Summary
regulating the hours of local firefighters
Summary of this case from City of Cleveland v. StateOpinion
No. 28367
Decided May 7, 1941.
Constitutional law — Legislative power granted to General Assembly, subject to initiative and referendum — Section 1, Article II, Constitution — Municipal corporations — Legislation not to conflict with state legislation — Local self-government — State requirements for platoons for city fire department, constitutional — Section 17-1a, General Code — Fire protection a matter of concern to people of state — Municipalities required to provide funds to carry out state legislation.
1. Under the state Constitution all legislative power of the people is granted to the Legislature, subject to the initiative and referendum, unless such legislative power is expressly or by clear implication granted to municipalities or other governmental subdivisions as arms of the state government.
2. Power is granted to municipal corporations to legislate in the interest of public peace and the protection of persons and property within their territorial limits, but such legislation must not conflict with state legislation on the same subject, and there is reserved to the Legislature power to direct the manner and method by which municipal corporations shall effectively carry out their functions having to do with the preservation of the peace and the protection of persons and property.
3. Section 17-1 a, General Code, providing that the chief of the fire department of a city, not using the eight-hour shift system, shall divide the uniform force into not less than two platoons, each platoon not to be on duty more than 24 hours except in cases of extraordinary emergency and then off duty for at least 24 consecutive hours, with an additional period of 24 consecutive hours off duty in each period of 14 days for each individual member of the platoons, and not less than two weeks leave of absence annually with full pay for all employees of the fire department, is not invalid as violating the principle of local self-government in municipalities of this state.
4. Fire protection is a matter of concern to the people of the state generally, and when the Legislature enacts general laws to make more efficient the management of fire departments within the cities for the protection of persons and property against the hazards of fire, the cities of the state may be required within reasonable limits to provide funds for the purpose of carrying out such legislation.
APPEAL from the Court of Appeals of Hamilton county.
Section 17-1 a, General Code, was first enacted in 1920 (108 Ohio Laws, part 2, 1287). It provided that cities with fire departments, not using the eight-hour shift system, should divide their firemen into not less than two platoons, each platoon to be on duty for a period of not more than 24 hours and if on duty for 24 hours to be off duty for the next period of 24 hours. After the passage of this law, the city of Cincinnati put the law, popularly known as the double platoon law, into effect.
In 1939, the state Legislature amended Section 17-1 a, General Code, effective September 6, 1939 (118 Ohio Laws, 666), which amendment left the two platoon system in effect but provided further that cities having fire departments must provide an extra day off for firemen every two weeks in addition to the alternate days off under the original act. It also provided for a leave of absence of not less than two weeks annually with full pay for all employees of the fire department.
The city of Cincinnati took the position that under its charter it could either acquiesce in or disapprove of the law as amended; and that if council took no action, the statute would become effective, whereas the city could, by enacting its own ordinances, have them take precedence over the statute.
Consequently, upon the amendment of Section 17-1 a, General Code, in 1939, as above noted, the city council passed an ordinance known as Section 56-23 of its code of ordinances, reading as follows:
"Section 56-23. The fire chief shall divide the uniform force into platoons and shall not keep a platoon of the uniform force on duty more than twenty-four (24) consecutive hours, except in cases of extraordinary emergency, after which the platoon serving twenty-four (24) hours shall be allowed to remain off duty for twenty-four (24) consecutive hours.
"Section 2. Section 17-1 a, of the General Code of Ohio, as amended by Substitute House Bill No. 648, passed by the General Assembly of Ohio May 31, 1939, is hereby declared inoperative within the city of Cincinnati."
On March 7, 1940, the relator, George A. Strain, as Director of Industrial Relations of the state of Ohio, filed this action in mandamus in the Court of Appeals of Hamilton county to compel the respondent, B.J. Houston, as Chief of the Fire Department of the city of Cincinnati, to enforce the provisions of Section 17-1 a, General Code, as it related to the members of the fire department of that city.
The relator's petition, after setting out the official capacity of both relator and respondent, alleges that the city of Cincinnati has not adopted the eight-hour regulation for its fire department and has not so arranged and scheduled the hours of the members of its fire department so as to comply with Section 17-1 a, General Code, as amended, all of which is admitted by the answer. The petition further alleges that the law in question is mandatory in character and that the relator is charged by law with its enforcement. The respondent's answer denies these allegations.
In addition to these admissions and denials, the answer asserts four defenses to relator's petition: First, it alleges "that the establishment, financing and administration of a fire force to protect property within the city of Cincinnati is a matter of purely local concern to the people of said city," and that the enactment and attempted enforcement of Section 17-1 a, General Code, as amended, "constitute unlawful attempts on the part of state officials to exercise the powers of local self-government conferred on municipalities by Section 3 of Article XVIII of the Constitution of Ohio"; second, it alleges that the appropriations by the city of Cincinnati for fire protection for the year 1940 were insufficient to comply with the provisions of Section 17-1 a, General Code, and would require additional funds in the amount of $195,700, which the respondent was powerless to provide; third, it alleges that Section 17-1 a, General Code, violates Section 26 of Article II of the Constitution of Ohio which provides that "All laws, of a general nature, shall have a uniform operation throughout the state * * *," while the statute is limited in its application to cities only; and, fourth, it alleges that the amendment of Section 17-1 a, General Code, constitutes an arbitrary and invalid exercise of power because it imposes additional operating expenses upon cities without furnishing them the means of providing for such extra expenses.
The relator filed a general demurrer to the answer of the respondent which the court overruled. The court thereupon denied the writ of mandamus upon the ground that Section 17-1 a, General Code, is unconstitutional. There was an appeal to this court as a matter of right, since the case originated in the Court of Appeals and presents a question arising under the Constitution of this state. In passing, it may be stated that the relator claims that the judgment of the Court of Appeals of Hamilton county in this case is in conflict with the judgment pronounced upon the same question by the Court of Appeals of Cuyahoga county in the case of the City of Shaker Heights v. Merl M. Hand, as Chief of the Fire Department et al., which case is also in this court on appeal, being cause No. 28308.
Mr. Thomas J. Herbert, attorney general, and Mr. Crary Davis, for appellant. Mr. John D. Ellis, city solicitor, and Mr. Ed F. Alexander, for appellee.
The questions of law presented by this record are: (1) Is it the duty of the relator, as Director of the Department of Industrial Relations, to enforce the provisions of Section 17-1 a, General Code, and, if so, may he invoke the remedy of mandamus against the respondent for that purpose? (2) May the Legislature enact a general law "fixing and regulating the hours of labor" of firemen employed by cities, and providing "for the comfort, health, safety and general welfare" of such firemen, or are such provisions matters of local self-government, not subject to regulation or control by state legislation? (3) Is Section 17-1 a, General Code, as amended, unconstitutional and void because it is limited in its application to fire departments of cities only? (4) Is an act of the Legislature, if otherwise valid, unconstitutional and void because it imposes certain duties upon cities requiring the expenditure of additional funds, when the Legislature provides no additional funds for that purpose?
In April 1921, the Administrative Code was enacted (109 Ohio Laws, 105), by which there was created the Department of Industrial Relations to be administered by the Director of Industrial Relations (Section 154-3, General Code). By Section 154-45, General Code, it is provided that the "Department of Industrial Relations shall have all powers and perform all duties vested by law in the Industrial Commission of Ohio," with certain exceptions not important here. It reasonably appears from the law that the duty of enforcing the provisions of Section 17-1 a, General Code, relating to hours of labor and the comfort, health, safety and general welfare of city firemen, is vested in the Director of the Department of Industrial Relations. Consequently, he has authority to bring this action, and it is his duty to do so, if the law is within the scope of legislative power. State, ex rel. Downing, Pros. Atty., v. Powers, Chief of Div. of Securities, 125 Ohio St. 108, 180 N.E. 647.
mandamus will not lie against him as chief of the fire department of Cincinnati. Among these reasons, he claims that under the charter of the city of Cincinnati, he is subordinate to the director of safety and the city manager of the city, and that his acts are subject to their approval. He also claims that to comply with the state law would require a rearrangement of location of firemen or an increased number of firemen at increased expense, which are matters vested in the city council and entirely beyond his control. The answer to these claims is that under the law and the city charter, the chief is made responsible for the management and control of the firemen of the city. The statute in question speaks positively and mandatorily as to what he shall do in the premises, and to comply he does not need the approval of the director of safety or other officials since they, as well as he, are bound to carry out the specific requirements of the law. If such a defense would have validity, governmental officials could refuse to comply with lawful requirements on the ground that it was inconvenient or financially embarrassing to do so.
The Court of Appeals of Hamilton county in holding Section 17-1 a, General Code, invalid, bases its decision on the ground that this section is not a general law in the exercise of police powers to which local municipal ordinances on the same subject must yield; and that it is not a substantive law but an attempt to provide an administrative code to control the action of municipal authorities in purely administrative functions, and therefore in conflict with Sections 3 and 7 of Article XVIII of the Constitution, conferring upon municipalities local self-government and the right to adopt a charter for its exercise.
The crucial and paramount question presented here is whether the city of Cincinnati, having been granted and having accepted the privileges of charter or home-rule government under the Constitution, has immunity from legislative control relating to employment of fire-men in the fire department voluntarily maintained and operated by such city.
Section 1 of Article II of the Constitution provides that the legislative power of the state shall be vested in a General Assembly consisting of a Senate and House of Represenatives; and that except where authorized under the initiative and referendum, all legislative authority of the state must be exercised alone by the General Assembly.
Authority exists in the Legislature to diminish, regulate or resume the powers it has conferred on all municipal corporations, unless interdicted by the Constitution. This necessarily results from the fact that under the Constitution all legislative power of the people is granted to the Legislature subject to the initiative and referendum, unless such legislative power is expressly or by clear implication granted to municipalities or other governmental subdivisions as arms of state government. People v. Pinckney, 32 N.Y. 377. The constitutional grants of power to municipalities in this state are contained in Sections 3 and 7 of Article XVIII of the Constitution which are as follows:
"Sec. 3. Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." (Italics ours.)
"Sec. 7. Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all power of local self-government." (Italics ours.)
In this connection, attention must be given to the broad powers reserved under the Constitution to the Legislature of the state by Sections 34 and 37 of Article II, which are as follows:
"Sec. 34. Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the Constitution shall impair or limit this power."
"Sec. 37. Except in cases of extraordinary emergency, not to exceed eight hours shall constitute a day's work, and not to exceed forty-eight hours a week's work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract, or otherwise."
Thus, power is granted to municipal corporations to legislate in the interest of public peace and the protection of persons and property within their territorial limits, but such legislation must not conflict with state legislation on the same subject, and there is reserved to the Legislature power to direct the manner and method by which municipal corporations shall effectively carry out their functions having to do with the preservation of the peace and the protection of persons and property. Niehaus, Bldg. Inspector, v. State, ex rel. Board of Education of City of Dayton, 111 Ohio St. 47, 52, 53, 144 N.E. 433; State, ex rel. Ramey, v. Davis et al., County Commrs., 119 Ohio St. 596, 599, 165 N.E. 298. As was said by Judge Matthias of this court in the case of Schneiderman v. Sesanstein, 121 Ohio St. 80, 82, 167 N.E. 158, 64 A. L. R., 981, "The police power thus conferred by the Constitution cannot be denied municipalities by statute, but that power is restricted, in that such 'local police, sanitary and other similar regulations' must not, be 'in conflict with general laws.' Thus the legislative branch of the state government enacts laws to safeguard the peace, health, morals, and safety, and to protect the property of the people of the state, and these are the general laws referred to. They apply to all parts of the state alike. Municipalities may adopt and enforce local regulations covering the same subject so long and so far as the same are not in conflict with general laws." See, also, City of Fremont v. Keating, 96 Ohio St. 468, 118 N.E. 114.
On the other hand, matters which have to do with city management, the distribution of official function and responsibility, the improvement of the territory comprised within the limits of the corporation and its adaptation to the purposes of residence and business, are within the peculiar jurisdiction and control of local municipal government. 28 Ohio Jurisprudence, 228, Section 120.
Section 17-1 a, General Code, the validity of which is here drawn in question, regulates the hours of employment and the conditions under which firemen of cities shall work. The question before the court must necessarily be whether this is a matter of general public concern having implications which transcend municipal boundaries.
It is a matter of general knowledge that the ownership of property in a municipality is not wholly confined to its inhabitants but some of it is owned by nonresidents; that the ownership of shares in corporations owning the large business and manufacturing properties of the cities are widely held; that large numbers of people residing outside the municipalities are constantly going within their boundaries, entering places of business and places of abode, and being exposed to the hazards of disastrous fires; and that through the growth of urban populations, the boundary lines of separate corporations are often coincidental with each other with the result that the residents of one municipality are constantly exposed to fire hazards of contiguous municipalities. The protection of life and property from the hazards of fire, conserves the private as well as the public resources of the country and consequently is a matter of public welfare and concern.
Likewise, adequate fire protection calls for the employment of great numbers of men who are obliged to live under modes of life and conditions of employment which take them away from their homes for longer intervals of time than most employments, and which expose them to unusual dangers of life and limb. Likewise, the health of such employees is constantly placed in jeopardy by the incidents of their employment. These are considerations which call for the exercise of the police power in the interest of the public and the state. The Legislature is given large discretion in determining the measures which are necessary or appropriate to secure the public welfare. Statutes to promote such purposes are upheld, if possible, and it is only when the Legislature clearly transcends its powers that such statutes are stricken down.
There appears to be a distinct conflict of authority in the decided cases on this specific subject. In some states, notably Michigan, Kentucky and Montana, the courts hold that any attempted legislative control of the operation and management of a fire department by a municipal corporation is an illegal interference with the right of local self-government; but in the states of Indiana, Illinois, New York, Nebraska and Minnesota, legislation similar to that now under review has been upheld. State, ex rel. Schroeder, v. Morris, Mayor, 199 Ind. 78, 155 N.E. 198; People, ex rel. Moshier, v. City of Springfield, 370 Ill. 541, 19 N.E.2d 598; People v. Pinckney, supra; Benson v. Peterson, 180 Minn. 366, 230 N.W. 830.
In the first above-cited case, the Supreme Court of Indiana had before it the determination of the validity of legislation very similar to that here in question in a mandamus action to require the city officials of the city of New Albany to comply with a statute providing that in cities with a population exceeding 15,000, and having a regularly organized paid fire force, such fire force should be divided into two platoons, one for day service and one for night service. The statute was held not to violate the principle of local self-government, but to be a valid police regulation, in view of the performance of duties thereunder being left to local officers. The court in that case said:
"Appellees, by virtue of their respective official positions, are charged with certain statutory duties in the management and promulgation of laws pertaining to the corporate affairs and business welfare of the city. They are, therefore, within the purview of the statute at bar. While they represent the city of New Albany, they are nevertheless, to a limited extent, agents of the state for the purpose of administering all reasonable laws of a regulative character, as here shown, and not forbidden by the state or federal constitutions, and the laws and treaties passed and made pursuant thereto. The present law merely fixes a duty upon statutorily classified cities, and the performance of that duty is left to the local officers of each city. The state does not assume to take from the city of New Albany the management of its city fire department, or restrict its right of possession or control of its fire apparatus, or dictate the quantity, quality, or character of its fire-fighting tools and instruments, or whom it shall or shall not employ as firemen; nor does it assume to tell the city of New Albany that it shall maintain a fire department at all. It does, however, make it imperative on towns and cities in this state, that maintain a regularly organized paid fire department, * * * to adopt the platoon system. The act in question is constitutional."
The case of People, ex rel. Moshier, v. City of Springfield, supra, decided in 1939, considers many of the questions presented by the record in this case and the court fully sustains the validity of the provisions which are incorporated in the statute here under consideration. In issuing a writ of mandamus to the city of Springfield and its officers to enforce a minimum firemen's salary statute, the court sustained the validity of the statute and held that since the protection of life and property from fire conserves the public resources, it becomes a matter not only of local concern but one in which the state itself has a vital interest. See Van Gilder. Admx., v. City of Madison, 222 Wis. 58, 267 N.W. 25, 268 N.W. 108, 105 A. L. R., 244.
When the policy of the state of Ohio relating to fire protection and to the welfare of firemen, as expressed in state legislation and in court decisions, is taken into consideration, the validity of the statute in question must be sustained. The state, through legislative enactment, has established a state-wide fire protective policy in providing an exhaustive state building code, to protect against fire hazards; and a department, of workshops and factories to inspect buildings and eliminate fire hazards by ordering alterations and preventing the use of buildings until compliance with lawful orders for alterations. The state has established a tenure subject to removal for cause for the members of the fire departments of villages of the state (Section 4389, General Code), and a civil service status for firemen in cities ("Sections 4378, 4380, General Code), and a state-wide system of firemen's pensions, all of which are considered matters of state-wide concern and subject to state legislation. Thompson v. City of Marion, 134 Ohio St. 122, 16 N.E.2d 208.
The respondent claims that the statute in question is unconstitutional because it applies only to cities and therefore does not have uniform operation throughout the state. This claim is untenable. The Constitution recognizes the classifications of cities and villages, and many laws applicable to one class of municipalities are not made applicable to the others because of the difference in size and consequent public needs. The Constitution permits reasonable classifications and requires only that the laws have uniform operation upon all subjects within a class thus reasonably established. Dillon v. City of Cleveland, 117 Ohio St. 258, 158 N.E. 606; State, ex rel. Village of Cuyahoga Heights, v. Zangerle, Aud., 103 Ohio St. 566, 573, 134 N.E. 686.
The respondent also claims the law in question to be invalid because it requires the city of Cincinnati to incur financial burdens but provides no method or plan for meeting them. It is no defense in an action for mandamus, which, if granted, would require a city to incur expense in carrying out some public duty, to say that compliance would leave the city without sufficient funds for other purposes. Fire protection is a matter of concern to the people of the state generally, and when the Legislature enacts general laws to make more efficient the management of fire departments within the cities for the protection of persons and property against the hazards of fire, the cities of the state may be required within reasonable limits to provide funds for the purpose of carrying out such legislation. Village of Kent v. United States, ex rel. Dana, 113 F., 232 (C.C.A. 6); State, ex rel. Village of Cuyahoga Heights, v. Zangerle, Aud., supra; State Board of Health v. City of Greenville, 86 Ohio St. 1, 28, 98 N.E. 1019; State, ex rel. Southard, Dir., v. City of Van Wert, 126 Ohio St. 78, 184 N.E. 12.
Clearly, before the adoption of the constitutional amendments of 1912, giving municipalities of this state the right to adopt a charter and to operate under a home-rule form of government, the Legislature had the power to adopt legislation such as is now under consideration which would be binding upon every municipality of the state. City of Cleveland v. Payne, 72 Ohio St. 347, 74 N.E. 177. In the opinion of this court, Sections 3 and 7 of Article XVIII of the Constitution do not take away that power. City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210; Schneiderman v. Sesanstein, supra; Schwartz, Admr., v. Badila, 133 Ohio St. 441, 14 N.E.2d 609; Thompson v. City of Marion, supra; State, ex rel. Moewer, v. Underwood et al., Civil Service Commission, 137 Ohio St. 1, 27 N.E.2d 773.
The judgment of the Court of Appeals is reversed and the writ allowed.
Judgment reversed and writ allowed.
WEYGANDT, C.J., WILLIAMS, ZIMMERMAN and BETTMAN, JJ., concur.
TURNER, J., dissents.
MATTHIAS, J., not participating.
Section 3 of Article XVIII of the Constitution of Ohio provides:
"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
It is to be noted that the authority conferred upon municipalities is to exercise all powers of local self-government. At least until such time as the state by general laws shall take over the fire departments of the state, the employment, discharge, organization, pay, etc., of firemen remain matters of local self-government.
Therefore, the judgment of the Court of Appeals should be affirmed.