for and 8,270 against the orvenience and necessity theretofore granted dinance. This was introduced for the purby the Utilities Commission. The only evi- pose of showing the wishes of the people of dence introduced before the Court of Appeals Youngstown. The order of the Commission was the certificate of convenience and neces- created 11 bus routes, and provided places sity, the jitney ordinance, the franchise or- where each of the routes might receive and dinance of the street railroad, the city char- discharge passengers within the congested ter, and the very brief testimony of John district. These places were not identical H. Hogan, who gave it as his opinion that with the places allowed by the city ordi.

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(148 N.E.) nance, but, on the contrary, were very much town, the principles declared in the case of more favorable to the bus owners than the Lorain Street Ry. Co. v. Public Utilities ordinance. The places for discharging pas-Commission, 113 Ohio St. 148 N. E. sengers under the order of the Commission 577, decided this day, must be held to be ranged from 1,200 feet to 2,000 feet from the controlling. Having read all of the evidence Diamond, and the places allowed by the ordi- in the case, and especially that portion of nance ranged from one-half to two-thirds of the traffic ordinance which defines the difa mile,

ferent characters of motor vehicles, and The city authorities were apparently sat- which fixes the places where each class may isfied with the modified certificates of the receive and discharge passengers, we are of Commission, because neither the city author- the opinion that a clear case of discriminaities nor the street railway company applied tion has not been made. It must be borne for a rehearing before the Commission, nor in mind that the busses owned by the street have they filed a petition in error in this railway company are operated in conjunccourt. The bus owners are therefore in a tion with the street cars, under municipal position of being complainants of both the supervision through the city street railway city ordinance and the order of the Com-commissioner, with universal transfers, and mission. The petition in error of the bus it will be therefore presumed that they owners from the Commissioner's order like are operated on harmonious schedules therewise claims discrimination against them and by avoiding the congestion which must necin favor of the street railway busses, and al- | essarily be caused where they are operatso claims that the modified certificates are ed by different owners and upon schedules unreasonable and unlawful, in that they ren- which might easily conflict. The courts may der the operation of the busses un profitable properly take into consideration the fact that and amount to a confiscation of their prop- the street railway company is operated by erty.

a city street railway commissioner, on No. 18787:

service at cost basis, which operation inC. C. Crabbe, Atty. Gen., John W. Bricker, cludes street railway busses, in which all of of Columbus, Wm. K. Lewis, City Sol., and the people are interested, and the city there Clyde W. Osborne, of Youngstown, for plain- fore entitled to reasonably regulate its major tiffs in error.

municipal transportation service. If the H. P. McCoy and Wilson, Hahn, Hender- judgment of the Court of Appeals is based son & Wilson, all of Youngstown, for de- upon unwarranted interference with a propfendant in error.

erty right, that proposition has also been met

in recent cases decided by this court, where No, 18853:

it has been shown that a certificate of conH. P. McCoy and Wilson, Hahn, Hender- / venience and necessity is not property, son & Wilson, all of Youngstown, for plain. There being no property in a certificate of

convenience and necessity, there can be no O. C. Crabbe, Atty. Gen., John W. Bricker, confiscation, of Columbus, Wm. K. Lewis, City Sol., and While the instant case is in many respects Clyde W. Osborne, of Youngstown for de similar to Lorain Street Ry, Co. v. Public fendants in error.

Utilities Commission, supra, it is in other Carl F. Shuler, Law Director, of Cleve- respects wholly different, and therefore govland, amicus curiæ.

erned, or at least influenced, by different principles. The Youngstown city ordinance

in the instant case is w.holly different from MARSHALL, C. J. The Court of Appeals the ordinance of the city of Lorain, in that of Mahoning county heard this case upon the Youngstown ordinance is not distinctly evidence and made a general finding in favor a “contract with others for such product or of the plaintiffs. It does not appear by the service,” because by the provisions of the journal entry on file whether this conclu- ordinance all features of operation of a sion was reached upon evidence establishing street railway and the motorbusses owned the fact of interference with property rights, and operated by the street railway company or whether it may have been reached upon are under complete municipal control, not evidence establishing the fact of unlawful only as to the rates and fares to be charged, discrimination, or whether, upon the other but as to the character and quality of the hand, that court merely decided as a legal service to be rendered, all of which is under proposition that, where there is a conflict be the immediate supervision and control of the tween a city ordinance and an order of the street railway commissioner. The same ordiUtilities Commission, the order of the Util- nance makes full provision for valuation of ities Commission shall prevail. It is pro- the property, and for acquisition of the propfessionally stated in the briefs that the court erty hy the city at the expiration of the merely decided the legal question of conflict. franchise, if desired by the city. It is thereInasmuch as this case involves motor trans- fore to all intents and purposes a municipal portation entirely within the city of Youngs- enterprise in which all the people of Youngs

tiff in error.

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town have both a personal and a property | The order of the Public Utilities Commission interest. All these facts bring the instant in cause No. 18853 will be affirmed. case clearly within the scope of section 4, Judgment reversed. article 18, of the Constitution, and thereby Order affirmed. cause the controversy to be further removed from the home rule provisions of section 3, JONES, MATTHIAS, DAY, ALLEN, KIN. article 18.

KADE, and ROBINSON, JJ., concur. Neither the city authorities nor the street railway company having prosecuted error from the order of the Commission, and that order having been made subsequently to the final order entered in the Court of Appeals NORTHERN OHIO TRACTION & LIGHT in cause No. 18787, and the court finding CO. V. PUBLIC UTILITIES COMMIS. nothing unreasonable or unlawful in the

SION. (Nos. 18819, 18892.) order of the Commission, so far as it affects

(Supreme Court of Ohio. June 9, 1925.) the bus owners, this court can do no less than affirm the order of the Commission.

(Syllabus by the Court.) Upon the principles declared in Lorain 1. Carriers uw &Motor equipment not reStreet Ry. Co. v. Public Utilities Commis

quired by Motor Transportation Act to be sion, 113 Ohio St. -, 148 N. E. 577, the judg. owned by transportation company. ment of the Court of Appeals in No. 18787 Motor equipment employed in motor transmust be reversed and the cause remanded portation service is not required by the Motor for further proceedings in accordance with Transportation Act to be absolutely owned by this opinion.

the holder of a certificate of convenience and The city of Youngstown and the Youngs- necessity; this being left to the discretion of town municipal railway company having the Public Utilities Commission. both been protestants before the Public Util. 2. Carriers om 8-Application to alter route ities Commission, and both being apparently or change number of vehicles heard only in satisfied with the order of the Commission, accordance with notice prescribed. and not having prosecuted error therefrom, An application before the Public Utilities it may be suggested that they are in no posi- Commission to change, extend, or shorten a tion to complain, upon the state of the rec- route, or to increase or decrease the number ord in these two cases, of the order made of vehicles employed in motor transportation by the Public Utilities Commission, and it service under a certificate theretofore issued should therefore control, even though it is by the Commission, can only be heard by the

Commission in accordance with the notice remore favorable to the bus owners than the quired by section 614–91, General Code. ordinance of the city of Youngstown.

[1-4] It only remains to consider whether Error to Public Utilities Commission. the procedure of the Motor Transportation

Proceeding before the Public Utilities ComAct has been followed. The application for modification was made on September 22, of convenience and necessity to Claude B.

mission. The Commission granted certificate 1924, and heard on September 29. Five days' Armstrong, to establish new schedules for notice was therefore given, as provided in

motorbusses, with increased capacity, within Section 614–87 General Code. It is contend- city of Akron, and the Northern Ohio Traced that other provisions of the Public Util. tion & Light Company brings error. Order ities Act should apply, and that the bus

reversed.-[By Editorial Staff.) owners were therefore entitled to longer notice. It seems quite clear that the provisions

Mather, Nesbitt & Willkie, of Akron, for of section 614—87 apply, and that they con- plaintiff in error. trol, uninfluenced by other sections of the C. C. Crabbe, Atty. Gen., and John W. Public Utilities Act. Section 614–87 makes Bricker, of Columbus, for defendant in error, provision for granting certificates upon affi

C. M. Horn, of Cleveland, amicus curiæ. davits being filed, and the same section provides that when granted such motor trans MARSHALL, C. J. The city of Akron portation company shall be governed in all adopted an ordinance granting to the North. respects as though the certificate was made ern Ohio Traction & Light Company a fran. upon written application, and the same sec- chise in certain streets, and in the franchise tion further provides for revocation, altera- provided that motorbusses should not be pertion, and amendment upon 5 days' notice. It mitted to operate upon certain streets over is therefore not necessary to look to other which the rail transportation was being opsections of the Code to find the procedure erated. governing such matters.

The Public Utilities Commission issued to The judgment of the Court of Appeals in Claude B. Armstrong a certificate of convencause No. 18787 is therefore reversed, and ience and necessity to operate motorbusses the cause remanded for further proceedings. I between the central portion of the city of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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