Grover Hill v. McClure.

the decision in the same case, Zanesville v. Telephone & Tel. Co. 63 Ohio St. 442 [59 N. E. Rep. 109], our Supreme Court went to greater lengths, than the courts of most states, for it there held that Lan. R. L. 5587 (R. S. 3461), whereby a probate court is authorized to direct in what manner the telephone company's lines shall be constructed when the municipal authorities and the company failed to agree, is constitutional and does not confer on the probate court legislative authority. The court say, page 84, "And this fact, alone, of conferring on a judicial tribunal in the first instance the power to act in a given matter, is of controlling importance in giving judicial character to the nature of the power. though that is not necessarily a conclusive test, for if it were, the existence of a statute would establish its validity; but it is decisive, in that respect, unless it is reasonably certain that the power belongs exclusively to the legislative or executive department;" and the court, on page 84 of the opinion quotes with apparent approval, a statement of Selden, J., in Cooper, In matter of, 22 N. Y. 67, 84, as follows:

"The principle obviously is, that where any power is conferred upon a court of justice, to be exercised by it as a court, in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the power. The legislature, by conferring any particular power upon a court, virtually declares that it considers it a power which may be most appropriately exercised under the modes and forms of judicial proceeding."

Were it not for the deference due to the Supreme Court I, speaking only for myself, would not be willing to go to this extreme. The legislature is by no means infallible on questions of law, and its conclusions as to constitutionality are not usually considered final by courts. And I can see no reason for holding that because the power conferred by the legislature is conferred upon a court, it is thereby ipso facto made a judicial power. Yet such seems to be the rule as laid down by the Supreme Court of this state, with but a hint at a possible exception. We may safely, however, base our judgment on other grounds-those previously suggested.

Metcalf v. State, 49 Ohio St. 586, 588 [31 N. E. Rep. 1076], is not in point, for it declares the general principle merely that, "The power to detach territory from a municipal corporation is in its nature legislative, rather than executive or judicial." But while this is true as a general proposition, it does not preclude the possibility of a question of fact arising as to whether territory should be detached, or whether private rights are involved. It does not preclude the legislature from providing legally and constitutionally for the submission of such ques

Paulding County.

tions to the court, nor preclude a legal trial by the court, of such question of fact, or a decree on the facts as found. And even where the rule that the legislature may not delegate its powers is most strongly held, it is subject to numerous exceptions. In Sutherland, Stat. Constr. (2 ed.) Sec. 88, "The true distinction," says this author, "is between the delegation of power to make the law which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

But objection is also made to the statute on the ground that it violates public policy. This objection is not well taken. "Statutes cannot be declared invalid on the ground that they are unwise, unjust, unreasonable or immoral, or because opposed to public policy, or the spirit of the constitution; unless the statute violates some expressed provision of the constitution, it must be held to be valid." Sutherland, Stat. Constr. Sec. 85; Probasco v. Raine, 50 Ohio St. 378-390 [34 N. E. Rep. 536].

But it is further claimed that this statute under discussion takes away the power of local self-government, existing prior to the adoption of the constitution, and preserved by that constitution, and that for this reason the statute is unconstitutional.

It is difficult to see in what respect the power of local self-government is interfered with by this statute. True, the question as to whether specific territory shall or shall not remain within the corporate limits of the village, is not left to the determination of the inhabitants thereof, but that is not essential to our system of local self-government. Repeatedly in our state and in other states have small villages been absorbed by large cities, without their consent-even against their violent protest. But such acts, when taken in accordance with the forms prescribed by law, have been upheld by the courts. I need only cite the case of State v. Cincinnati, 52 Ohio St. 419 [40 N. E. Rep. 508; 27 L. R. A. 737]. This was apparently a most flagrant violation of local selfgovernment, yet our courts upheld it.

It is now universally held that the people have transferred to the legislature the right to provide the method by which such questions shall be determined, and having so transferred their power, they cannot retain it in themselves.

But it is said that because that power has been entrusted to the legislature, it cannot be delegated by the legislature to the court.

It is admitted in argument that the legislature may delegate to municipal councils, to boards of county commissioners, to township trustees, these powers of local self-government, and in fact, our system

Grover Hill v. McClure.

of government admittedly requires such delegation. But it is claimed that legislative power cannot be delegated to courts without violating the principle of local self-government. This is begging the question for, as we have seen, the powers conferred on the courts by this act, if it does confer any power, are not legislative powers but merely judicial. Hence there can be no violation of the principle of local self-government.

As we have seen, the law provides for the commencement of a suit in court, the filing of the petition, issuing of summons, further proceedings as in other causes, including impliedly the filing of answers, cross petitions and other necessary pleadings, the hearing of testimony by the court; it also provides for a finding of fact by the court, an order or decree by the court in its discretion, which we have found to be a judicial discretion, all of which is in strict accordance with the constitutional powers of the court of common pleas, in which this statute provides that these proceedings shall be prosecuted.

There is no surrender of any power of local self-government to be found in any of these proceedings, and no surrender of any constitutional right. On the contrary, full opportunity is given for a contest and the right to be heard in opposition, is carefully safeguarded.

Hence we find that the law is constitutional, does not confer legislative powers upon the judiciary, and is not an infringement of any power retained by the people.

Holding these views we find no error in the judgment of the common pleas court, in sustaining the demurrer to the answer of the defendant, and the judgment of that court is affirmed.

Norris and Vollrath, JJ., concur.

ASSESSMENTS-MUNICIPAL CORPORATIONS.

[Hamilton (1st) Circuit Court, February 11, 1905.]

Jelke, Swing and Giffen, JJ.

ELIZA R. NULSEN ET AL. V. CINCINNATI (CITY).

1. ASSESSMENT ACCORDING TO BENEFITS, DEPENDENT UPON DEPTH OF LOTS AND RELATIVE VALUE AFTER IMPROVEMENT MADE.

An assessment for improvements levied on lots on a basis of frontage, with. out reference to the depth thereof or the relative value of each after the improvement was made, is not an assessment in proportion to the benefits, within the statutory meaning.

2. CIRCUIT COURT WILL ENJOIN ASSESSMENT FRAUDULENTLY PURPORTING TO BE ACCORDING TO BENEFITS BUT ACTUALLY ON BASIS OF FRONTAGE.

The collection of an assessment actually made upon a basis of frontage, although the journal of the board of public service contains recitals that such assessment was levied according to benefits, will be enjoined.

INJUNCTION.

W. H. Whittaker and C. M. Leslie, for plaintiffs.

C. J. Hunt, city solicitor, for defendant.

GIFFEN, J.

Hamilton County.

The plaintiffs in this action seek to enjoin the collection of certain assessments levied upon the lots bounding and abutting Imperial street, this city. The resolution of the board of public service provided that said assessment is in proportion with the benefits which result to such lots and lands from said improvement and is limited to the special benefit conferred thereby on each lot or parcel of land assessed.

The petition contained the following averment:

"That in making said assessment said board of public service did not regard or attempt to regard the benefits thereof to the respective lots, but solely to apportion the costs and expense of the improvement upon the lots abutting thereon in proportion to their respective frontages upon said improvements. That said assessment while purporting to be according to benefits, is actually an assessment by the front foot, each front foot being assessed at the same rate although not similarly benefited."

These allegations are fully sustained by the evidence. It appears upon the face of the proceedings that each foot of ground abutting on the improvement is assessed for the same amount regardless of the depth of the lot, and the evidence considered in connection with a view of the premises shows that the benefits, if any, conferred were by no means uniform, and that in one case, at least, to wit, lot No. 44, no benefit whatever was conferred.

It is claimed, however that this court cannot inquire into the proceedings of the board for the reason that it kept a journal record of its proceedings which imports absolute verity. But if the board under a pretense of levying an assessment in proportion to the benefits conferred upon the several lots abutting upon the improved street did in fact make no such apportionment, but merely divided the cost of improvement by the number of feet abutting thereon, regardless of the depth of the lots and regardless of the relative value of each after the improvement was made, it would be and was a plain fraud, which could not be protected by any entry which the board may have made in its journal to the contrary. Chamberlain v. Cleveland, 34 Ohio St. 551.

The testimony shows that lot No. 43 was of the value of $300 after the improvement, and lot No. 218 was of the value of $625. The limit of the assessment being 25 per cent of such value, the collection of all over $75 upon lot No. 43, and all over $156.25 on lot No. 218 will be enjoined, as well as the entire assessment on lot No. 44.

The other alleged objections against the assessment are not well taken, and a decree may be entered in accordance with the above finding

Jelke and Swing, JJ., concur.

Telephone Co. v. Cincinnati.

TELEPHONE COMPANY-STREETS-PROBATE COURTS. [Hamilton (1st) Circuit Court, January, 1905.]

Giffen, Jelke and Swing, JJ.

QUEEN CITY TELEPHONE Co. v. CINCINNATI (CITY).

1. UNDERGROUND TELEPHONE SYSTEM NOT AUTHORIZED BY LAN. R. L. 5602 (B. 3471-1), WHEN.

A telephone company cannot construct and maintain underground wires and pipes, or conduits, and other fixtures for containing, protecting and operating such wires in the streets and public ways of a municipality of this state, under favor of Lan. R. L. 5602 (B. 3471-1), unless it owns and operates an exchange within such municipality. Said statute applies to companies in existence at the time of its enactment, as well as to those thereafter coming into existence.

2. LANING R. L. 5574 AND 5577 (R. S. 3454 AND 3461-1) ONLY AUTHORIZE OVERHEAD TELEPHONE SYSTEM.

The overhead construction, only, of telephone lines in the streets and public ways of the municipalities of this state, is authorized by Lan. R. L. 5574 and 5577 (R. S. 3454 and B. 3461-1).

3. TELEPHONE COMPANY MUST PROVE CORPORATE EXISTENCE TO MAINTAIN ACTION UNDER LAN. R. L. 5587 (R. S. 3461).

The corporate existence of a telephone company, and its organization by the election of directors, is a condition precedent to its right to have the probate court fix the mode in which its lines of wire shall be constructed in the streets of a municipality under Lan. R. L. 5587 (R. S. 3461).

4. PROBATE COURT CANNOT MAKE GENERAL REGULATIONS AS TO USE OF ALL STREETS BY TELEPHONE COMPANY UNDER LAN. R. L. 5587 (R. S. 3461).

While all the streets of a municipality may be subjected to the use of telephone lines by the probate court under favor of Lan. R. L. 5587 (R. S. 3461), nevertheless the statute does not contemplate that the court shall make general regulations as to all the streets, but on the contrary each street must be separately taken into consideration, and a definite order made with respect to its particular use. The judgment of the court must be a judicial determination according to established rules and practice, and not a general grant as to the use of all the streets, because the latter would be legislative in character, and beyond the constitutional power of the court.

5. DECREE OF COURT MUST BE RESULT OF JUDICIAL DETERMINATION TO BE VALID. A so-called "decree" of the probate court directing the mode in which a telephone line shall be constructed in the streets of a municipality, but which is neither a judicial determination of any judicial question involved in the proceeding, nor a finding and judgment thereon, nor a decree in substance or in form, but on the contrary is nothing more than an ordinance or act of legislation, is a nullity, and without any force of effect whatever.

6. STATUTE MUST BE READ IN LIGHT OF CONDITIONS EXISTING AT TIME OF EN ACTMENT.

It is a well settled rule of statutory construction that a statute must be read in the light of the conditions that existed at the time of its enactment, in order to ascertain the meaning of the legislature; and, with 25 O. C. C. Vol. 27