North Bend v. Cincinnati, L. & A. Elec. St. Ry. Co.

15 Ohio C.C. Dec. 268

• Court: Hamilton Circuit Court
• Decided: July 1, 1903
• Status: Published

Opinion

GIFFEN, J.

The plaintiff seeks to enjoin the defendant railroad company from constructing and operating a railroad over and across certain streets within the corporate 'limits without having first obtained the consent of the plaintiff. The court of common pleas allowed a temporary restraining order and afterwards, upon motion of the defendant, dissolved the same, and thereupon the plaintiff appealed from that order dissolving the injunction and now moves for a temporary restraining order, which is resisted by the defendant upon the ground that the plaintiff has not legal capacity to sue, because:

First. The municipal code of 1902 abolished hamlets and classified all municipal corporations as cities and villages.

Second. The repeal of Secs. 1550 and 1552 Rev. Stat. left no legislative basis for the existence of a hamlet.

Third. The sections of the revised statutes pertaining to' hamlets are unconstitutional and void. -f

I. Section 1 of the code provides that, -“All municipal corporations,, which, at the last federal census, had a population of five thousand or more, shall be cities. All other municipal corporations shall be villages.”

The purpose of this provision was not to destroy any existing municipal corporation, but to include all in two classes.

The classification of certain villages as hamlets was abolished, but their legal existence as'municipal corporations, if such they were, contii ued undisturbed, although they were no longer known as hamlets, but as villages.

It required no act of the corporation of North Bend to effect the transfer from one class to the other, although its organization as a village had not been attempted by the electors. It follows, therefore, that the plaintiff corporation is improperly designated as a hamlet, since it has by operation of law become a village; but this is a mere misnomer, which does not change substantially the claim of plaintiff, and may be amended under Sec. 5114 Rev. Stat. Sec. 213 of the code provides that “All officers * * * shall remain in their respective offices and employments and continue to perform the severa^ duties thereof under existing laws * * * until their successors are chosen or appointed and qualified or until removed by the proper authority.”

While this section effectually provides for a continuance of the life of the corporation, we see no reason to apprehend that it may be made perpetual. It contemplates the removal of the officers, and there is ample provision in the statutes to compel a reorganization of the corporation in accordance with the code.

TI. The repeal of Secs. 1550 and 1552 Rev. Stat. prevented the creation of additional hamlets, but did not destroy those already in existence except in name.

The classification was changed, but the corporation itself survived, subject, however, to reorganization under the class to which it, according to its population, belonged. The same act by which these sections were repealed provided for, the classification of all municipal corporations under two heads, and it seems clear that the legislature intended to include hamlets as well as all other municipal corporations in such classification.

III. It is contended further that the statutes pertaining to the creation of hamlets are unconstitutional and void, and that, therefore, there was no such municipal corporation as a hamlet when the code was enacted.

In the case of State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424], which is relied on by counsel for defendant, the precise question involved and decided is that an act to confer corporate power upon a single city by such classification as the statutes then provided is repugnant to Sec. 1, Art. 13 of the constitution, which ordains that “The general assembly shall pass no special act conferring corporate powers.”

Many corporations other than North Bend are included in the class of harqlets, and the statutes pertaining thereto evince no purpose on the part of the general assembly to prevent others from entering that class.

The court, in the case just cited, does not condemn all classification other than that making the two classes of cities and villages, but, on the contrary, is^careful to state that “Whether the provisions of Sec. 6, Art. 13 ordaining that ‘The general assembly shall provide for the organization of cities and incorporated villages, by general laws/ is an exclusive classification of municipalities into cities and villages we do not determine.”

We are unwilling, therefore, upon this^ preliminary hearing, to hold that hamlets had no constitutional existence, and the motion for a temporary restraining order will be granted.

In case No. 3837 the allegations in the petition of the danger to public travel under the proposed bridge ought to be more definite and certain, but enough is averred to warrant the conclusion that the construction and operation of the railroad over and above the street will probably be dangerous to the use of the street and. become a nuisance unless controlled and regulated by municipal authority. The ownership of the land abutting both sides of the street no more divests the trustees of the hamlet of control over the entire street than the ownership of the land abutting one side deprives them of control over one-half.