145 N.E. 542
No. 18788Supreme Court of Ohio.
Decided December 2, 1924.
Municipal corporations — Assessments — Home-rule charter provisions yield to state statutes.
IN MANDAMUS.
Mr. William E. Lewis, for relator.
Mr. Ralph R. Miller, for defendant.
BY THE COURT.
This cause coming on to be heard upon the pleadings and the admitted facts, the court finds upon the issues for the defendant upon the authority of the case of Berry v. City of Columbus, 104 Ohio St. 607, 136 N.E. 824, and finds that the relator is not entitled to a writ of mandamus against defendant.
Writ denied.
MARSHALL, C.J., ROBINSON, JONES, MATTHIAS, DAY, ALLEN, and CONN, JJ., concur.
MARSHALL, C.J., concurring.
The legal question involved in this controversy is not a new one in this court. The same general principle has been involved in several cases, but the identical principle was involved in the case of Berry v. City of Columbus, 104 Ohio St. 607, 136 N.E. 824. That case was disposed of upon a journal entry, in which five members of this court concurred. There have been three changes in the personnel of this court since that decision was rendered on
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February 14, 1922, and at this time, after three changes in the court, six members concur in upholding the principles of th Berry case, resulting in a denial of the writ of mandamus in the instant case. While I did not agree with the majority view in the Berry case, and do not yet feel convinced of the soundness of the conclusions reached, it seems that the principle involved has become settled by repeated decisions, and should not only remain settled, but be accepted by all the members of this court, as it must be accepted by the bench and bar of Ohio generally. In the instant case there is a clear conflict between certain provisions of the charter of the city of Youngstown, relating to the procedure for improvement of streets, and the provisions of the General Code, relating to the same subject. It was decided in the Berry case that the charter provisions must yield to the statutes. In the interest of greater stability, and feeling that it is of the utmost importance that this question should be definitely settled, so that municipalities may no longer entertain any doubt concerning the same, I have decided to concur with the majority in this case, thereby making the decision unanimous, and shall concur upon similar principles in future cases. If this unanimous judgment is contrary to the wishes of the people, another constitutional amendment will now be in order, whereby their wishes may be more clearly expressed.
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