Opinion
No. 23320
Decided April 6, 1932.
Constitutional law — Building code — Sections 12600-1 to 12600-299, General Code — Police regulation and not unconstitutional.
The building code of the state of Ohio as comprised in Sections 12600-1 to 12600-299, inclusive, General Code of Ohio, is a police regulation and is not in conflict with the Constitution of the state of Ohio.
ERROR to the Court of Appeals of Franklin county.
This proceeding is filed in this court as a claimed matter of right; consequently, proceedings in the courts below between the same parties concerning the same subject-matter are purely historical.
Plaintiff, Amor F. Bogen, pleads that Sections 12600-1 to 12600-299, General Code of Ohio, which comprise the State Building Code, are unconstitutional in the following respects:
First, that Section 12600-288, General Code, is a delegation of legislative authority to an administrative body, and is in derogation of Section 1 of Article II of the Constitution of Ohio.
Second, that the provisions of the act providing for the establishment of equivalents is an indirect manner of suspending the penal sections of the Building Code, and is contrary to Section 18, Article I of the Bill of Rights, which provides: "No power of suspending laws shall ever be exercised, except by the General Assembly."
Third, that the provisions of the act permitting rules of equivalency to be filed with the secretary of state, and to have the force of laws, offend against the referendum provisions of the Constitution of Ohio, particularly Article II, Section 1a, et seq.
Fourth, that this act contravenes the constitutional provisions in relation to the uniformity of operation, namely, Section 26, Article II of the Constitution, which provides that: "All laws, of a general nature, shall have a uniform operation throughout the State; nor, shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this constitution."
Fifth, in this assignment of error we find the real "bone of contention":
"Plaintiff * * * avers in general terms his business and property rights as well as that of all those for whom he brings this action. He further avers that he and they are citizens and taxpayers and that each of them is a manufacturer, seller, and distributor of heating and ventilating systems, devices, and equipment, and for many years they have been actively engaged in this business and for the purpose of conducting their respective businesses and being ready to supply on demand the systems, devices, and equipment prescribed by the State Building Code they operate and have operated large and extensive plants and establishments. * * * Plaintiff further alleges that the enactment of the proposed rule by the Board of Building Standards would interfere with his business and with his property rights and that the permitting by the board of other systems and devices would cut down his sales and cause great damage and loss to him and to these for whom he brings this suit."
The court of common pleas of Franklin county found these various sections of the Building Code to be constitutional, its judgment was affirmed by the Court of Appeals, and error is prosecuted to that judgment.
Messrs. Knepper, White, Smith Dempsey, for plaintiff in error.
Mr. Gilbert Bettman, attorney general, Mr. L.F. Laylin and Mr. Isadore Topper, for defendants in error.
It must be borne in mind that the Building Code of Ohio is a police measure, and as such it must be accorded the liberality that all law accords to police regulations. Mirick v. Gims, Treas., 79 Ohio St. 174, 86 N.E. 880, 20 L.R.A. (N.S.), 42. The law as announced in the syllabus of this case does not bear on the question in the case at bar, but in his reasoning Judge Davis very clearly expresses the limitations of the police power. General enactments intended to conduce to the public health and safety will not be rendered nugatory because of the fact that particular parts or sections thereof may offend against the business of a particular class.
The general welfare of the public must demand the first consideration of the court. At the same time, the court cannot waive aside the plain provisions of the Constitution on the theory that even the Constitution must bend to the public good.
Are these provisions in derogation of the Constitution?
Where a power is quasi legislative, or quasi administrative, or quasi judicial, or a combination of all of them, the Legislature may, where such twilight zone of distinction applies, characterize the power and confer it upon any agency it selects or creates for the purpose. Miami County v. City of Dayton, and State, ex rel. Duncan, Pros. Atty., v. Franklin County Conservancy District, 92 Ohio St. 215, 110 N.E. 726, ninth paragraph of syllabus, approved and followed.
It might be said, in passing, that it always has been and always will be the policy of our government, national and state, to keep distinct and separate our legislative, judicial and executive departments of government, so that each may operate as a check and balance upon the other; but government would prove abortive if it were attempted to follow such policy to the letter. State agencies and public officials, regardless of classification, could not function if this rule were strictly followed, particularly in the exercise of the police power of the state.
The principal contention in this case is the delegation of the power to the building commission to establish a standard of equivalents.
We see no serious contention along this line. The Legislature very wisely provides that such standards must be measured by the considerations of safety and sanitation. The right of the public to be heard when a specific requirement is departed from has been preserved by Section 12600-290, General Code of Ohio.
This court finds that the Building Code of the state of Ohio, as provided for in Sections 12600-1 to 12600-299, inclusive, General Code of Ohio, is a police regulation and as such is not in derogation of the Constitution of the state of Ohio.
Coming now to the consideration of the cause as a proceeding in error whereby it is sought to reverse the judgment of the Court of Appeals of Franklin county, Ohio, the court finds no error in the record, and the judgment of that court is affirmed.
Judgment affirmed.
JONES, MATTHIAS, DAY and KINKADE, JJ., concur.