#### Niehaus, Building Inspector, *v.*The State, ex rel. Board of Education of The City School District of The City of Dayton.

*Municipal corporations*— Building *inspection department*— Ap*proval of school building plans*— Section *1035, General Code —State and municipal police regulations*— Section *3, Article XVIII, Constitution*— Validity *of ordinance requiring fee.*

3. Section 1035, General Code, which requires the building inspection department of municipalities having a regularly organized building inspection department to approve the plans for the erection of a public school building, is a state police regulation, and the power of the General Assembly to enact such legislation is in no sense abridged by the provisions of Section 3, Article XVIII, of the Constitution of Ohio.

2. The General Assembly of the state having enacted a general law requiring the building inspection departments of municipalities having a regularly organized building inspection department to approve plans for the construction of public school buildings erected within such municipalities, a municipality is without power to thwart the operation of such general law by the enactment of an ordinance requiring the payment of a fee as a condition precedent to compliance therewith.

(No. 18353

Decided June 17, 1924.)

Error to the Court of Appeals of Montgomery county.

This action was begun in the Court of Appeals of Montgomery county, Ohio, by defendant in error against plaintiff in error, the prayer of the petition being for a writ of mandamus commanding plaintiff in error to issue without fee or charge a building permit to the board of education of the city school district of the city of Dayton, Ohio, to *48erect a new school building within the city for the accommodation of the children of school age of the district.

The petition contains an averment that the city of Dayton is a municipal corporation organized and incorporated under the Constitution and laws of Ohio and governed by a charter adopted pursuant to Sections 7 and 8, Art. XVIII, of the Constitution of Ohio; that subsequent to the adoption of its charter the city adopted an ordinance known as the Building Code of the city of Dayton, entitled:

“An ordinance to create and establish a division of building inspection within the department of public safety of the city of Dayton, Ohio; and to prescribe the duties of such division.

“And further to establish a building code regulating the erection and construction of, alterations in, and repair of, buildings and other structures, or parts thereof; regulating the sanitary condition of public and other buildings; providing for fire protection and fire prevention; providing for the protection of the lives, limbs and health of the persons assembled in or about such buildings or structures; and providing for the enforcement of such building code and for the penalties for the violation thereof.”

Section *4*of the ordinance is, in part, as follows:

“a. The chief inspector shall be the head of the division of building inspection and shall have the management of all matters and affairs pertaining thereto, but he shall be subject to the authority and control of the director of public safety, the city manager and the city commission, as provided by the charter of the city of Dayton, Ohio. * * *

*49“c. He shall be charged with the survey and inspection of buildings and structures, and with the enforcement of all parts of this code, except such sections as are charged to other city officers. * * *

“e. He shall examine and approve all plans and specifications before a permit shall be issued, and shall sign and issue all permits, certificates and notices required by this code.”

Section 8 of such ordinance reads, in part, as follows:

“It shall be the duty of all police officers of the city of Dayton whenever they see in their precinct a building or structure in process of erection to ascertain if a permit has been procured, and if none has been procured to require a cessation of the work thereon.”

Section 24 of such ordinance reads as follows: “Before proceeding with the erection, construction, alteration or repair of, or addition to any building or structure included under the provisions of this ordinance, a permit therefor shall first be obtained by the owner or his agent, architect, engineer, contractor or builder from the division of building inspection, and it shall be unlawful to commence or proceed with such work unless such permit shall have first been obtained; and no such permit shall be issued until after the plans and specifications have been examined and approved by the division of building inspection.”

Section 53 of such ordinance reads:

*“Permits for Buildings.*The fee for building permits shall be as follows:

“a. *New Buildings and Additions.*The fee for permits to erect or construct new buildings or *50structures or to add to old buildings or structures shall be fifteen one hundredths (15/100) of one (1) per cent, of the entire value of such building or structure, except that no permit shall be issued for less than one dollar and fifty cents ($1.50).”

Section 67 of such ordinance provides:

*“Payment of Fees.*The payment of all fees herein prescribed shall be made to the city treasurer direct from statements from the division of building inspection. * * * The city treasurer shall receive the amount specified and receipt therefor to the applicant, who in turn shall present such receipt to the division of building inspection, and upon such presentation, a permit, certificate or license shall be issued.”

The petition further avers:

“On October 24, 1923, said architects submitted to this defendant, Gustave A. Niehaus, as chief inspector of the division of building inspection of the said city of Dayton, Ohio, the plans and specifications for said proposed building. That said defendant herein examined said plans and specifications and approved the same, and thereupon notified said architects that he was ready to issue the building permit for the erection of said school building upon the presentation to him of a receipt from the city treasurer of the city of Dayton, Ohio, showing that the sum of $50.16, said sum being figured at 15/100 of 1 per cent, on said total amount of the value of said school building, had been paid in accordance with 'Sections 53 and 67 of the ordinance above referred to and which said sections are hereinabove set out in full.”

The petition avers a refusal to pay the fee, and *51a refusal of defendant to issue the building permit “solely on the ground of the refusal of said board of education of said city school district to pay said building permit fee.”

To the petition the defendant filed a demurrer, which demurrer was overruled by the Court of Appeals, and writ in mandamus issued. Error is prosecuted here.

*Mr. JohnB. Harshman,*city attorney; *Mr. Walter V. Snyder; Mr. Howard F. Heald*and *Mr. Guy H. Wells,*for plaintiff in error.

*Messrs. Nevin S Kalbfus,*for defendant in error.

Robinson, J.

¡Section 1031, General Code (99 O. L., 232), provides:

> “The chief inspector of workshops and factories shall cause to be inspected all schoolhouses * * * and other buildings used for the assemblage * * * of people. # # * Such inspection shall be made with special reference to precautions for the prevention of fires, the provision of fire escapes, exits, emergency exits, hallways, air space, and such other matters which relate to the health and safety of those occupying, or assembled in, such structures.”

Section 1035, General Code (99 O. L., 233), provides:

> “The plans for the erection of such structure * * * shall be approved by the inspector of workshops and factories, except in municipalities having regularly organized building inspection departments, in which case the plans shall be approved by such department.”

The school building proposed to be erected in *52this case was to he located within the corporate limits of the city of Dayton, for a district composed of territory both within and without the city. The legislation of both the city of Dayton and the state is directed toward preserving the health and securing the safety of the public, and is an exercise of the police power of the respective legislative bodies.

The police power of a municipality is granted to it by the Constitution of the state, but in the grant it is limited to such local power as is “not in conflict with general laws.”

The state in the exercise of its police power enacted Section 1035, General Code, and thereby made it the duty of the building inspection department of cities having such department regularly organized to pass upon the plans of buildings such as the schoolhouse here in question.

The plaintiff in error recognizing his duty in that respect passed favorably upon the plans of the defendant in error. However, after having approved such plans, he refused a permit for construction in pursuance thereof, for the reason that the city of Dayton had enacted an ordinance requiring as a condition precedent to the issuing of such permit the payment of a fee.

The status of a municipality in its relation to the sovereign state is not different, by reason or because of the adoption of Section 3, Art. XVTH, granting to municipalities authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws, than it was prior to the *53adoption of that provision, or would he in case of its repeal.

That section of the Constitution grants to municipalities all powers of local self-government and such local police power as is not in conflict with general laws; in other words, where, prior to the adoption of the amendment, such powers were granted by the sovereign state, through its legislative body, subject to withdrawal by the state through its legislative body, the power now is granted by the sovereign people of the state subject to withdrawal by the sovereign people; but the sovereignty of the state over the municipality is not divested by that provision, nor does the power of the sovereign to administer public affairs end at the corporation line. The only feature of the sovereign power which is surrendered by the so-called “home rule” provision of the Constitution is that which relates solely to local government. Neither the municipality nor its officers are relieved of any obligation which other political subdivisions and other officers owe to the state, except in the matter of local self-government, and such municipalities and their officers are still agencies of the state, acting in behalf of that portion of the state in which they have jurisdiction. "While within its own boundaries, within the limits of the grant, it executes the functions and possesses the attributes of sovereignty, and to that extent as against its citizens and all persons within its jurisdiction has the rights and immunities of the sovereign, yet as against the sovereign it is but an agent whose powers may be withdrawn at the will of the sovereign that granted them. Hence, the power to exercise sover*54eignty in local self-government, and local police power not in conflict with general law, does not confer upon municipalities the power to enact and enforce legislation which will obstruct or hamper the sovereign in the exercise of a sovereignty not granted away.

The matter of providing the means of education is by the Constitution expressly imposed upon the General Assembly of the state.

By Section 7, Art. I, of the Constitution, it is provided:

> “It shall be the duty of the General Assembly to pass suitable laws * * # to encourage schools and the means of instruction.”

Section 2, Art. VI, provides:

> “The General Assembly shall mate such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state.”

Section 3, Art. VI, provides:

> “Provision shall be made by law for the organization, administration and control of the public school system of the state supported' by public funds. ’ ’

The only constitutional concession of power to municipalities with reference to public schools is a provision that municipalities that have attained to the classification of a city shall have power to determine by a referendum vote the number of members of the school board of the district situated wholly or partly within such city.

The power, then, of the municipality to approve the plans for the erection of a public school build*55ing, is the power granted by the Legislature in Section 1035, General Code.

The Legislature is authorized to invest the inspector of workshops and factories, or any other state official within municipalities, as well as without, with power to approve plans and specifications for any public school building. It has the power to require the payment of a fee to such official for the performance of such duty, and it has the power to vest such power in any official of a municipality within the jurisdiction of such municipality, and to provide for the payment of a fee to such official; but it had not so provided. The limit of the power of the municipality in that respect is the power granted by the Legislature.

It would hardly be contended that a municipality would have the power to enact and enforce an ordinance which would require the payment of a fee as a condition precedent to performance of its duty under Section 1033 of the General Code, which provides that, if the provisions of Section 1031, General Code, are not complied with by the owner of a building, it shall be the duty of the mayor with the aid of the police to prevent the use of the structure for public assemblage.

The fact that the Legislature has provided for the payment of a fee by political subdivisions, as well as a payment of a fee by individuals for the performance of certain official acts, such as the transfer of real estate and the recording of deeds, is not helpful in the determination of the question in this case, for the reason that the Legislature has not provided for the payment of a fee to muniei*56palities or their officials for the service exacted by Section 1035.

There having been no general surrender of sovereignty over municipalities operating under a charter of their own adoption, the sovereignty of the state extends throughout the municipalities in all matters not clearly surrendered, and that sovereignty may not be defeated by the enactment of an ordinance inconsistent with general laws.

*Judgment affirmed.*

Marshall, C. J., Jones, Matthlas, Day and Allen, JJ., concur.

Wanamaker, J., not participating.