State ex rel. Brubaker v. Brown

163 Ohio St. (N.S.) 241
Ohio Supreme Court·Decided April 27, 1955·No. No. 34408·Published

Opinion

Taft, J.

The question to be decided is whether an enumeration of the inhabitants of a village at a particular time, made by the Bureau of the Census of the United States Department of Commerce at the request of that village and pursuant to a contract between that village and the Department of Commerce, is included within the meaning of the words, “any federal census,” as those words are used in Sections 703.01 and 703.06, Revised Code. If it is, then the writ of mandamus should have been allowed; and, if not, it was properly denied.

In stating the question to be decided, we have used the words, “enumeration of the inhabitants,” because the Attorney G-eneral, in arguing that such enumeration was not a “federal census,” has suggested that it would not even be recognized under the federal laws as a census.

The authority for such an enumeration by the Bureau of Census of the United States Department of Commerce is found in Section 8 (b) of Title 13, United States Code, which reads:

“The secretary may furnish transcripts or copies of tables and other census records and make special [245] statistical compilations and surveys for state or local officials, private concerns, or individuals upon the payment of the actual, or estimated cost of such work.”

In contrast with the words, “statistical compilations and surveys,” the Attorney General refers to the part of Section 141 of Title 13, United States Code, which reads:

‘ ‘ The secretary shall, in the year 1960 and every ten years thereafter, take a census of population * * * in each state.”

It may be observed that the taking of a census will necessarily involve the making of “statistical compilations and surveys”; and that the authority expressly given by Section 8 (b) of Title 13, United States Code, to make such compilations and surveys, especially since it is given to the officer generally authorized to take censuses and given in connection with other language providing for furnishing copies of “census records,” quite clearly includes authority to take a census for local officials on the payment of the cost thereof.*

Furthermore, it may be observed that provision for or suggestion of any federal census apparently originated in the third paragraph of Section 2 of Article I of the Constitution of the United States, which uses [246] the words, “enumeration” of “persons,” to describe what we usually refer to as a census. The word, “census,” is not used in those constitutional provisions.

Likewise, the words of Ohio statutes relative to classification of cities and villages have frequently expressly regarded an “enumeration” of the persons living in a particular locality as a “census” of that locality. See, for example, Sections 703.05, 703.06, 703.11, 703.12, 703.13, 703.14 and 703.15, Revised Code.

In our opinion, therefore, the Court of Appeals in its findings correctly described the “enumeration” in question in the instant ease as a “census.” See Cahill v. Leopold, Secy. of State, 141 Conn., 1, 103 A. (2d), 818, 823, 832.

Since this “census” was taken by the federal government pursuant to federal laws authorizing its taking, it was obviously a “federal census.” In re Cleveland’s Claim, 72 Okla., 279, 282, 180 P., 852, 855. See City of Compton v. Adams, Treas., supra. There is nothing in the words of these Ohio statutes to indicate that, by the words, “any federal census,” the General Assembly did not intend to describe a “census” authorized by federal law unless it was directed by federal law.

It is pointed out that the proclamation, provided for in Section 703.06, Revised Code, is to state “the names of all municipal corporations” and “the population of all such municipal corporations” and is to be sent to “the mayor of each such municipal corporation”; and that the statute further provides that “30 days after the issuance of such proclamation each municipal corporation shall be a city or village as the case may be. ’ ’ It is argued that, since every municipal corporation in the state was to be dealt with and apparently affected by this proclamation, the General Assembly did not intend to provide for a proclamation to be issued as a result of a special census of a single municipal cor[247] poration but intended to provide only for a proclamation to be issued as a result of a state-wide census. There is much force to this argument. Cf. Sprout, Tax Collector, v. State, ex rel. Smith, 153 Fla., 892, 16 S. (2d), 109. Thus, it would seem unnecessary to have such a comprehensive proclamation as a result of a special census of a single municipal corporation if the General Assembly intended that such a census might operate to effect the transition of a single municipal corporation from the status of a village to that of a city.

However, as we know, the General Assembly sometimes provides for cumbersome administrative procedures. Certainly, the provisions with respect to this proclamation are not necessarily inconsistent with a legislative intent that a special federal census of a single municipal corporation should operate to effect its transition to the status of a city. At most, therefore, these provisions with respect to the proclamation raise a doubt as to whether the words, “any federal census,” were intended to include a federal census of a single municipal corporation; and they thus create only an ambiguity with respect to the meaning of those statutory words.

It is further pointed out that the next to the last sentence of Section 703.01, Bevised Code, requires a determination of the number of college or university students in attendance at an educational institution in a municipal corporation and provides for not counting certain ones of them in determining the population of such municipal corporation for purposes of classification as a city, and that the last sentence of Section 703.01, Bevised Code, provides for “a proclamation” after each decennial census certifying the number of permanent residents and the number of students in a municipal corporation. It is then argued that, since the student enumeration must be made in order [248] to make the proclamation provided for in Section 703.06, Revised Code, the proclamation referred to in Section 703.01, Revised Code, is a part of the one referred to in Section 703.06, Revised Code, and is to be made by the very words of Section 703.01, Revised Code, only “after each decennial census.” Again, there is much force to this argument.

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State ex rel. Brubaker v. Brown, 163 Ohio St. (N.S.) 241 (Ohio 1955).

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Related

City of Compton v. Adams
203 P.2d 745 (California Supreme Court, 1949)
Cahill v. Leopold
103 A.2d 818 (Supreme Court of Connecticut, 1954)
Sproul v. State
16 So. 2d 109 (Supreme Court of Florida, 1944)
In Re Cleveland's Claim
1919 OK 139 (Supreme Court of Oklahoma, 1919)