State v. Wall ( 1890 )

By the Court.

After a careful consideration of the statutes regulating the organization of municipal corporations in this state, (Title 12, Division 2,) we are convinced that Columbus is a city of the first grade, second class. The present method of grading as well as classifying such corporations, was introduced by the revision of 1880. Prior to that time they had been classified as cities of the first and second class and villages ; Columbus being a city of the second class. Cities and villages are classified and graded by sections 1546,1547,1548. and 1549, Revised Statutes of 1880. These sections fixed the class and grade of each city then existing; but it was provided in section 1548 that “ existing corporations, organized as cities of the second class, shall remain such until they become cities of the first class; ” and their grades were then fixed as provided in that section. So that under the revision of 1880, Columbus being at the time an organized city .of the second class, remained such until it should become a city of the first class. Hence it is evident that a city of the second class does not become a city of the first class simply by an increase of population; for, if this were so, then the provision that existing cities of this class should remain such until they become cities of the first class, would be useless. Something more is required, and this is found in the provisions contained in chapters 4 and 6 of the above title and division of the Revised Statutes. • From these chapters it appears that the population of a city of the second class, whether ascertained by the federal census or by a census taken by the municipality, simply furnishes the ground for authority in such city to become a city of the first class by complying with their provisions. And unless such steps are taken, a city of the second class remains such under the provisions of section 1548, irrespective of the number of its population. It is not claimed that any such steps have been taken, and Columbus therefore, remains a city of the second class, and necessarily, a city of the first grade in that class; and will so remain until the requisite steps have been taken to advance it to a city of the first class.

Grave doubts may well be entertained as to the constitutionality of this method of classifying cities for the purpose of general legislation. But it has received the sanction of this court in repeated decisions heretofore made; and in view of this fact, and the rule that forbids a court to declare a law enacted by the legislature as unconstitutional, unless clearly convinced that it is so, we do not feel warranted in doing so in this instance.

All the other questions raised in the case, have, as we think, been fully determined in favor of the validity of the law, by the previous decisions of this court.

Writ refused and petition dismissed.