Concurring Opinion.

hold, but further than that no presumption obtains as to the purpose of this theater aside from these considerations; however, in the passage of this ordinance the municipal authorities entirely overlooked the general laws of the state now in force in reference to municipal corporations.

Section 2 of the act passed May 31, 1911 (102 O. L., 521), entitled, "An act to provide for the initiative and referendum in municipal corporations," provides, among other things, that no ordinance involving the expenditure of money shall become effective in less than sixty days after its passage.

Section 3 of this act provides that any act not included within those specified in Section 2 may be declared to be an emergency measure, and may go into effect immediately. This ordinance is one involving the expenditure of money, and one that, by the provisions of Section 2 of the act above referred to, shall not go into effect for sixty days after its passage. Therefore, the city council had no power or authority to declare this ordinance to an emergency measure, to take effect immediately.

be

It is suggested that counsel have waived this defect. I do not understand either from briefs or oral arguments that any such waiver is intended or attempted. But whether it is attempted to be waived or not, it is sufficient to say that neither the auditor nor his counsel have any right or authority to waive the positive provisions of a statute designed for the protection of the taxpayer.

It is true this question is not of general importance, but the relator is asking for a peremptory writ of mandamus, and before such a writ

Dissenting Opinion.

can be issued its right to such a writ must be clear. Having held that these general statutes, not inconsistent with the amendment, are the general statutes contemplated and comprehended in the provisions of Section 2 of Article XVIII, it follows that to be consistent they must be given application to this particular case, but, of course, not for the purpose of evading the real questions presented.

For the reason, therefore, that this ordinance does not show on its face that this appropriation is for the public purposes mentioned in counsel for relator's brief, or any other public purpose, and for the further reason that the city council has no authority to declare a resolution or ordinance involving the expenditure of money an emergency measure, and for no other reason, I concur in the judgment refusing the writ.

WANAMAKER, J., dissenting. I decisively dissent, not only from the judgment in this case, but also the syllabus, as well as the majority opinion by which it is sought to sustain such judgment and syllabus.

A decent regard for the inherent importance of the questions involved and the widespread state and national interest in the same, as well as a due respect for the majority opinion, demand more than a brief statement of the grounds of disagreement.

Let us start from some generally admitted ancient landmarks as to which we are aptly admonished in the Ohio constitution of 1802, Section 18 of the Bill of Rights: "That a frequent recurrence to the fundamental principles of civil

Dissenting Opinion.

government, is absolutely necessary to preserve the blessings of liberty."

The cornerstone of American government is found in that fundamental principle: "All political power is inherent in the people." Constitution of Ohio, 1802, Bill of Rights, Article VIII, Section 1; Constitution of Ohio, 1851, Bill of Rights, Article I, Section 2.

A few primary principles of political power and good government from the American viewpoint may furnish common ground for our consideration and help to clear some hazy notions as to political rights and powers, to the end that we may better understand the present status of our Ohio cities and villages.

In every American municipality to-day there are being exercised three distinct and differentiated kinds of political power:

First, municipal, that deals with purely municipal affairs; second, state, that deals with purely state affairs; third, national, that deals with purely national affairs.

The national power is now and always has been supreme in its own proper jurisdiction.

The state power is now and always has been supreme in its own proper jurisdiction.

The municipal power-quaere-but why not supreme in its own proper jurisdiction?

In point of time, which of these three great political powers was first in existence and operation-national, state, or municipal?

Manifestly, all must agree that we had towns, villages and cities exercising the powers of local self-government a long time before we had a

Dissenting Opinion.

state to exercise the state power or a nation to exercise the national power. This historic fact is so self-evident that it would seem unnecessary to support it by distinguished authority. However, to please those who pride themselves on precedent, let us note the following very eminent authorities: Cooley's Const. Lim. (7 ed.), 65; 1 McQuillin on Munic. Corps., 156; 1 Dillon (5 ed.), Sec. 14, et seq.; C. W. & Z. Rd. Co. v. Commissioners, 1 Ohio St., 77; Cass v. Dillon, 2 Ohio St., 630.

An even stronger case on the right of local self-government is that of People v. Hurlbut, 24 Mich., 45, and I specially enjoin upon all students of municipal rule to carefully read the very able opinions of the various judges in that case, especially Campbell's and Cooley's. I quote briefly from page 98:

"Our constitution has been adopted in view of a system of local government, well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, the liberties of the people have generally been supposed to spring from, and be dependent upon, that system. * * The doctrine that within any general grant of legislative power by the constitution there can be found authority thus to take from the people the management of their local concerns, and the choice, directly or indirectly, of their local officers, if practically asserted, would be somewhat startling to our people, and would be likely to lead hereafter to a more careful

Dissenting Opinion.

scrutiny of the charters of government framed by them, lest some time, by an inadvertent use of words, they might be found to have conferred upon some agency of their own, the legal authority to take away their liberties altogether."

If that be true as to the selection of local officers, how much more then would it be true as to the designation of powers that they might exercise? To the same effect, 28 Mich., 228.

If, now, we had and exercised municipal powers in matters of local self-government before we had a state and before we had a nation, how came we to lose those powers? Who took them away from us? Who perchance surrendered them, and to whom?

Is there, in the national constitution, any denial or limitation of the powers exercised by the many municipalities that were in existence all over the nation at the time and prior to the adoption of the national constitution? Certainly not.

The state constitution declares and defines the state powers, save as they are denied and limited by the national constitution. But does that same state constitution deny or limit the powers of local self-government in existence and in exercise by the cities and villages of the Ohio territory at the time the state was organized and the constitution adopted? If so, where is it provided that the power of local self-government henceforth, that is, after the adoption of the constitution, shall be denied or otherwise limited to the cities and villages of Ohio? Point out the article and the section.