In Cincinnati v. Gamble (1941), 138 Ohio St. 220, 34 N.E.2d 226, the court held that in general, matters relating to police and fire protection are of state-wide concern and under the control of state sovereignty, and therefore the state police and fireman law prevails over a municipal ordinance on the subject.Summary of this case from State, ex rel. Canada v. Phillips
Nos. 28232, 28233 and 28234
Decided May 7, 1941.
Constitutional law — Municipal corporations — Local self-government and police, sanitary and other similar regulations — Sections 3 and 7, Article XVIII, Constitution — Local self-government powers subject to authority of General Assembly, how — Section 13, Article XVIII, Constitution — State supreme in matters of state-wide concern — Police and fire protection under control of state sovereignty — Establishment of police and firemen's pension funds governed by statute — Sections 4600 et seq. and 4616 et seq., General Code.
1. By virtue of Sections 3 and 7 of Article XVIII of the Constitution, a municipality, irrespective of whether it has adopted a charter, has powers of local self-government and may adopt and enforce within its limits such local police, sanitary and other similar regulations as are not in conflict with general law.
2. A municipality's powers of local self-government are, under Section 13, Article XVIII of the Constitution, subject to the authority of the General Assembly (a) to pass laws limiting the power of municipalities to levy taxes and incur debts for local purposes and (b) to require reports as to financial conditions and transactions and provide for examination of vouchers, books and accounts of municipal authorities or of public undertakings conducted by such authorities.
3. In matters of state-wide concern the state is supreme over its municipalities and may in the exercise of its sovereignty impose duties and responsibilities upon them as arms or agencies of the state.
4. In general, matters relating to police and fire protection are of state-wide concern and under the control of state sovereignty.
5. The establishment of retirement allowances, pensions and death benefits for firemen and policemen is governed by Sections 4600 et seq. and 4616 et seq., General Code, respectively.
APPEAL from the Court of Appeals of Hamilton county.
These three actions were filed originally on the 8th day of February 1939, in the Court of Common Pleas of Hamilton county, Ohio, and all were submitted and heard together. Each was disposed of in the trial court on a general demurrer to the answer. The appeals likewise were submitted and heard together in the Court of Appeals and in this court.
Cause No. 28232 is an action in injunction in which the plaintiff seeks a restraining order and mandatory injunction to terminate the application of the retirement system of the city of Cincinnati to policemen and firemen, and to restore to the general fund of the city and to policemen and firemen amounts previously contributed to such retirement fund.
The second amended petition names as defendants, the city auditor, the city treasurer, the chief of police, the chief of the fire department and the members of the board of trustees of the retirement system. The following facts appear in the allegations of the amended petition together with references to certain statutes:
On April 23, 1902, the General Assembly passed House Bill No. 934 (95 Ohio Laws, 223), which authorized the levy of taxes in municipalities to provide for firemen's and policemen's pension or relief funds and to create boards of trustees for the administration of the funds. On May 12, 1902, the council of the city of Cincinnati passed two separate ordinances declaring, pursuant to Sections 1 (a) and 2 (a) of such House Bill No. 934 (now Sections 4600 and 4616, General Code), the necessity for establishing a firemen's pension fund and a police relief fund, respectively. So there have been, and still continue to be in existence, in the city of Cincinnati, legally established firemen's pension and police relief funds established in accordance with such House Bill No. 934.
After the commencement of the action, Section 4600, General Code, was amended (118 Ohio Laws, 283) by providing that in all municipalities having fire departments supported in whole or in part at public expense and employing two or more full time regular members, there shall be established and maintained a firemen's relief and pension fund, and by providing further for the appointment of a board of trustees of such fund. In this same bill Section 4614, General Code, was also amended by providing that the newly created board of trustees should be successor to the existing board of trustees of the firemen's pension fund.
Since the commencement of this action, Sections 4609 and 4625 have been amended so as to provide in substance that firemen and policemen shall contribute two per cent of their salaries to the firemen's relief and pension fund and to the police relief fund respectively.
On June 24, 1931, the council of the city of Cincinnati passed an ordinance to establish a retirement system for certain employees of the city. Section 20-42, paragraph 1- a provides:
"All persons who become employees of the city on and after the first day of August, 1931, shall become members of the retirement system and shall receive no pension or retirement allowance from any other pension or retirement system supported wholly or in part by the city, nor shall they be required to make contributions to any other pension or retirement system of the city."
On the same date the council also passed certain other ordinances which contained these provisions:
Section 20-12, reads: "Any person appointed to a position on the police force on and after August 1, 1931, shall be ineligible to receive any portion of the fund administered by the Board of Trustees of the Police Relief Fund as constituted by Article IV, Section 8, of the Administrative Code."
Section 20-32, provides: "Any person appointed to a position on the fire force on and after August 1, 1931, shall be ineligible to receive any portion of the fund administered by the Board of Trustees of the Firemen's Pension Fund as constituted by Article IV, Section 15, of the Administrative Code."
The amended petition continues:
"Plaintiff says that notwithstanding the existence and continuance of the legally constituted police relief and firemen's relief and pension funds of the city of Cincinnati as provided by the aforesaid acts of the General Assembly of Ohio * * * the defendants have required all policemen and firemen employed by the city and entering its service on and after August 1, 1931, to become members of the said retirement system of said city of Cincinnati, and have deducted or caused to be deducted and placed in funds under the control of the defendants varying sums of money from the compensation of such police and firemen. Plaintiff further says that under the alleged authority of the provisions of the aforesaid ordinances, said board of trustees of the retirement system has exercised and still exercises control, management and administration of the funds provided for in said ordinances for the members of the police and fire departments entering said service since August 1, 1931; that said board authorizes two persons to sign vouchers drawn on said fund; that it authorizes withdrawals from said funds by resolution adopted by it; that said board certifies the rates of contributions payable by members of the police and fire departments of said city who joined said respective forces since August 1, 1931; * * * and that it certifies the amount to be deducted from the salary of each such policeman and fireman on account of said retirement system.
"That said defendant C.O. Sherrill as such city manager has submitted and still submits to said retirement board statements containing information as required by said ordinances, with reference to police and firemen joining said service since August 1, 1931.
"That said Stephen W. McGrath as city treasurer of said city has deducted and continues to deduct from the pay roll the portion of the compensation which each such policeman or fireman joining said service since August 1, 1931, is required by said ordinance to contribute to said retirement system."
The second amended petition further states that the several defendants will continue to enforce this provision of the ordinances governing the retirement system with respect to firemen and policemen entering the city service since August 1, 1931.
The answer admits these allegations of the second amended petition and sets up two affirmative defenses. In the first of these it is alleged that the state systems for the firemen's relief and pension fund and the police relief fund are not sound and adequate, allembracing systems of retirement allowances, pension provisions and death benefits; that the purpose of the system adopted by ordinance in 1931 was to provide "assured retirement allowances, pensions and death benefits for all city employees in certain classes, including firemen and policemen thereafter employed by the city, based on sound actuarial methods of financing and distribution"; and that it is no longer necessary to use the state retirement system for firemen and policemen appointed since August 1, 1931.
In the second affirmative defense Section 3, Article XVIII of the Constitution, is set out and the claim made that the ordinances are within the home-rule powers granted to municipalities by the Constitution.
Causes Nos. 28233 and 28234 are proceedings in mandamus by which the relator seeks to have city officials carry out the provisions of the state statutes regarding the choosing of members of the board of trustees of the firemen's relief and pension fund and of the board of trustees of the police relief fund of the city of Cincinnati.
In each, the answer specifically pleads that the city of Cincinnati has adopted and amended a charter under the provisions of the Constitution which give municipalities that right; that under authority of provisions in the charter the city adopted and amended an administrative code containing provisions for the election of the board of trustees of the firemen's relief and pension funds and of the board of trustees of the police relief fund of the city of Cincinnati; and that since about April 1927 the trustees of such funds have been elected in accordance with the provisions of the administrative code of the city of Cincinnati.
In each of these three cases a general demurrer to the answer was sustained. In the injunction case the defendants not desiring to plead further, an injunction was granted. In the mandamus cases the respondents likewise not desiring to plead further, writs were granted. After the judgments had been reversed by the Court of Appeals, the causes were appealed to this court as of right.
Mr. John D. Ellis, city solicitor, Mr. Henry M. Bruestle and Mr. Wm. Jerome Kuertz, for appellants.
Mr. Ed F. Alexander, for appellees.
These three causes present the same question. The city of Cincinnati, having in 1902 established a firemen's pension fund and police relief fund under statutory provisions which are now, in amended form, Sections 4600 and 4616, General Code, respectively, has contended that it has the right under the present provisions of the Constitution, relating to municipalities, to establish its own retirement system for firemen and policemen. Acting accordingly by ordinance passed in 1931, the city established a general retirement system, including therein provisions for retirement allowances, pension and death benefits for firemen and policemen entering the city service since August 1, 1931. The then existing system established under state law was allowed to remain in effect but only as to firemen and policemen who had entered the city service on or before that date.
Broadly stated, the sole question is: May a municipality establish its own system of retirement for firemen and policemen contrary to state statutes governing the same subject?
One of the chief aims of municipal government has always been the exercise of those local governmental powers which are peculiar to the municipality. According to the great weight of authority municipal powers of local self-government, in the absence of constitutional provisions, are not beyond the control of the legislative branch of state government. 1 Dillon on Municipal Corporations (5 Ed.), 140, Section 90. The power of the municipality to act, however, is not confined solely to matters of local interest and importance. In addition, the state is wont to impose upon the municipal subdivision certain duties with respect to matters of general concern to the entire state. Thus the municipality acts in a dual capacity. On the one hand the town or city acts for itself; on the other, for the state. For authorities see treatise by Juan D. Miranda, 43 Corpus Juris, Municipal Corporations, Sections 4, 5, 6 and 178.
In Ohio there are constitutional provisions regulating municipal power. These are found in Article XVIII, and all of them were adopted September 3, 1912. Being in pari materia they must be construed together. Such powers as are enumerated therein can not of course be taken away by the Legislature. These controlling provisions confer upon the municipalities "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." However, the General Assembly may limit the power of municipalities to levy taxes and incur debts for local purposes. Section 13, Article XVIII. In addition Section 7 gives to any municipality power to "frame and adopt or amend a charter for its government." The constitutional powers of a non-charter city are exactly the same as those of a charter city. The only difference between the two is that one operates under charter and the other does not. Obviously a municipality has no right or authority to put into its charter or to enact by ordinance any local regulation, police, sanitary or other, that conflicts with the general laws of the state or interferes in any way with the exercise of governmental power by the state in matters of state-wide concern. In other words, the dual capacity of the municipality continues notwithstanding such constitutional provisions. As to one function, a city or village exercises the powers of local self-government within imposed limitations and, as to the other, acts as an arm or agency of the sovereign state.
This duality is established doctrine in this jurisdiction. No authority need be cited on the proposition of municipal power in matters of local concern for the Constitution itself is ample in that behalf. As to the other power — the power of the municipality in acting as an instrumentality of the state — it was stated in Billings v. Cleveland Ry. Co., 92 Ohio St. 478, at 484, 111 N.E. 155, decided in 1915: "It must not be overlooked that the municipal government, as well after a charter has been adopted as before, is an arm or agency — a part — of the state. * * * The charter [in a charter city] becomes the organic law of the municipality so far as such local powers are concerned. But the authority of the state is supreme over the municipality and its citizens as to every matter and every relationship not embraced within the field of local self-government." See, also, Niehaus, Bldg. Inspector, v. State, ex rel. Bd. of Edn., 111. Ohio St., 47, 144 N.E. 433; State, ex rel. Ellis, City Solicitor, v. Blakemore, Clerk, 116 Ohio St. 650, at 659, 157 N.E. 330; State, ex rel. Ramey, v. Davis et al., County Commrs., 119 Ohio St. 596, 165 N.E. 298; State, ex rel. Brickell, v. Frank, County Treas., 129 Ohio St. 604, 196 N.E. 416.
It is apparent from an examination of these authorities that the municipality may not take action by charter or ordinance contrary to statute in matters of state-wide concern for these remain essentially the prerogatives of state sovereignty.
The next query relates especially to police and fire protection, as objects of state concern. Although there is a contrariety of opinion on the proposition, the weight of authority apparently supports the view that both fare and police matters are subject to state control even as to charter cities whose powers of local self-government are derived from constitutional provisions. Van Gilder, Admx., v. City of Madison, 222 Wis. 58, 267 N.W. 25, 105 A. L. R., 244; Luhrs v. City of Phoenix, 52 Ariz. 438, 83 P.2d 283; State, ex rel. Jost, v. Reynolds, 265 Mo., 51, 175 S.W. 591.
There is, however, no necessity to look to decisions in other states for the question is no longer an open one in Ohio. In the case of City of Wooster v. Arbenz, 116 Ohio St. 281, at 284, 156 N.E. 210, 52 A. L. R., 518, this language was used: "In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself."
In Thompson v. City of Marion, 134 Ohio St. 122, 16 N.E.2d 208, this court had under consideration the same sections that are involved in the case at bar, namely, Sections 4600 and 4616, General Code. It was there held that these sections govern the establishment, maintenance and administration of the relief and pension funds for city firemen and police respectively. The city of Marion adopted ordinances by which funds were created in pursuance of the sections of the statutes referred to, and thereupon an injunction to prevent the abandonment of the system of the police and firemen pensions, and particularly the use of the pension funds for other purposes, was sustained.
In the instant case it appears that the city of Cincinnati, at least in part, has actually done what this court has held the city of Marion could not do. The city of Cincinnati has abandoned in a measure the system adopted under state law in that it has provided by ordinance that policemen and firemen entering service after a specified date be included in the city's retirement system and excluded from the system existing under state law. Such course is contrary to the ruling in the Marion case.
This court, in keeping with its prior decisions, has recently held that the state by legislative enactment may validly withdraw from cities health powers previously granted and transfer them to newly created health districts. By this process they become health agencies of the state government and their employees are governed by state law, even with respect to the classified civil service. State, ex rel. Mowrer, v. Underwood, 137 Ohio St. 1, 27 N.E.2d 773. Moreover this day it has been held that the fire department of a city is a matter of state-wide concern; that the Legislature has power to establish the platoon system in city fire departments; and that such action is not violative of the principle of local self-government. State, ex rel. Strain, Dir., v. Houston, ante, 203.
There is no hesitation in stating that in this jurisdiction police, fire and health protection are within the sovereign power of the state and with respect thereto, municipalities, whether governed by charter or not, are arms or agencies of state sovereignty. It has been asserted, however, that all has been changed by Section 2, Article XVIII of the Ohio Constitution, adopted September 3, 1912, which reads: "General laws shall be passed to provide for the incorporation and government of cities and villages; and additional laws may also be passed for the government of municipalities adopting the same; but no such additional law shall become operative in any municipality until it shall have been submitted to the electors thereof, and affirmed by a majority of those voting thereon, under regulations to be established by law."
This section does not take from Sections 3 and 7 of the same Article a jot or tittle of their meaning. Section 2 simply means that general laws may be passed for the incorporation and government of municipalities, but does not alter powers specifically granted to them by organic law. The "additional laws" referred to are those which may be enacted by the Legislature to provide plans for charters which may be submitted to the electors of the municipality and affirmed by a majority under regulations to be established by law. Such plans have been provided for in Section 3515-1 et seq., General Code. On the other hand there is nothing in these sections which prevents a municipality from adopting its own charter regardless of the form prescribed by the Legislature.
Why has this court coupled together police, fire and health as objects of interest and moment to the whole state? Reflection reveals that there are certain basic reasons that impel such a course; and in conclusion it is well to state them briefly.
The state, considered in relation to its subdivisions, is the imperium and as such by its very nature has state control in state affairs. Since the municipality is imperium in imperio only in the exercise of powers conferred upon it by the state Constitution, it must in all other respects be subordinate to state authority. If fire, police and health departments be deemed purely matters of local self-government, they could be abolished and the state would be unable to step in. Obviously the abolishment of any or all of them would affect state interests. So would even impairment. Indeed, police and fire protection and health preservation are essential to the administration of state government in such a way as to accomplish vital purposes expressed in its organic law. Kansas City v. J. I. Case Threshing Machine Co., 337 Mo., 913, 87 S.W.2d 195. The Constitution guarantees life, liberty and property and imposes upon the state the duty to protect and defend these rights. That duty does not end at city limits. Control of deadly, contagious diseases may often require uniform state action; prevention of fire may be ineffective without unified effort reaching into urban, suburban and rural sections; and the policing of the state might well be inadequate to public need if done by a state constabulary with power to act only in areas outside municipalities. The state must remain sovereign in all such affairs else its authorities cannot protect rights assured to its citizens by its Constitution. These are fundamental reasons why police, fire and health undertakings are essentially attributes of state sovereignty and matters of state-wide concern.
In each case the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
WEYGANDT, C.J., HART, 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 police and fire departments of the state, the employees of such departments are municipal employees, and their employment, discharge, organization, pay, pensions, etc., remain matters of local self-government.
Therefore, the judgment of the Court of Appeals should be affirmed.