Armbruster v. City of Middletown

While the application for rehearing sets forth one ground, other than those based on State, ex rel. Arey, v. Sherrill, CityManager, 142 Ohio St. 574, 53 N.E.2d 501, upon which the plaintiff conceived he was entitled to a rehearing, the application was granted solely because it was fairly debatable whether that case did not require a conclusion contrary to that announced in this case. Suffice it to say as to the other ground that no new reason or authority has been presented and we adhere to the conclusion reached for the reasons set forth in our opinion. We shall confine this opinion to a consideration of the scope of the decision in the Arey case and the effect of its application to the facts of this case.

In the Arey case there was invoked the original jurisdiction in prohibition of the Supreme Court, to restrain the city manager of the city of Cincinnati from an alleged usurpation of power to hear and adjudge charges against a police officer of that city. The existence of the office of city manager was never challenged. The extent of his jurisdiction was the sole issue. The case was heard on the pleadings, in which it was alleged and admitted that there was an existing Cincinnati municipal government; that there was an office called city manager; that the respondent occupied that office; that there was a department of public safety administered by a director of public safety; and that the city manager was assuming to hear and determine the charges preferred against the relator by the chief of police.

On that record, the existence of the various offices was not an issue. The existence of the office of city manager being admitted, the question was whether the respondent, as the incumbent of the office and under color thereof, was assuming to exercise an authority judicial in nature not lawfully attached to the office.

In contrast to that case in which the authority of the city manager was challenged, in limine, by a direct proceeding in prohibition, the plaintiff in this case submitted without protest to the jurisdiction of the city commission of the city of Middletown to hear the charges preferred against him, then appealed to the municipal civil service commission, and then to the Common Pleas Court. Only after a decision adverse to him by this court, on application for a rehearing, did he raise the issue of the jurisdiction of the city commission of Middletown and its civil service commission.

There is nothing in the majority or concurring opinion of the court in the Arey case that can be construed as showing an intent to strike down the entire municipal government, because the people had attached a power to one office thereof, which, in view of a conflict with a state law, could not, under Sections 3 and 7 of Article XVIII of the Constitution, be exercised by the incumbent, so long as the state law continued unrepealed. This is manifest from the entire tenor of the opinion and such a wide scope is excluded by the language of the sixth paragraph of the syllabus, which reads as follows:

"Where a charter of a municipality and an administrative code enacted under authority thereof grant to a municipal officer, called a city manager, power to appoint, dismiss, suspend and discipline all officers in the administrative service (which service includes members of the police department), such provisions in the charter and administrative code cannot prevail as against the provisions of the General Code; and a police officer, suspended for the claimed violation of certain rules of the police department, has a right to insist that the director of public safety inquire into the cause of such suspension and render judgment thereon regardless of such provision in the city charter or administrative code."

To assume that the Supreme Court entertained such a devastating purpose would attribute to it, an intent to overrule, without mention, a long line of prior decisions sustaining de facto officers against collateral attack.

If we take judicial notice of the entire framework of the municipal government, as we must do in order to conclude that this question is presented at all, we find that the people of Middletown have lived under this charter for more than thirty years and the state has never challenged its right during all of that time and, presumably, is satisfied to permit it to continue. Under such circumstances, has a private citizen, asserting a personal right and not assuming to act for the public, the capacity to question the de facto authority of the officers created by the people originally and acquiesced in for so many years? We think the Ohio authorities are clear that he has no such power.

Under the Constitution of 1802 there was no requirement that general laws should have a uniform operation throughout the state. There was no provision as to the manner of creating corporations or of conferring corporate powers. As a result, innumerable special acts granting corporate charters and conferring corporate power, and acts having only local application, were passed. The confusion thus created was regarded as a great evil and was one of the chief reasons for calling the convention of 1851, in which it was provided that no special act conferring corporate power should be passed; that corporations should be organized under general laws, subject to be repealed, altered, or amended at the pleasure of the Legislature; and that all laws of a general nature should have a uniform operation throughout the state.

Notwithstanding these sweeping provisions, the General Assembly, yielding to the insistence of the populous areas for local self-government, almost immediately devised a method of classification of municipalities, which it was hoped conformed to the Constitution, and by which the demand of specific localities could be satisfied. This classification was followed by laws, general in terms, applicable to all corporations of a given class. As time went on and the demands for special powers arose the classification statute was amended by increasing the divisions, so that by 1900 it was entirely possible to confer corporate power upon a single municipality, and it became the fashion to do so as to the more populous ones.

This method of constitutional evasion was never universally accepted. As was said by Judge Shauck, in State, ex rel. Knisely, v. Jones, 66 Ohio St. 453, 484, 64 N.E. 424, 90 Am. St. Rep., 592:

"That there has long been classification of the municipalities of the state is true. It is also true that while most of the acts conferring corporate powers upon separate municipalities by a classified description, instead of by name, have been passed without contest as to their validity, such classification was reluctantly held by this court to be permissible."

And while the general statute had been reluctantly acquiesced in, or at least, a condemnatory decision avoided, the court had declared specific statutes, predicated upon the classification, to be unconstitutional. Costello v. Village of Wyoming, 49 Ohio St. 202, 30 N.E. 613; City of Cincinnati v. Steinkamp, Trustee,54 Ohio St. 284, 43 N.E. 490.

Encouraged by the state of the decisions as to the constitutionality of such statutes, the defendant in State v.Gardner, 54 Ohio St. 24, 42 N.E. 999, 31 L.R.A., 660, raised the constitutional issue as a defense to an indictment for offering a bribe to a commissioner of the city of Akron, a municipal corporation organized under a statute of the type later declared unconstitutional. He was discharged and, on proceedings in error, the Supreme Court sustained the exceptions of the state, on the ground that the constitutionality of an office could not be thus raised, collaterally. The subject was considered at great length. The conclusion is stated at page 33 of the opinion, as follows:

"We think that principle of public policy, declared by the English courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English judiciary. We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called `de facto officers.' * * *

"Courts in the practical administration of justice should regard the substance of things and deal with conditions as they actually exist. Here are grave and important official acts actually performed by virtue of an office, created under the provisions of a statute regularly enacted by that branch of the government to which the power to make law has been delegated by the Constitution; there is a clearly established legal presumption of its validity. The public in its organized capacity as well as private citizens has acquiesced in and submitted to their authority."

What was said in that case is applicable with greater force to the facts in this case, in which the people have acted under clear constitutional authority. Only that part of the corporate structure created by them which comes into conflict with statutes can not be given effect, and even as to that part it remains capable of operation upon the removal of the statutory impediment.

The Supreme Court finally, in proceedings by the state inState, ex rel. Knisely, v. Jones, supra, and State, ex rel. Atty.Genl., v. Beacom, 66 Ohio St. 491, 64 N.E. 427, 90 Am. St. Rep., 599, denounced as unconstitutional the conferring of corporate power based on classification. In the latter case it did not treat the existing offices based on the invalid conferring of power, as nonexisting. On the contrary, it suspended execution of its judgment for more than three months, so that the incumbents of such offices could continue to function until the Legislature could convene and properly remedy the situation. And the de facto officers continued to act under the new law passed and their acts both before and after were never questioned.

In 28 Ohio Jurisprudence, 47, Section 16, it is said: "The doctrine of the de facto existence of corporations is applicable to municipal as well as to private corporations." See, also, 32 Ohio Jurisprudence, 1084, Section 230 et seq.

In City of Albuquerque v. Water Supply Co., 24 N.M. 368,174 P. 217, 5 A.L.R., 519, it was sought to invalidate the acts of officers of a municipality organized under an alleged unconstitutional statute, by the application of the aphorism, that there cannot be a de facto officer without a de jure office. The court rejected the contention, and, after an exhaustive discussion, held as stated in the syllabus:

"A municipal corporation, created under an unconstitutional charter, is a de facto corporation, and its officers are de facto officers. The existence of the corporation, and its right to make contracts and transact business as such corporation, cannot be raised collaterally. The existence of such municipality can only be questioned by the state in a direct proceeding instituted by the Attorney General for that purpose, and until the question is thus raised, and an adjudication had, ousting the corporation from exercise of the franchise, all acts done and contracts made by the officers of such a de facto municipality are as valid and binding upon it and the property within its limits as though such officers were de jure officers of a de jure corporation."

Much of the doubt and confusion on this subject has resulted from the sweeping language in the opinion in Norton v. ShelbyCounty, 118 U.S. 425, 30 L. Ed., 178, 6 S. Ct., 1121. In refusing to follow it to its coldly logical conclusion, the Supreme Court, in Chicot County Drainage District v. Baxter StateBank, 308 U.S. 371, 374, 84 L. Ed., 329, 60 S. Ct., 317, said:

"The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, I. L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination."

Our conclusion is that the city of Middletown has a de jure corporate existence with authority to act through its officers in all respects, except where there is a conflict with existing statutes; that it has had a de facto government in all respects in accordance with its charter since its adoption in 1913; and that the de jure existence of the corporation, its offices and its officers can be determined only in a direct proceeding by the state, and are not an issue in an action involving private rights, as in this case. We find nothing in the Arey case that militates against this conclusion.

For these reasons, we adhere to our conclusion previously announced.

ROSS, P.J., and HILDEBRANT, J., concur.