Statement of the Case.

THE STATE, EX REL. CITY OF TOLEDO, v. WEILER ET AL., COMMISSION OF PUBLICITY AND EFFICIENCY.

Municipal corporations — Purchase of public utilities - Constitutional and statutory powers-Issuing bonds and pledging general credit — Limitation of indebtedness-Section 13, Article XVIII, Constitution, 1912.

1. Municipalities of the state are empowered by constitutional provision to acquire any public utility, the product or service of which is to be supplied to the municipality or its inhabitants, and they may issue bonds to raise money for such purpose, pledging the general credit of the municipality to their payment.

2. Grant of power from the legislature is not a prerequisite, and under the provisions of Section 13, Article XVIII of the State Constitution, the indebtedness which may be incurred for such purpose is subject only to the limitation prescribed by the legislature as to the extent of general tax levies and the aggregate amount of indebtedness that may be incurred for all local purposes.

3. Each municipality assumes responsibility consonant with the authority conferred, and is not only permitted but required to determine for itself the portion of its taxing and debt incurring power which shall be used for any authorized municipal purpose, within such constitutional and legislative limitation.

(No. 16512-Decided March 16, 1920.)

IN MANDAMUS.

This is an original action in mandamus instituted in this court asking that the Commission of Publicity and Efficiency of the City of Toledo, whose duty it is under the charter of that city to publish in the Toledo City Journal all ordinances of a general nature, be required to publish a certain ordinance passed by the council of the city of Toledo

Statement of the Case.

January 19, 1920, providing for the issuance of bonds of said city for the purpose of acquiring a public utility, to-wit, a transportation system in the city of Toledo, for the purpose of supplying transportation to the inhabitants thereof.

It is disclosed by the pleadings that the city of Toledo duly adopted a charter for its government November 3, 1914, which charter creates what is known as a Commission of Publicity and Efficiency, and that the defendants herein named are the duly appointed, qualified and acting members of such commission.

Under the provisions of such charter it is the duty of such commission to publish weekly the Toledo City Journal, in which, among other matters specified, shall be published all ordinances of a general nature, within ten days after passage of the same. Other provisions of the charter are set forth, which provide for the acquiring of public utilities and for the issuance of bonds therefor, but it is unnecessary to state them here in detail.

On January 19, 1920, the council of the city of Toledo duly passed an ordinance providing for the issuance of bonds of such city in the sum of $1,000, for the purpose of acquiring a public utility, to-wit, a transportation system in the city of Toledo for the purpose of supplying transportation to the inhabitants thereof, and providing that for the purpose of procuring an amount sufficient to pay the interest on said bonds and to provide a sinking fund for their final redemption there be levied on all the taxable property of said city, in addition to all other taxes, a tax sufficient to create a sinking fund

Opinion, per MATTHIAS, J.

to redeem such bonds and to pay the interest thereon as it shall accrue. Such ordinance was duly approved by the mayor, and a certified copy thereof transmitted to the Commission of Publicity and Efficiency for the purpose of publication as provided by the charter of the city; the members of the commission refused to publish the same, stating as their reason for such refusal that the ordinance is contrary to and in contravention of the Constitution of Ohio, particularly Article XVIII and Section 6 of Article XIII thereof, and in contravention of the laws of this state, particularly Sections 3939 to 3954-1, inclusive, General Code; that said city is without power under the constitution and laws of the state to provide for the issuance of bonds against the general credit of the city for the purpose of acquiring a public utility, a transportation system to be owned and operated by the city; and that the expenditure of the funds of the city for such purpose would be unlawful.

Mr. Jas. S. Martin, director of law, for relator. Messrs. Denman, Kirkbride, Wilson & McCabe, for defendants.

Mr. John G. Price, attorney general, amicus curiae.

MATTHIAS, J. This case presents the question whether the city of Toledo may lawfully issue bonds against its general credit and payable out of the funds to be raised by general taxation for the purpose of acquiring a transportation system to fur

Opinion, per MATTHIAS, J.

nish transportation for the inhabitants of that municipality.

The small amount in which it is proposed to issue such bonds suggests that the proceeding by the municipal authorities and this suit were instituted for the purpose of submitting for the determination of this court the sole question whether under the constitution and laws of the state the city has authority to incur any indebtedness for the purpose stated, which may be paid by general taxation. The question we have for consideration is not one of propriety or policy of municipal ownership, but only of the power and authority of municipalities of the state with respect thereto. If they have the power, the question of policy is confided to the municipality alone.

It is conceded, as of course it must be, in view of the express provisions of Section 4, Article XVIII of the State Constitution, and of the power and authority clearly conferred, that any municipality of the state may acquire any public utility, the product or service of which is to be supplied to the municipality or its inhabitants. It is contended, however, that the power thus conferred directly upon the municipalities of the state is so limited and circumscribed that the credit of the municipality may not be used or pledged for the purpose of acquiring or constructing such public utility, and that the power conferred may be exercised and such utility acquired or constructed only by paying cash or exchanging property therefor. It is urged that the municipality may not go into debt for such purpose to any extent whatever, by

Opinion, per MATTHIAS, J.

the issuance of bonds, or otherwise, whereby it pledges the general credit of the city to the payment of the same or any part thereof.

In the view we take of the question thus presented it is unnecessary to consider the provisions of the charter of the city of Toledo respecting the issuance of bonds for the purpose here in question, for the reason that in our opinion the adoption of a charter is not prerequisite to the enjoyment of the power herein sought to be exercised, and therefore adds nothing whatever to the authority conferred upon the city by constitutional provision. Such authority is conferred upon and may be exercised by every municipality regardless of whether or not it has adopted a charter for its government under the provisions of Section 7, Article XVIII of the Constitution. The provisions conferring such power are clearly self-executing. This conclusion is warranted by reason of the broad and comprehensive terms of Section 4, Article XVIII, above referred to, for plenary power is thereby conferred upon each and every municipality of the state to deal with the subject, and, if authority to levy taxes and issue bonds is absolutely essential to the enjoyment of the power granted, such authority is a necessary incident and must have been included in the power conferred. It is a matter of common knowledge that such utilities could not be otherwise acquired or constructed.

Section 5, Article XVIII, defines the procedure and requires that municipalities shall act by ordinance, upon which a referendum vote may be had in the manner therein set forth. Section 6 makes