author: Williams, J.

text:
    Snell v. The Cincinnati Street Railway Co.

      Change of venue — In suit by or against a corporation — Section BOSS, Revised Statutes — Not in conflict with State or Federal Constitution — Sufficiency of affidavit of applicant — Presumption of credibility of affiant — Rule as to evidence — Nature of order overruling application for change of venue — Error not waived, when.

    1. Section 5033, of the Revised Statutes, which, provides for a change of venue ‘1 when a corporation having more than fifty-stockholders is a party in an action pending in any county in which the corporation keeps its principal office or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in the county,” is not in conflict with the state or federal constitution.
    2. It is not necessary, to entitle the applicant to the benefit of the statute in a case for which it provides, that his affidavit shall state the grounds of his belief that he cannot have a fair and impartial trial in the county in which the action is pending, nor that the sustaining affiants shall state the grounds of their belief. It is sufficient that the affidavit of the applicant state that he cannot “as he believes,” have a fair and impartial trial in that county. And his application is “sustained” within the purview of the statute, when there is filed the several affidavits of five credible persons 'residing in the county, stating that they entertain the same belief. When so complied with, the statute is mandatory.
    3. Unless the character of an affiant for truth is attacked, he will be presumed to be a credible person, and evidence in his support is not required nor admissible; but if attacked, it becomes a question for the court to determine whether he is a credible person, and unless found to be so, the application may be denied.

      4. Whether the action is one in which a corporation having more than fifty stockholders is a party, or is pending in the county where the corporation keeps its principal office or transacts its principal business, are questions for the determination of the court in which the application is made ; and if the statement of these facts in the affidavit is denied, the burden is on the applicant to establish them.
    5. An order overruling- an application for a change of venue is not an order made in a special proceeding which may bemade the foundation of an independent proceeding in error, but is properly reviewable on error prosecuted to the final judgment in the action. The error is not waived by proceeding to a trial of the action, without objection by the applicant. .
    (Decided May 9, 1899.)
    Error to the Circuit Court of Hamilton county.
    Action was brought in the court of common pleas of Hamilton county, by Charles B. Snell, against the Cincinnati Street Railway Company, a corporation organized under the laws of this state, to recover damages sustained by the plaintiff in consequence of alleged negligence of the defendant. The. court overruled a motion filed by the plaintiff for a change of venue, to which he took exceptions, and obtained a bill of exceptions showing that his motion was supported by his own affidavit, and the several affidavits of five other persons, residents of Hamilton county, and that no other affidavits or evidence was offered by either party on the hearing of the motion. The affidavit of the plaintiff is as follows:
    “Charles B. Snell, being duly sworn, says that he is the plaintiff in the above entitled action, now pending in the court of common pleas, of the said Hamilton county; that the defendant in the above entitled action is a corporation, and has more than fifty stockholders in the said Hamilton county, Ohio, in which said county the defendant keeps its principal office, and in which said county the said action is now pending, and that this affiant can not, as he believes, have a fair and impartial trial in the said connty. ’ ’
    The affidavits of the other five persons are substantially alike, and the following copy of one will suffice to show the character of all of them:
    “Lewis Stentz, a credible person, being duly sworn, says that he resides in the said Hamilton county, Ohio; that he is now and for one year last past, has been engaged in the business of life insurance, as managing agent of the Northwestern Life Assurance Company, and has resided for the past five (5) years in the city of Cincinnati, in the said county; that Charles B. Snell is the plaintiff in the above entitled action, now pending in the court of common pleas of the said Hamilton county; that the Cincinnati Street Railway Company, the defendant in the above entitled action, is a corporation and has more than fifty stockholders in the said Hamilton county, Ohio, in which said county the said defendant keeps its principal office, and in which said county the said action is now pending, and that this affiant believes that the said Charles B. Snell can not have a fair and impartial trial in the above entitled action in the said county.”
    The motion having been overruled, a trial was had to a jury upon the issues joined by the pleadings, which resulted adversely to the plaintiff; and from the judgment rendered on the verdict he prosecuted error to the circuit court, where the judgment was affirmed, and he now brings the case to this court. The only error assigned here and in the circuit court is the refusal of his application for the change of venue. Any other facts that may be deemed important will be stated in the opinion.

      John W. Wolfe and Thomas L. Miohie, for plaintiff in error.
    The-first question that arises is raised by the opinion of Judge Cox, of the circuit court, that the order overruling the motion for change of venue is a final judgment in the sense that error proceedings should have been taken from the over ruling of the motion. This was not the view of counsel for defendant in error.
    Section 6707, Revised Statutes, defines what is a final order, which may be vacated, modified or reversed.
    Clearly, an order overruling the motion for a change of venue did not, in effect, determine the action nor prevent a judgment. Further, “an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment.”
    Clearly, an order denying a change of venue was not an order made in a special proceeding, nor upon a summary application in an action after judgment.
    An entry of this sort in a case is no more in a special proceeding than any other step or motion in the case, because the motion for a change of venue relates merely to the trial of the main cause of action,and the entry does not accomplish anything further than to determine the court in which the case shall be tried. Mix v. Kepner, 81 Mo., 93.
    The Missouri statute is very much like our secA tion 5032 of the Revised Statutes, which leaves to the court the exercise of reasonable and sound dis cretion in directing the change of venue, though in many states, the use of the word “may” in statutes, authorizing a change of venue, is deemed mandatory when the showing made entitles the applicant to the change.
    In some states where the practice allows error by exceptions, it would be proper to go to the Supreme Court on exceptions to the order denying the motions. Hilliard v. Beattie, 58 N. H., 112; Skelly v. Jefferson Branch Bank, 9 Ohio St., 607; St. Louis, Oak Hill & C. R. Co. v. Fowler, 113 Mo., 458; Dowling v. Allen, 88 Mo., 300; Turner v. Hitchcock, 20 Iowa, 310.
    The provision of section 5033 are very plain, and, as we claim, mandatory, leaving no discretion whatever in the court when the conditions of the statute have been met. Statutes regulating change of venue are common to most of the states of the union, and have been uniformly enforced by the various courts. Swan v. Bournes, 47 Iowa, 501; Peyton v. Johnson, 37 Neb., 886; Bachman v. Milwaukee, 47 Wis., 435; Buck v. Eureka, 97 Cal., 135; Porter v. Mann, 4 Hill (N. Y.), 540; State v. Superior Court, 9 Wash., 668; Bixby v. Carskadden, 63 Iowa, 164; Albert v. State, 66 Md., 325.
    In a number of states statutes authorizing a change of venue upon a prescribed showing are construed as mandatory. Vol. 4, Enel, of Pleading and Practice, 440 and 441, citing authorities from twenty-four- different states. Goodnow v. Litchfield, 63 Iowa, 275; Deere v. Bagleg, 80 Iowa, 197; Hanna v. People, 86 Ill., 243.
    The court will observe that section 5033, under which this application is made, follows section 5032. It is evident that the legislature intended to provide that in a certain class of cases the right to a change of venue should be established upon a prescribed showing.

      The presumption of law is that any court in this state will give a fair and impartial trial, and statutes providing for change of venue have been enacted in order to insure a trial without prejudice and without undue influence. The first care of the law is to secure to every litigant a fair and impartial trial.
    It is not a question of the county in which the trial takes place, but of the constitutional right of every litigant to a fair and impartial trial. Questions of inconvenience or delay or additional expense are not arguments with a court in construing the law, although such arguments might be addressed to the legislature.
    The constitution of the state of Ohio confers no jurisdiction whatever on the court of common pleas in either civil or criminal cases. It is made capable of receiving jurisdiction in all such cases, but can exercise none until conferred by law. Stephens v. State, 3 Ohio St., 453; The State of Ohio v. Thomas McGehan, 27 Ohio St., 280.
    The jurisdiction of the courts of common pleas of this state is merely a matter of legislation. State ex rel v. Rabbitts, 45 Ohio St., 178; Hilliard v. Beattie, 58 N. H., 112; State v. Shaw, 43 Ohio St., 224.
    The different statutes of Ohio providing for change of venue are as follows:
    Sections 550, 5032, 5033, 5704, 7263.

      Paxton, Warrington da Boutet and Eittredge da Wilby, for defendant in error.
    The section 5033 is in conflict with article 1, section 2 and 16, of the bill of rights of our constitution, and also with article XIV, section 1, of the United States constitution. It does not furnish either “equal protection and benefit” or “remedy by due course of law” under our own constitution; and it denies “the equal protection of the laws” under the federal constitution. Coal Co. v. Rosser, 53 Ohio St., 12; Stale of Ohio ex rel. v. Ferris, Id., 314; Gulf Colorado and Santa Fe Ry. v. Ellis, 165 U. S., 150; Branville Coal Co. v. People, 147 Ill., 66; County of San Mateo v. Southern Pac. R. Co., 13 Fed., 722; County of Santa Clara v. Southern Pac. R. Co., 18 Id., 385; Shaver v. Pennsylvania Co., 71 Id., 931.
    Was not the second application for change of venue to be controlled by the rule that a decision of a motion heard upon the merits is conclusive of a subsequent motion in the same case, based upon the same grounds ? Meyer v. Wick, 15 Ohio St., 548; Day v. Mertlock, 87 Wisc., 577; Dick v. Williams 87 Wisc., 651; Parrot v. Hodgson, 46 Ill. App., 232; Obear v. Gray, 73 Ga., 455; Wingo v. Watson et al., 98 N. C., 482.
    In presenting the question of waiver we will not be understood as impliedly conceding that error was committed in overruling the motion for change of venue. We contend there was no error, and shall endeavor to prove it later. But we believe' plaintiff has precluded himself from questioning the correctness of the ruling.
    In the first place, it was not necessary for plaintiff to go to trial upon the merits of the cause before prosecuting a proceeding in error to reverse the order denying the change of venue; because that order was a final order within the meaning- of ■ Revised Statutes, section 6707. If it was a final order, then the claim made on behalf of plaintiff that there was nothing else to do after it was made except to go to trial on the merits, is unfounded.
      Watson & Co. v. Sullivan, 5 Ohio St., 42; Harrison et al. v. King et al., 9 Ohio St., 388; Young v. Gerdes, 42 Ohio St., 102; C. S. & C. C. R. Co. v. Sloane, 31 Ohio St., 1; Burke v. Ry. Co., 45 Ohio St., 631; City of Lancaster v. Miller, 58 Ohio St., 558; Home Life Insurance Co. v. Dunn, 20 Ohio St., 175.
    It follows that there was no necessity for plaintiff to forego a proceeding in error and voluntarily enter upon and conclude a trial on the merits of the action; and that there was no right in him to do so and still to say he has not waived whatever error may have occurred in overruling the motion for a change of venue. It can not be that a plaintiff should thus be permitted to subject his adver" sary to such additional trouble and expense. The plaintiff had it in his power to waive the error and proceed to final trial. ■ What stronger evidence is needed to prove the waiver, than such voluntary conduct as this ? There were two courses open to him. One was to secure a reversal for error, if error there were; the other was to waive the error and go to final trial in the same tribunal. That 'he adopted the latter course is proved by the fact that he asked for the trial, obtained it and con" eluded it without an exception, either to the jury or to any action of the trial court. He proceeded on the apparent hypothesis that he was, when the trial took place, satisfied with everything that had occurred, as well as with what was passing.
    If a party does not resist as far as he can, his submission to a trial on the merits is a waiver of all previous errors. It need scarcely be said that if it was open to plaintiff to prosecute error to thé order denying the change of venue, he did not resist jurisdiction to try the merits as far as he was permitted. Andrews v. Youngstown, 35 Ohio St., 218; Collins v. Davis, 33 Ohio St., 567; Jones v. Booth, 38 Ohio St., 405; Matthews v. Davis, 39 Ohio St., 55; Skelly v. Bank, 9 Ohio St., 606.
    It is well known that in order to avoid waiver of error, the practice in the federal courts as well as our own, in cases where the right of removal of causes from state courts to federal courts has been wrongly denied, is never to proceed to trial upon the merits in the state courts after Such denial and before the proceeding in error for reversal has been disposed of, except under protest and exception. Removal cases, 100 U. S., 457; Railroad Co. v. Mississippi, 102 U. S., 135; Pacific R. R. Co. v. Ketchum, 101 U. S., 289; Hadley v. Dunlap, 10 Ohio St., 1.
    That proof of the acts of waiver, additional to those contained in the record, is properly brought before the court by the answer of defendant in error, is shown by the decision in Collins v. Davis, 32 Ohio St., 76, before cited.
    Our contention is that Revised Statutes, section 5033, vests judicial power and discretion to determine whether plaintiff’s affidavit is “sustained” by the “affidavits of five credible persons.” State ex rel. v. Wilson, 12 O. C. C., 636 ; 7 Circ. Dec., 17; Snell v. Cincinnati Street Railway Co., Com. Pleas Court, 2 S. & C. P. Dec., 669; Wright & Sauer, Admr., v. Cincinnati Street Railway Co., 4 O. N. P., 252; 7 S. & C. P. Dec., 19; Stermer v. The Cincinnati Street Railway Co., Superior Court, 5 N. P. Rep., 419.
    These are decisions, it is true, of courts inferior to this court. They are the only decisions upon the statute in question which we have been able to dnd. "We offer their reasoning.
    The logic of these decisions that there is discretion in the respect mentioned is that the belief or charge on the part of the plaintiff that he can not have a fair and impartial trial in the county, is issuable ; for otherwise the mere presence of five affidavits of as many residents, stating bare conclusions, would operate as an imperative mandate upon the court.
    This discretion can not be exercised unless the sustaining affidavits contain facts from which the court itself, instead of affiants, can deduce conclusions as to whether or not such a trial can be had. Facts of a probative or evidential nature are • the essential conditions precedent upon which any hearing and determination can take place.
    Indeed the ordinary meaning of' the words “sustained” and “credible” imports the necessity to produce facts from which the court itself may determine the correctness of the conclusion stated in the plaintiff’s affidavit. Anything less than this would make the repetition of a conclusion its only test of correctness. This is a contradiction of judicial discretion and determination. Can it be that the court is bound to accept affidavits of interested counsel as the affidavits of credible persons ?
    We shall derive aid here from the federal statutes and decisions concerning removals of certain cases from state courts to federal courts wherever it is “made to appear” that “from prejudice or local influence” justice can not be obtained in a state court. Carson & Rand Lumber Co. v. Holtzclaw, 39 Fed., 885; In re Pennsylvania Co., 137 U. S., 451; Mechanics' and Traders' Bank v. Loucheim, 8 N. Y., Supp., 520.
    It is said, our interpretation would make section 5033 the same as section 5032. But examination will show that the act from which section 5033 was derived was passed prior to the passage of the acts from which section 5032 came. The first one was passed April 24, 1852, (50 Ohio L., 100). The acts upon which section 5032 is founded were passed March 11, 1853 (51 Ohio L., 65), and February 10, 1857, (54 Ohio L., 10), respectively. The inevitable conclusion to be drawn from this legislation is that the first act was not broad enough to meet the needs expressed in the later acts. The first act authorized a change of venue only where a corporation having more than fifty stockholders was a party, no matter whether a fair and impartial trial could be had or hot in the county. Thus broadening the legislation at a later period does not warrant a conclusion that the later acts were designated or intended to change the meaning or purpose of the first act. And it would be a strange claim to urge that the first act should receive a different construction from that which its language imports, simply because the later acts were passed.
   Williams, J.

The application for the change of venue was made in this case under section 5033, of the Revised Statutes, which provides that: “When a corporation having more than fifty stockholders is a party in an- action pending in anjr county in which the corporation keeps its principal office, or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court shall change the venue to the ad jacent county most convenient for both parties.” By the preceding section general provision is made for change of venue in all cases, “when it appears to the court that a fair and impartial trial cannot be had in any county where the suit is pending. ’ ’

It is urged at the outset that section 5033, is in violation of both the state and federal constitutions, because, it is said, it applies an exceptional rule for the change of venue in actions against corporations within its descriptive terms, different from that applicable to parties in other actions, and one not equally applicable to both parties in the same action, and thus denies such corporation the equal benefit and protection of the law, aud remedy by due course of law. We are unable to adopt that view. It has never been regarded as essential to the validity of remedial procedure that it should be applicable in all of its provisions to all persons or parties, alike. Different situations and conditions often render appropriate and necessary different provisions, the necessity or propriety of whieli rests largely in the legislative discretion. And, as corporations exist, and hold, or exercise their powers and franchises only under favor of the state, they are subject to all reasonable regulations which the legislative body may deem it proper to prescribe, from time to time, with respect to the places where they may sue and be sued, and changes in the place of trial, though these regulations be different from those applicable to individuals, or different for different classes of corporations, or for different conditions of corporations of the same class. Distinctions of this nature have not been infrequent since the adoption of the present constitution. Generally, actions against individuals must be brought in the county where the defendant resides or may be personally served with process; and generally, actions against corporations are required to be brought in the county in which the corporation is situate, or has its principal office or place of business, or an office or agent; while insurance companies may be sued in any county where the cause of action or any part of it arose, a mining’ corporation in any county in which it owns or operates a mine, and a railroad company in any county into which the road runs. Of a like nature are regulations for changes of venue. They are designed to secure to parties a fair and impartial trial of their causes, which is the ultimate and highest purpose of judicial proceedings ; and the extent to which such regulations may go, for the accomplishment of that purpose, is addressed toa sound legislative discretion, in view of the nature of the case to be provided for, and the probable conditions likely to arise.

In the enactment of this statute, the legislature, no doubt, was impressed with the belief that corporations with many stockholders and emploj^es, might possess such widespread local influence where their business is carried on, that it would operate to the prejudice of the opposite party in a trial in that locality; and it is but a natural inference from the absence of a provision for a change of venue on the application of the corporation where the opposite party is not a corporation of the same kind, that such provision was deemed unnecessary, since, in that case, a change would not be desired by the corporation, as it would be to its interest to have the trial in the county where its influence prevailed. Where, however, both parties to, the action are corporations of the kind referred to in the statute, either is entitled to a change of venue upon complying with its provisions, so that, the statute operates uniformly upon all parties in the same situation. In neither case, however, is any party deprived of the equal protection of the law, for each is assured of a fair trial, with equal opportunities to establish and enforce his rights; nor is the remedy by due course of law denied, because in the forum, to which the cause is removed, the trial is conducted in the same way, under the same mode of procedure, as in that from which it was changed, with all’ remedial rights of the parties unimpaired. The only complaint is that the trial will be attended with some inconvenience and additional expense; but in that respect both parties are equally affected, and must necessarily be so in any change of venue for any cause; and the objection is, we think, insufficient to annul a statute, otherwise unobjectionable, which, in the legislative estimation, was demanded in order to secure the impartial administration of justice. The principle of this statute is closely analogous to that of congressional legislation relating to the removal of causes from state to federal courts by which, in a suit between a citizen of a state in which it is brought and a citizen of another state, the latter only is authorized to have the cause removed to a federal court. The right is not given to the former, as remarked in Dillon on the Removal of Causes, page 14, “because it was not supposed that he would have any grounds to object that he was sued in the courts of his own state.” The validity of such legislation is well established.

This statute imposes no penalty or burden upon one suitor or class of suitors from which others similarly situated are exempt, as did the statute held invalid in Coal Co. v. Rosser, 53 Ohio St., 12; nor does it affect any right of property of some owners differently from others in the same sitúation, as did the act declared unconstitutional in State v. Ferris, Ibid, 314. In the first of those cases the act was held invalid because it exacted an attorney fee from a class of defendants to which parties in no other class of actions were subject; and in the other case the law failed because it laid a burden in the nature of a tax, unequally upon property. The principle of those eases does not apply here.

In giving construction to the statute, it is claimed in support of the judgments below, that to make a case for a change of vénue, the affidavit of the party who makes the application, and those of thefive persons filed to sustain it, must each contain a statement of the facts on which the affiant founds his belief that a fair trial Gannot be had in the county, in order that the court may determine whether satisfactory grounds of such belief are shown; and, that, in passing upon that question, as well as upon the credibility of the affiants, the court is clothed with a discretionary power to grant or refuse the application. That construction, it is obvious, would add materially to the statute, for it contains no requirement that the affiants shall show grounds for their belief that are satisfactory to' the court, nor state any grounds therefor. It is the existence of their belief when stated in the affidavits,. and not the existence of reasonable grounds for the belief, that fixes the right of the party to a change of venue in eases mentioned in the statute. It is, therefore, sufficient for the applicant to state in his affidavit that he. “cannot, as he believes, have a fair and impartial trial” in the county; and, the application is “sustained” within the purview of the statute, when there is also filed the affidavits of five credible persons residents of the county who state therein that they each entertain the same belief. When this is done, it is made the imperative duty of the court where the action is pending to ‘‘change the venue to the adjoining county most convenient for both parties.5 ’ There is no discretion, in this respect, lodged with the court; and the statute was purposely made so, for otherwise its effect would practically be the same as the preceding section, and it would avail nothing. If an attack be made upon the character of the affiants truth, the court must determine whether they are credible persons,and unless found to be so, the application may be denied. But in the absence of such attack, their credibility is presumed, and testimony in their support is neither required nor admissible. So, the application should not be granted unless the action be one that is within the' terms of the statute, that is, an action in which “a corporation having more than fifty stockholders is a party,” and is pending in the county where “the corporation keeps its principal office or place of business.” The statement of these facts in the affidavits is open to controversy, and when put in issue the burden is on the party making the application to establish them. But the statement of the affiants’ belief is not issuable. The affidavits filed in support of the plaintiff’s application were in due form, and sufficient in substance; and being uncontroverted, the plaintiff was entitled, of right, to have the venue changed to an adjoining county.

It remains to inquire whether, as contended in behalf of the defendant, the plaintiff’s right to prosecute error to the circuit court was barred or waived. This contention is based upon the claim that the order overruling the application was a final order in a special proceeding from which error should have been prosecuted within the statutory period after the order was made. That period had elapsed; but the proceeding in error was commenced within the required time after final judgment was rendered in the case. It seems clear the order was not one made in a special proceeding. The application was made in a pending civil action, and was one authorized to be made in such an action. It was a step taken in that action preliminary to its trial, and one which, to be of any avail, it was necessary should be taken before the trial. It was proper to save an exception, as was done, to the overruling of the application, and take a bill of exceptions to properly preserve the question thus raised, upon the record. The order, nevertheless, was but an interlocutory one in the progress of the case, which could not be made the foundation of an independent proceeding in error, but was properly reviewable on error prosecuted to the final judgment. And, for this reason, the plaintiff did not waive the error in the overruling of his application, by thereafter submitting to the trial of the action without objection. There was nothing else to be done except to dismiss the action; for until final judgment he could not have the error corrected, or be restored to his right to have his "change of venue.

With respect to the position advanced in argument that the plaintiff’s right was barred by a previous denial of a similar application to which no exceptions were preserved, it is enough to say, the record is insufficient to present the question. It does not appear upon what grounds the former application was made, or denied, nor whether it was made under this statute or the preceding section. Nor, was any objection made to the second application, or its consideration by the court. From the fact that the court entertained this application, considered and acted upon it without objection of any kind, it may safely be presumed that it was made upon different grounds, and, that there were sufficient reasons why the court should allow it to be filed, and pass upon it, and give the plaintiff opportunity to save the question by bill of exceptions.

Judgment of the circuit court, and of the court of common pleas reversed, and cause remanded to the common pleas with directions to grant the change of venue.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    State ex rel. Wilmot et al. v. Buckley et al.

      Election laws — Board of elections — How constituted — Section %9%6b Revised Statutes — Requirement of uniformity of operation— Invalidity of Act of April 16, 1896 — Effect of failure ofiepealing act — Section 6786 Revised Statutes — Constitutional law.

    1. When an act of the general assembly, required to have uniform operation throughout the state, expressly excepts from its operation one or more cities or counties, such act by reason of such exception is unconstitutional and void.
    2. Such an exception can not be held invalid and thereby extend the act over the excepted territory, because in such a case the general assembly never enacted the statute in such territory, and the court has no power to enact it therein.
    3. Section 29265, 92 O. L., 166, Revised Statutes, excepts from its operation the city of Mansfield and cities of the fourth grade of the first class and is therefore unconstitutional.
    4. The said section being inoperative, the repealing section contained in the same act is also inoperative, and this leaves said section 29265, as amended April 28, 1890, 87 O. L., 359, in force.
    5. While the election laws for cities may be valid under the doctrine of classification, that doctrine does not extend to counties, and election laws for counties are required to have uniform operation throughout the state.

      6. In view of this holding, it is the duty of the state supervisor of elections to appoint deputy state supervisors under the statute, for the territory in each county lying outside of any city in such county.
    7. The three years statute of limitations in section 6789 is for the protection of an officer who is in office under an existing commission, and he can not tack a former term of office to his present term, so as thereby to bring himself within the limitations of that section.
    8. The three years limitation under that section is only for the protection of officers, and not for the protection of boards as distinguished from the officers composing them.
    (Decided May 9, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    The petition of the plaintiff below is as follows:
    “Theodore E. Strimple, prosecuting attorney of the county of Cuyahoga and the state of Ohio, on the relation, of E. P. Wilmot of the township of Chagrin Falls in the county of Cuyahoga, and state of Ohio, and of George P. Kurtz of the city of Cleveland, in the county of Cuyahoga and state of Ohio, who are both citizens and electors of the county of Cuyahoga and state of Ohio, gives the court to understand and 'be informed that the defendants, Hugh Buckley, Charles P. Salen, Edward Etzensperger and Edward C. Kenney, under the claim that they constitute the board of elections of the city of Cleveland, are usurping and intruding into the office of appointing -registrars of elections, judges and clerks of election, and other clerks, officers and agents in and about elections, and of designating the ward or precinct in which such judges and clerks shall serve; and of appointing the place of registration of electors and the holding of election in each ward and precinct in Cuyahoga county; and of providing and furnishing ballot boxes to be used at elections, and all books, blanks and forms for the registrations and elections in said county; and of issuing notices, advertisements and publications with respect to election; and of making rules, regulations and instructions for the governing and guiding of registrars of election and judg’es and clerks'*of election, and of dividing, defining and proclaiming tbe election precincts jin said county, and generally, under tbe said claim that they constitute tbe said board of elections of the city of Cleveland, of performing and exercising, throughout the county of Cuyahoga, the duties and powers vested by law in the deputy state supervisors in and for said county. Said defendants are so as aforesaid doing the things aforesaid and assuming the authority and powers aforesaid without legal right, in this, that there is no authority in law for said doings and assumptions.
    Wherefore the relators pray that the said defendants be required to. answer by what warrant they claim to have, use, exercise and enjoy said office aforesaid, and that they be adjudged to be so acting and assuming authority without authority of law, and that they be ousted and altogether excluded from said office, and that the relators recover their costs.”
    The answer is as follows :
    “Now come the defendants and make answer to the petition herein, and show to the court by what warrant they lawfully constitute the board of elections of the city of Cleveland, and by what authority they exercise the powers and do the things complained of in the petition, by the denials and allegations following’:

      First Defense — The said city of Cleveland, situate in said county of Cuyahoga, is, and for more than ten years has been a city of the first class, second grade. On the thirty-first day of March, 1891, and for a considerable time prior thereto, W. M. Bayne, Victor Gutzweiler, J. H. Schneider and the defendant Hugh Buckley, constituted the board of elections of said city, having been theretofore appointed thereto by the governor, pursuant to section 29265 of the Revised Statutes of Ohio. On said thirty-first day of March, 1891, said J. H. Schneider resigned his office as a member of said board, and one P. W. Rice was duly appointed a member of said board, for and during the unexpired part of the term of said Schneider, the first day of June, 1892, the terms of said Bayne and Rice expired, and they were re-appointed to their said office. On the twenty-ninth day of May, 1894, the terms of said Buckley and Gutzweiler expired, and said Buckley was re-appointed, and one Carl Clausen was appointed to the said office. On the third day of June, 1896, the terms of said Bayne ani Rice expired, and the defendants Edward Etzenspergér and Edward C. Kenney were appointed to the said office. On the sixth day of June, 1898, the terms of said Buckley and Clausen expired and said Buckley was re-appointed and the defendant Charles P. Salen was appointed to the said office.
    Each of said appointments, made on and since March 31, 1891, was made by the mayor of said city, and was made pursuant to, and by virtue of an act of the General Assembly of the state of Ohio, entitled ‘ ‘ An act to amend section 29265 of the Revised Statutes, as amended April 13, 1889 (86 v. 281, 282), ” passed April 28,1890, and found in 87 O. L., 359, and subsequent amendments thereof, including an act entitled “An act to re-enact and amend section 29265 of the Revised Statutes of Ohio, and to enact supplementary section 2926&-1, and to re-enact and amend section 2926i of the Revised Statutes, as amended April 13, 1889, as amended April 28, 1890,” and found in 92 O. L., 166, passed April 16, 1896. Each of said appointees all the while was, and each of these defendants when appointed was, and still is an elector of said city and county, and was, and still is eligible to the said office ; and during all the time aforesaid, two members of said board have belonged to each of the two leading political parties.
    At the times of their appointment, and continuously since, two of these defendants belonged to the Republican party and two to the Democratic party, which parties are and all the while have been, the two leading political parties in said city, in said county, in the state of Ohio, and in the United States; and no one of said appointees, including these defendants, at the time of his appointment, or while a member of said board, held any other office under the United States, or the state of Ohio, or the said city or county; nor was any one, at the time of his appointment, or while a member of said board, employed in any department of said city or county, or by any officer thereof.
    There has all the while been, and there ■ now is, a secretary of said' board, eligible and qualified, appointed by the members of the board; and each member of the board, and the secretary thereof, before entering upon the discharge of the duties of their respective offices, duly took and subscribed an oath to support the constitution and laws of the United States, and the state of Ohio, and faithfully to discharge the duties of their said offices, and to make their utmost endeavors to-secure fair and honest elections. All the appointments of members of said board, and of the secretaries thereof, and the qualification of persons so as aforesaid appointed, and the organization of the board from time to time, have been in strict conformity to the statutes relating- thereto.
    These defendants, constituting, as aforesaid, the board of elections of the city of Cleveland, have exercised and are now exercising the powers conferred upon them as such officers, and have done and performed and are now doing and performing the acts required of them as such officers, and have discharged and are now discharging the duties imposed upon them as such officers, pursuant to and under authority of the following statutes, enacted by the general assembly of the state of Ohio, to-wit:”
    After citing the election laws of the state, including the act of April 28, 1890, 87 O. L., 359, and the act of April 16, 1896, 92 O. L., 166, and by a general averment, including section 3 of the act of April 21, 1898, 93 O. L., 364, the answer continues as follows:
    “All amendments and supplements of the foregoing acts, and all other laws relating to the powers and duties of boards of elections in Ohio.
    Since the creation and organization of the said board of elections, the g-eneral assembly of the state of Ohio has, by the enactment of all the laws aforesaid, and by numerous other enactments, recognized the valid existence of the said board, and has rendered its continued existence indispensable to the conduct of elections, and to the exercise of the constitutional right of electors to vote in said city and county under the existing laws of the state.

      By reason of the facts aforesaid, the board of elections of the city of Cleveland is a valid and constitutional board, and at the time of the commencement of this action these defendants were, and now are, rightfully and lawfully members of, and together constitute, the said board, with the right to hold and enjoy their said offices, 'and with full authority to exercise all the powers, and perform all the duties, thereunto belonging.

      Second Defense — Defendants make their foregoing first defense part of this defense; and they further say: From said thirty-first of March,
    1891, continuously hitherto, by virtue of the laws aforesaid, and of the successive appointments aforesaid, the said persons so as aforesaid appointed members of said board of elections, including these defendants, have, in the order of succession aforesaid, been members of, and together have constituted, the board of elections of the city of Cleveland; and they have, during all the time aforesaid, exercised the powers, and performed the duties conferred and imposed by law upon the board of elections of said city.
    During all the time aforesaid, the persons so constituting said board, and including these defendants, and acting as such board of elections, and under the laws aforesaid, have had, and now have, the exclusive charge, supervision and control of all matters and things pertaining to the registration of electors, and the direction, conduct and management of elections, within said city; and as such board of elections, and under the laws aforesaid, they have — and continuously since April 30, 1891, have had — the exclusive charge, supervision and control of all matters and things pertaining to the direction, conduct and management of elections within the election precincts of said Cuyahoga county that are not included within said city.
    During the times aforesaid, all the acts, facts, doings and proceedings aforesaid, and the exercise of the authority and powers aforesaid, were, by these defendants and their predecessors in office, done openly and publicly, and under claim of legal and official right so to do; all of which was all the while well known to, and acquiesced in by, all the electors within said city and county, including the relators herein, and the said Theodore L. Strimple, ■as prosecuting attorney of said county, and his predecessors in his said office.
    Wherefore, defendants say that the right of action stated in the petition did not accrue within three years next before the commencement of this action; and that this action to oust these defendants from their said office was not brought within three years after the alleged cause of such ouster arose. ”
    There was a third defense in the answer which was withdrawn on the hearing in this court.
    The plaintiff interposed a general demurrer to each defense. The judgment of the circuit court is as follows:
    “This cause came on to be heard upon the demurrer of the plaintiffs to each defense in the answer, and the court, upon due consideration, finds that the said demurrer, as to the second and third defenses is well taken and sustains the same, to which ruling the defendants except and as to the first defense, the court finds the demurrer not well taken, and overrules the same, to which ruling the plaintiffs except, and none of the parties desiring to further plead, the defendants move the court for judgment for the defendants dismissing the petition which motion is overruled, to which ruling and refusal of the court to enter such judgment the defendants except. And therefore the parties submit the cause to the court for judgment upon the pleadings. On consideration whereof, the court finds that the defendants have no right or authority to act as a board of elections, or to exercise any power as such, within those parts of Cuyahoga county which lie outside of the city of Cleveland, but that they have full right and authority to exercise their said office of board of elections within the said city. It is therefore considered, ordered and adjudged that the said defendants be and they hereby are, ousted and altogether excluded from the said office of board of elections, and from all the authority, franchises, privileges and emoluments thereof in so far as the exercise of such office relates to those portions of said county situate and being outside of the limits of said city, and that they be not ousted from their said office, or from any of the authority, franchises, privileges or emoluments thereof, within the said city; and that the plaintiffs pay the cost of this action to be taxed. The plaintiffs except to the said decision, finding, holding and order that the defendants are entitled to hold and exercise their said office within the said city of Cleveland, and refusing to oust them therefrom,- and the defendants except to the said decision, finding and holding that the defendants have no right or authority to act as a board of elections, or to exercise any power as such within' those pants of Cuyahoga county outside of the said city of Cleveland, and to the said order and judgment so as aforesaid ousting them from the exercise of their said office within such parts of said county, and from all the authority, franchises, privileges and emoluments thereof, in so far as relates to those parts of said county.”
    Thereupon the plaintiff below filed a petition in error in this court, seeking to reverse so much of said judgment as is in favor of the defendants below, and said defendants below filed a cross-petition in this court seeking to reverse so much of said judgment as is in favor of said plaintiff below.

      Francis J. Wing and Charles F. Pennewell, for plaintiffs in error.
    The law does not have a uniform operation throughout the state, and violates section 26, article 2 of the constitution of Ohio.
    This provision of the constitution is mandatory. State v. Kelley, 6 Ohio St., 269; Exp. Falk, 42 Ohio St., 638; State ex rel. v. Ellett, 47 Ohio St., 90; Costello v. Wyoming, 49 Ohio St., 208.
    The doctrine is well settled as announced in the above citations.
    The character of a law as to its being general or local is determined by the character of its subject-matter. Hixon v. Burson, 54 Ohio St., 470; State ex rel v. Davis, 55 Ohio St., 15; Cincinnati v. Steinkamp, 54 Ohio St., 284; Gaylord et al. v. Hubbard, 56 Ohio St., 25.
    Our Supreme Court has had before it many times the question as to what is a subject of a general nature, and has been called upon to decide question’s whether laws of a general nature and not operating uniformly throughout the state violate section 26, article II of the Constitution of this state. Leidy v. Grove, 53 Ohio St., 662; State v. Bargus, 53 Ohio St., 94; Karb et al. v. State ex rel. 54 Ohio St., 391; Commissioners v. Rosche, 50 Ohio St., 103; Legman v. McBride, 15 Ohio St., 573.
    But the law in question excepts from its operation ‘ ‘ Man sfield. ” “ Mansfield ’ ’ is the designation of certain territory in Ohio, of which the court will take judicial notice.
    Even though Mansfield should pass through all the grades and classifications mentioned in the act, the law. would never apply to it, and.for this reason, plainly, the law can never have a uniform operation throughout the state.
    It is idle to urge that the exception is invalid. State ex rel v. Baker et al., 55 Ohio St., 1.
    The law is in contravention of section 2, articlel, of the constitution, which declares that all political power is inherent in the people.
    By the law in question the boards of election are given authority to appoint judges throughout the county. They may appoint them without regard to their being residents of the precincts in which they are to exercise their office.
    The hoard is made the canvassing board of all the votes cast in the county at any election, whether special or general. 1 Revised Statutes, section 2926v;-l, p. 1553; 1 Revised Statutes, section 2966-53, p. 1585.
    The members of the board are appointed by the mayor of the city of Cleveland.
    The mayor of the city is elected only by the votes of the electors of the city. As a consequence, the citizens of the county not included within the limits of the city are governed by the votes of the electors of the city alone, without themselves having any voice whatever in so important a matter. This is depriving the electors of the county, outside of the city, of political power.

      Again the law in question, for the reasons above stated, also contravenes section 4, article 4 of the constitution of the United States, which guarantees to every state a republican form- of government. It is only necessary to magnify the subject to appreciate this suggestion. Fox v. McDonald, 101 Ala., 51. Madison in the Federalist, Hamilton’s edition of 1880, No. 39, 302-303.
    The defendants in this proceeding commenced to exercise the powers conferred upon them under their appointment less than three years before this action was commenced. Section 6789, Revised Statutes.
    The right to hold the office by the four defendants and each of them arose less than three years ago. We are asking that these four persons be ousted from the board of elections because they have no right lawfully to hold.
    This is not a case where one person seeks to get an office which another holds and to which the first person claims the right, but it is an action to oust persons from holding an office which the law does not allow them to hold, and which, the law does not allow to be created.
    We could not commence action against these defendants until they got into the office, two of them June 3, 1896, and two of them June 6, 1898. We are proceeding against these defendants because they hold these offices unlawfully, and not simply because the office is an unlawful one. If the office was not filled there would be no occasion to proceed in quo warranto. The defendants file a joint answer as individuals and not as a board.
    The limitation could not commence to run until the right of these defendants now before the court, arose. The right of Etzensperger and Kenney arose June 3, 1896.
    The right of Buckley and Salen arose June 6, 1898. State ex rel. v. Robinson, 7 C. C., 152; s. c. 3 Circ. Dec., 703.
    If they are assuming to exercise and enjoy the offices which they now fill without authority of law, they should be ousted, and the purpose and motive of the relators or the influence which operated upon them in commencing these proceedings and in seeking to turn the defendants out of the places which they have no right to occupy cannot bar or estop them from asking the court to exercise its power to remove them from an office which the defendants have no lawful right to fill. People v. Milk Exchange, 145 N. Y., 267; State v. Sharp, 27 Minn., 38; State v. Leary, 67 Mo., 89.

      Miner G. Norton and George L. Phillips, for defendants in error.
    The popular notion is, that in a popular form of government, the right to vote is a natural right, like the right of life or liberty; and that the primary object of government is, universality of the electorate. The legal view is very different. The right to vote is not a natural right, nor is it an absolute or inherent right — a right that may be reserved in a bill of rights. In this country, the right to vote is derived from the political society— the government, and is conferred by state constitutions and statutes. It is a right conferred as a means for the perpetuation and for the betterment of the government, and is to be exercised for the public benefit, rather than for the benefit of the individual. The right to vote is not necessary for the protection of one’s person or property, for females and infants are as much protected in their persons and property as are the electors of the Commonwealth. This right is regulated by the states, and by each state for itself; and the power of the states is perhaps unlimited, except by the fifteenth amendment to the national constitution, which forbids any distinction on account of “race, color or previous condition of servitude.” In some states, contributing to the support of the government, by the payment of taxes, is made a condition precedent to the right to vote; in some states, women are allowed to vote; and so the conditions vary in different states. And the people of the state, in a political sense — the body politic, are the voters — those who are entrusted with the political power. McCrary on Elections, 3; State ex rel v. Dillon, 32 Fla., 545; Blair v. Ridgely, 41 Mo., 63; Friezleben v. Shallcross, 9 Hous. 1, 59, McKune v. Weller, 11 Cal., 49; 16 Alb. Law Journal, 272.
    In Ohio, the right to vote is conferred by the constitution, upon a class of persons having certain qualifications of citizenship, age, sex and domicile and comprising about one-fifth of our population. (Article V, section 1.) The constitution does not undertake to regulate the exercise of this right, further than to provide that all elections shall be by ballot, that convicted criminals may be excluded from voting, that soldiers and sailors shall not be considered residents of the state where stationed, and that idiots and insane persons shall not vote.
    Here, now, is the solution of this whole matter. The conduct of elections belongs to the state, and the election officers are not county, township or precinct officers, but they are the agencies of the state, appointed and commissioned to conduct the state’s business; and it is the right and duty of the state to adapt its agencies to the differing needs of different localities, just as it does in the valuation of property for taxation. And for convenience, the state provides its agencies in districts — sometimes adopting counties, or municipalities, or it might subdivide or combine any of these. The adaptation of agencies becomes a matter of locality. Only special laws can be so adapted. General laws could not be adapted to localities, and would not meet the requirements of the situation. In such case, the legislature is called upon to exercise its wisdom and discretion, and its action is not reviewable by the courts. Election laws, so far as they affect the right to vote, are of a general nature; but so far as they only regulate the exercise of that right, they relate to the machinery of government rather than to the protection of rights, and for that reason may be, and generally are, special laws. Coffin v. Election Comrs., 97 Mich., 188; Comm. v. McClelland, 83 Ky., 686; State v. McCann, 21 Ohio St., 198; McGill v. The State, 34 Ohio St., 228; State v. Kendle, 52 Ohio St., 346; State v. Covington, 29 Ohio St., 102; Cooley Const. Lim., 129*, 496*; Ry. Co. v. Comrs., 1 Ohio St., 95; Wagner v. Loomis, 37 Ohio St., 571; Dagget v. Hudson, 43 Ohio St., 548; Capen v. Foster, 12 Pick., 485; Lehman v. McBride, 15 Ohio St., 573 ; The Election Statutes, passim; Pearson v. Stephens, 56 Ohio St., 126.
    The right of suffrage, being conferred by the state, for the public benefit, and the regulation of its exercise belonging to the legislature, it follows, that any regulation thereof that does not relate to or affect the right, but affects only the economy and convenience of the governmental control thereof, does not fall within the purview of Article II, section 26, of the Constitution. And when the legislature, in the providing of governmental agencies, is confronted by varying conditions, there is occasion for the exercise of judgment and discretion in the selection of . methods and agencies, and this discretion is not reviewable by the courts. 21 Pa. St., 162; Const. Lim., 129*; 21 Ohio St., 211; 1 Ohio St., 95; 43 Ohio St., 558.
    It is settled by repeated decisions of this court, that subjects of legislation, both persons and things, may be classified upon any just basis of classification, and that legislation limited to any class so formed is to be regarded as general; and when a law, so limited, relates to, and operates alike, upon all the individuals of the class, it has the uniform operation required of general laws, by Article II, section 26, of the constitution. State v. Powers, 38 Ohio St., 54; Adler v. Whitbeck, 44 Ohio St., 539; Senior v. Ratterman, 44 Ohio St., 661; State v. Parsons, 40 N. J. L., 123.
    If the exception of Mansfield and Canton, in Revised Statutes, 29265, is unauthorized, the exception should be disregarded and the residue of the act sustained. Bank v. Hines, 3 Ohio St., 1; State v. Commissioners, 5 Ohio St., 497; Railroad v. Commissioners, 31 Ohio St., 338; Rowles v. State, 37 Ohio St., 35; State v. Frame, 39 Ohio St., 411; State v. Brewster, 39 Ohio St., 653; Treasurer v. Bank, 47 Ohio St., 503; State v. Baker, 55 Ohio St., 1.
    Where an amendatory and repealing act is a substitute for the law so repealed, and the body of the act is unconstitutional, the repealing clause is ipso facto inoperative, and the old law remains in force. Gorman v. Bepler, 4 N. P., 241; 7 O. D., 15; Whitney v. Gill, 15 C. C., 648; s. c. 8 Circ. Dec., 450; Blair Brick Co. v. Waltz, 15 C. C., 718; s. c. 8 Circ. Dec., 742; State v. Smith, 48 Ohio St., 211; 41 Bull., 124; 23 Am. and Eng. Encyc., 476; 35 Barb., 265; 3 Gray, 476; 18 Iowa, 261; 6 Wis., 605; 11 Wis., 51; 22 Kan., 489; 7 Colo., 230; 20 Fed. Rep., 411; 14 Mich., 285; 121 Ind., 514; 36 N. Y., 449; 14 Nev., 202; 38 N. J. L., 320; Suth. Stat. Interp., 175, 176; Endlich on Inter. of Statutes, 192.
    In this case it is perfectly clear and demonstrable that the legislature would not, by the act of 1896, have repealed the act of 1890, without providing, as they attempted, a substitute for the act of 1890; if the substitute falls, the incidental provision for the repeal of the prior law falls with it. In such case, acts done under the unconstitutional law are justified by the old law, if within its provisions.
    It is claimed that section 2926w-l, as amended April 18, 1892, (89 O. L., 429), and again in 1898 (93 O. L., 361), is - unconstitutional. This section is section 1 of an act passed in 1889 (86 O. L., 258), when it was limited to counties having a city of the first class, first grade, and amended in 1891, (88 O.L., 468), so as to embrace all counties having a city of the first class, and amended again in 1892, and amended into its present form in 1898. It now embraces the counties of Hamilton, Cuyahoga, Lucas and Franklin; and deputy state supervisors are expressly abolished in those counties.
    Much that has been said as to section 2926b is as well applicable to this section, and we dismiss it with a single additional suggestion.

      The subdivision of the state for election purposes — of which divisions the precinct is the unit, —like the subdivisions for taxation and for school purposes, is merely a matter of convenience in the adaptation of agencies in carrying out the details of governmental duty. State v. Hine, 59 Conn., 50; State v. Shearer, 46 Ohio St., 275 ; 39 Ohio St., 658.
    The second defense is a plea of the statute of limitations.
    Statute 6789 applies, even against the state. 49 Ohio St., 137; State v. Gran. Alex. Soc., 11 Ohio, 1; State v. Beecher, 16 Ohio, 358 ; 44 Ohio St., 595.
    If it be said that the resignation of a member of the board, or the expiration of his term, makes a hiatus, and interrupts the running of the statute, so that the statute must always begin anew with each succeeding member, we answer, that when the statute has commenced to run, even the death of the person liable to suit will not interrupt it. Where time begins to run against the ancestor, it will continue against the heir, even though he be under disability, 1 Ohio St., 478; 38 Ohio St., 373; and it will continue against an executor or administrator, though a hiatus of years should intervene. Ang. on Lim., section 56; 6 Ohio, 35.
    Where an office is to be filled by but one person, the death or retirement of the single incumbent makes a vacancy in the office.. Mecham on Pub. Officers, 442; but where the office is to be filled by a board, the death of one member creates a vacancy in the board, but not in the office. In such case, the policy of the law being to guard against the failure of the public service, the survivors constitute the board, and may execute the office, and may, of course, be ousted in quo warranto.
      Mecham on Pub. Officers, 443; 52 N. Y., 54. And, a fortiori, the mere retirement of a member,whose place is eo instanti filled by his successor, makes no hiatus, either in law or in fact.
    Where townships were organized under a statute, and have for many years been recognized by the various state and local authorities, the validity of the law will not be inquired into. People v. Maynard, 15 Mich., 463.
    In Ohio, where a school district had been recognized for twelve years, the Supreme Court refused to inquire into the constitutional validity of the law under which it was created. Clark v. Board of Education, 44 Ohio St., 595; Cf. Society v. Pawlet, 4 Pet., 500; People v. Flanagan, 66 N. Y., 237; State v. Society, etc., 11 Ohio, 1; Tone v. Columbus, 39 Ohio St., 281.
    The power to appoint may be conferred upon anybody. The reason that it is generally conferred upon an officer is, to insure perpetuity of the appointing power. But this is not at all necessary, for it is held, that, ‘ ‘the authority and duty of appointing others to office, of themselves constitute the person vested with that authority and duty a public officer; and it is immaterial that such person is not designated as an officer, and (that he) takes no oath, and receives no fees.” Mecham on Pub. Officers, 11; State v. Stanley, 66 N. C., 59; State v. Kennon, 7 Ohio St., 546; Cf., 29 Ohio St., 102; 42 Ohio St., 437.
    The power to appoint city boards of election was formerly conferred upon the governor. (Section 2926b, in 86 O. L., 282.) Under the original Ballot Law, of 1891, the probate judge appointed the county boards of election. 88 O. L., 449, section 3; 48 Ohio St., 505. Deputy state supervisors are now appointed by the secretary of state; and they would be here, if this board should be ousted. Revised Statutes, 2966-3.) In Cleveland, members of the board of park commissioners are appointed by the commissioners of the sinking fund; and these commissioners appoint their own successors, etc., etc. State v. Commrs., 54 Ohio St., 333.
    Brief of B. A. Harrison, for the board of elections in the city of Columbus, filed by leave.
    Statistics show, and it is a matter of common knowledge, that there surround the cities of Cincinnati, Cleveland, Toledo and Columbus, extending from immediately beyond the corporate limits but within the county in which each of said cities is situated, á dense and migratory population. By reason, among others, of the tax rate within the corporation being larger than in the townships surrounding the cities, the adjacent territory is filled with factories, railroad shops, and industries of various kinds. Such are the means of - populating these localities, with inhabitants largely transitory and migratory, that by their density many localities are as to numbers and mode of life urban and not rural. Such localities present the same conditions and afford the same opportunities for perpetrating election frauds as exist in large cities, and the same necessity exists there for a stringent election system that exists within the corporate limits of such cities.
    The facts above stated are historical facts of common knowledge, of which judicial notice will be taken.
    But if this were not so, a legal presumption would come into operation in support of the valid-y of the legislation in question, namely: If a legislative act 'may or may not be valid according to circumstances, courts are bound by the plainest principles of exposition, as well as a just deference to the legislature, to presume the existence of those circumstances, which will support it and give it validity. Willington et al., v. Petitioners, 17 Pick., 87.
    This is a well settled rule. Morgan v. Monmouth Plank Road Co., 26 N. J. Law, 109.
    It will be noticed that neither of the acts in question affect any right or privilege of any qualified voter. On the contrary, the end sought by each act is the support of the privilege of free suffrage, which involves the rigid and certain exclusion of those not entitled to vote, as well as the protection of those in the exercise of the privilege who are.
    It is the duty of the general assembly, under the constitution of the state, to provide by law for free and equal elections. Such elections are certainly not such as may be secured by the indiscriminate exercise of the right of suffrage, without regard to qualifications or regulations necessary to establish and determine the rights of those who offer to vote. Nor can elections be considered free and equal when in a portion of the state they may be conducted under the law comparatively free from the influence of force and fraud, while in another portion, for the want of more suitable and effective regulations than are provided for the county districts and small cities and villages, the timid and weak are deterred by violence and tumult from attempting to vote, the illegal votes are cast and returned, and legal votes are not counted or not properly and honestly returned. Prom necessity, other and more effectual regulations are required in. cities and counties containing a dense and migratory population than are required elsewhere or the majority of the people of the state would probably be willing to adopt. Hence such effectual regulations must be provided for such cities and counties in order to secure therein such elections as are contemplated by the constitution. Commonwealth v. McClelland, 83 Ky., 687.
    Such a classification of cities and counties is manifestly neither unjust or unreasonable, and is founded upon adequate distinctions and differences between different cities and counties. The rule as to uniformity of laws of a general nature, merely requires that the law shall have a uniform operation upon the persons or things of any class upon whom or which it purports to take effect. Driggs v. State, 52 Ohio St., 36; The State v. Butts, 31 Kansas, 537; Railroad Co. v. Iowa, 94 U. S., 155; Costello v. Wyoming, 49 Ohio St., 210.
    We have said that officers of election, in their relation to the state, stand upon the same legal footing as officers of police. The cases concur in holding that the poLice officers are in fact state officers, and not municipal, although a particular oity or town be taxed to pay them. 1 Dill. on Mun. Corp., sections 33, 34, 773 and note 1; Butterick v. City of Lowell, 1 Allen, 172; Yaple v. Board of Police Commrs. of Cincinnati, 2 Ohio C. C. Rep., 406; s. c. 1 Circ. Dec., 557 (affirming by this court without full report, 25 Law Bull., 336); Bronson v. Oberlin, 41 Ohio St., 476; Hagerly v. The State, 55 Ohio St., 16; Western College v. The City of Cleveland, 12 Ohio St., 375; Wheeler v. The City of Cincinnati, 19 Ohio St., 22; Bowles v. State, 37 Ohio St., 35; Monroe v. Collins, 17 Ohio St., 687.

      It is contended that the first section of said act passed April 16, 1896, (92 L., 166), is invalid, because it excepts Mansfield and cities of the fourth grade in the first class, from its operation.
    1. This section does not confer upon the municipalities described therein any corporate power. It creates a state agency for the conduct of elections therein, based upon peculiar conditions, which do not exist in the strictly rural districts of the state. If, under such circumstances, it is competent for the general assembly to create special election districts, then it is competent for the legislature to describe such districts. We have seen that this court has determined that special taxing districts may be created. So far as this section excepts from its operation “cities of the fourth grade in the first class,’’ it is clearly unobjectionable. The object of providing grades in the different classes of cities, is to authorize legislation which may be necessary or appropriate for a particular grade or grades of a given class of cities which is not needed or appropriate for a different grade or grades of such class.
    2. But if either of said exceptions is invalid, because the legislature had no power to make it, the exception alone will be treated as invalid, and the class sustained. The State ex rel. v. Baker et al., 55 Ohio St., 1.
   Burket, J.

Section 29265, as amended April 16, 1896, 92 O. L., 166, provides among other matters as follows: “In all such cities of the first and second class, except Mansfield and cities of the fourth grade in the first class, a ‘ board of elections,’to consist of four electors of such city, of well known intelligence and integrity, two of whom shall belong to each of the two leading political parties, shall be appointed by the mayor.” As this law excepts the city of Mansfield and the cities of the fourth grade in the first class from its operation, it is not of uniform operation throughout the state, and therefore is in conflict with section 26 of article 2 of the constitution, the subject of elections being one of a general nature.

It is urged, however, that if this exception makes the act unconstitutional, the exception should be disregarded, and the act held valid as operating uniformly throughout the state. The answer to this is that the court has no law-making power, and cannot extend a statute over territory from which it is excluded by the general assembly. A court can hold a whole act unconstitutional because it is not broad enough, that is, because it is not of uniform operation throughout the state; but it cannot extend an act which is too narrow, so as to take in territory which was left out by the general assembly. In the case of an exception, the general assembly never-enacted the statute in the excepted territory, and the court has no power to enact it therein.

There is a difference between an exception and a limitation. When a statute upon a subject of a general nature is made to extend to the whole state in one part thereof, and then in another part an attempt is made to limit its operation to territory less than the state, the limitation may be disregarded; because to-give it effect would render the whole statute unconstitutional; and such construction should be given when reasonable, as will uphold the statute rather than one which would defeat it. Burt v. Rattle, 31 Ohio St., 116.

As this section, 2926b, as passed April 16, 1896, is unconstitutional and inoperative, the repealing-section of the act is also inoperative. State ex rel. v. Heffner, 59 Ohio St., 368; State ex rel. v. Smith, 48 Ohio St., 211, 219.

This leaves section 29266 of the act of April 28, 1890, 87 O. L., 359, in full force. It is urged that that section is also unconstitutional, for the reason that in one sense it operates only in cities, and not in those parts of the state lying outside of such cities. As in shown in Nelson v. State, 52 Ohio St., 88, the act operates, in theory at least, all over the state, because wherever a city may be built up, there the act will be found to be in full force and applicable to such city.

The validity of the section can only be maintained on the doctrine of the classification of cities, and there are some difficulties in the way of so maintaining it. But in view of the condition of the election statutes, and the necessity of more stringent means to prevent fraud, and secure fair elections in cities, and the fact that for more than forty years elections in cities have been conducted differently from those in rural districts, the one employing members of the council, and the other township trustees, we are constrained to hold the act of 1890 with its classification applicable to cities, as a valid enactment.

But | while such classification when applied to cities may be thus upheld, there is no authority for the classification of counties as to elections. As to subjects of a general nature, laws must have uniform operation, and they cannot be made to operate in some counties and be .excluded from others. State v. Bargus, 53 Ohio St., 94; Hixson v. Burson, 54 Ohio St., 470; Mott v. Hubbard, 59 Ohio St., 199; Kelley v. State, 6 Ohio St., 269.

It is urged, that as a board of education in a ■city may exercise its powers and perform its duties in territory outside of the city which is attached to the city district for school purposes, the city board of elections should in like manner be permitted to exercise its powers in territory outside of the city. The two eases are not parallel. The limits of the city and of the school district are not necessarily the same, and in fact usually are different. But the board of education is always confined in the exercise of its powers and performance of its duties to the school district, and it does not go outside-of the district and assume jurisdiction in outside territory. The statute, 93 O. L., 367, which provides that the. outlying election precincts shall be held and deemed as election precincts of the city, does not have the effect of bringing such outlying precincts within the city limits, and cannot make them a part of the city; while in school matters, the annexed territory becomes a part of the school district, and^ is embraced within its limits.

It therefore follows that the holding of the circuit court was right, and that while the city boards of'election may exercise their powers and perform their duties within the city limits, they have no jurisdiction in the territory outside of the city; and that it is the duty of the state supervisor of elections to appoint deputy state supervisors under the statute, for such territory in each county of the state containing a city, to conduct all elections under the laws applicable to such deputy state supervisors.

The petition is against the defendants individually, and avers that under the claim that they constitute the board of elections of the city of Cleveland, they are usurping and intruding into the office of appointing registrars, judges, clerks, and other officers and agents of elections. But while the answer avers that boards of election have existed in the city of Cleveland since March, 1891, and that the predecessors of the defendants composed the board, it avers that said defendants, Edward Etzensperger and Edward C. Kinney, were appointed to their present term of office on the third day of June, 1896, and that the defendants, Hugh Bmckley and Charles P. Salen, were appointed to their present term of office on the sixth day of June, 1898. It thus appears that neither one of the defendants has been in his present office for the term of^three years, and that section 6789, Revised Statutes, can afford them no shield as against an action of quo warranto, unless one term of office can be tacked upon another, so that the line of different men holding a certain office under a statute, constitute but one officer for that office for the whole time. Such a proposition is not tenable, and is absurd upon its face.

A person holds an office and is an officer under and by virtue of his election or appointment and the commission he holds, and the officer did not become such earlier than' his- induction into office under his present commission. The statute of limitations says that an action shall not be brought against an officer to oust him from his office, unless within the three years after the cause of such ouster or the right to hold office, arose. “His office” means his present office under his present commission, and not an old expired term in the same office under a former election or appointment. He could not be ousted from such former term of office, because the term has expired and he is not now in office under that term, and is not now an officer under that term. If it were otherwise the statute of limitations would run, not in favor of the officer, but in favor of the office, and after three years the constitutionality of the statute creating an office could not be questioned. The right of the people to protect themselves against unconstitutional laws.would thus become barred within three years after the passage of an act creating an office.

The statute of limitations in question applies expressly to the officer and not to the office, and when the office is in conflict with the constitution this statute does not prevent the court from so declaring.

It is urged that while the members of the board have not been in office under their present terms for three years that the same board of elections has been in existence more than three years, and that therefore the board cannot be ousted. This is not sound, for the reason that the statute is by its express terms for the protection only of officers, and says nothing about the ouster of ’ the board of election or other boards. The board of elections is not an officer, but the men composing the board are the officers.

The demurrer to the second defense was therefore properly sustained.

Judgment affirmed.


author: Spear, J.

text:
    B. & O. R. R. Co. and the C. O. R. R. Co. v. City of Bellaire.

      Assessments — Action by municipal corporation to enforce payment— Section $289 jRevtsed Statutes — Authority of court to determine amount and award judgment — Issue triable by couit and not appealable, when.

    Where it is shown by the petition in an action by a municipal corporation to enforce payment of an assessment for a street improvement, that the assessment by the council had been made upon lands which had not been platted or subdivided into lots, and the court is called upon, under authority of section 2289, Revised Statutes, to find and determine the proper amount of the assessment, and award judgment therefor, and order sale of such portion of the lands as may be found properly chargeable, the issue is one triable by the court and not by a jury ; and such case is appealable.
    (Decided May 9, 1899.)
    Error to the Circuit Court of Belmont county.
    The City of Bellaire brought action against the Baltimore & Ohio Railroad Company, The Central Ohio Railroad Company, and The Cleveland, Lorain & Wheeling Railroad Company, to enforce against the two companies first named, payment of certain assessments for street improvements, amounting with penalty, to the sum of $602.09. The petition, among other averments, alleged the ownership by the Central Ohio Company of certain tracts of land within the city limits; the occupancy of the same by the Baltimore & Ohio Company as lessee; the passage by the council, and due publication, of a resolution to improve Central avenue on which the lands abutted; the passage and due publication of an ordinance for the construction of the improvement, providing that the expense should be assessed per foot front upon the property abutting, payable in ten annual installments; the due construction of the work; the passage' and publication of an assessing ordinance, imposing the assessments upon the lands described; the neglect of the two companies to pay any part of the assessments, and that the plaintiff, after the assessment ordinance was in full force, had caused the assessment to be duly certified to the auditor of the county and the same to be placed upon the tax duplicate.
    The petition further averred that “there was technical irregularity and defect in the proceedings of the said council, in this, that the land not being subdivided and platted, but being then and there ‘land in bulk,’ the said council did not fix the depth of said land so that it would be a fair average depth of the lots in the neighborhood which should be subjected to such assessment; but plaintiff says that the amounts so assessed were no more than would have been assessable, and properly assessable, had such been done; that the amounts so assessed upon the said property is the just proportion of the said cost; that the true value of the improvement bounding and abutting the said lands was the amount fixed in the said assessment; and constitute the proper share and portion of the defendants of and in the cost and expense of said improvement, and constitute the amounts properly chargeable against them and their said property. ’ ’
    As to the Cleveland, Lorain & Wheeling Company it was averred, that it has or claims rights in one of the tracts of land described, and asks that the same be set forth, etc.
    Judgment was asked against the other companies for $602.09, with interest, and that the same be declared a lien on the premises, or such portion as may be found properly chargeable under the law; that the lien may,“be foreclosed and the amount due the plaintiff found, and that in default of payment, the premises or the portion which may be found properly chargeable with the lien may be sold and the proceeds applied to the claim and costs, and for further relief as to the court may seem just.
    The Cleveland, Lorain & Wheeling Company did not answer. Issue was taken by the other two companies. Trial was had to the court, a jury not being desired by either party. The court found' for the plaintiff, and entered judgment, and decree of sale, in its favor. From this the Central Ohio Company appealed. In the circuit court the company’s motion for judgment on the pleadings was overruled, and, on motion of the plaintiff, the appeal was dismissed for want of jurisdiction. The plaintiffs ask a reversal of the judgment of the circuit court.

      J. TI. Gollins, for plaintiffs in error.
    It will be seen that The Central Ohio Company was sued as the owner and the Baltimore & Ohio Company as lessee.
    It is true a judgment was asked against both, but it is clear that it was not entitled to a judgment against the Baltimore & Ohio and none was rendered against it. The decree ordered a sale of land which it was possessed of as lessee and a judgment and decree against the Central Ohio. That is, the court finds the amount due on the assessment and orders the land sold for the payment of that amount and costs.

      The prayer is for a judgment hut also for an order of sale and for such other relief as the court shall deem .just.
    This suit was not prosecuted under section 2286, but under section 2289, which provides for a proceeding which is purely equitable. That is, it authorizes the court to make the assessment when it was not properly done by the council. Springer v. Avondale, 35 Ohio St., 620; Cincinnati v. Oliver, 31 Ohio St., 371.
    Besides this, the Central Ohio sets up several defenses which are purely equitable and would have entitled it to an injunction against the collection of the assessment had it commenced the suit instead of the city.
    Besides this, the Cleveland, Lorain & Wheeling Railroad Company is made a defendant and equitable relief is prayed against it.
    So that the petition and supplemental petition were equitable in their nature and so was the prayer for relief and the remedy against The Baltimore & Ohio as claimed in the petition and as granted by the court was entirely equitable and The Central Ohio set up several equitable defenses, and it is submitted that the appeal should have been sustained upon any and certainly upon all these grounds considered together.
    It should be noted that this petition in error is Eled by The Baltimore & Ohio Company and The Central Ohio Railroad Company, as reorganized; and while it is true that the appeal in this case was taken by The Central Ohio Railroad Company, as reorganized, alone, yet that appeal carried the whole case into the circuit court, and The Baltimore & Ohio Railroad Company was there as well as The Central Ohio Company.

      Section 5225, Revised Statutes required the case to be tried upon the same pleadings, and of course that could not be done unless The Baltimore and Ohio Railroad Company was in court, the claim against it and The Central Ohio' Company being joint. Bank v. Walters, 1 Ohio St., 201; Brown v. Kuhn, 40 Ohio St., 468; Harpold v. Stobart, 46 Ohio St., 397.
    If The Baltimore & Ohio Company was prejudiced by the dismissal of the appeal, it, as well as The Central Ohio Company has the right to insist upon a reversal.
    That it was prejudiced by this judgment is entirely clear, because land which it occupied was ordered to be sold for the payment of the amount found due upon this assessment; and while a personal judgment was asked against it, it is entirely clear that under the statute it was not liable to any personal judgment,' because it is shown by the pleadings, as well as the finding of the court, that it was never, at any time, the owner of the property upon which the assessment was made. Corry v. Gainor, 21 Ohio St., 277; Admr. v. Hewett, 7 O. C. C., 5; 3 Circ. Dec., 635.
    But this action as shown by the statement was in its nature equitable and equitable relief was claimed against The Baltimore & Ohio Company, The Cleveland, Lorain & Wheeling Company, and it is submitted also against The Central Ohio, and •several equitable issues were made by the subsequent pleadings.
    Besides this, this record does not show that The Central Ohio Company was the owner of this property at the time of the assessment. The averments of the petition are that it was such owner. The Central Ohio admits that it is the owner, and The Baltimore and Ohio admits that The Central Ohio is the owner, but denies all else, and the special finding is that The Central Ohio is the owner. The failure to find that it was the owner at the time of the assessment is equivalent to a finding that it was not such owner.
    There is no presumption that evidence was offered tending to prove that The Central Ohio was the owner at the time of the assessment. Springer v. Avondale, 35 Ohio St., 620.
    Pacts not found are taken as not proven by the party holding the affirmative.

      Hunter S. Awn-strong, for defendant in error.
    Even if the pleader intended to deny that the said company “was” the owner and admit that it “is” the owner, the language used would not be sufficient', for the allegation is that “this defendant has no knowledge, and it therefore denies,” etc. Now, if it was the owner at the time of the assessment, it knew it was, and it had knowledge of that fact. If it was not the owner at the time of the assessment it knew it was not, and it had knowledge of that fact. The obligation to verify pleadings carries with it the obligation to state the truth in them, and we are not to presume that the officer of the said company made a false statement in the pleading, as we must presume if we assume that the denial of knowledge of “the other averments” was meant for a denial that the said company “was” the owner of said property at the time of the assessment.
    Furthermore, the permission to deny any knowledge is not absolute. If the fact charged is evidently within the knowledge of the defendant, or where be has the means of information, a denial of information would be clearly false and evasive, and such an answer should be disregarded. Bliss on Code Pleading, section 326.
    But, in any event, the petition alleges that it was, and the allegations of the petition in this particular alone determines this question. We claim that the question of title at that time was admitted by the pleadings to be as alleged in the petition, but in any event, the allegation of the petition in this particular alone determines the question as to whether there was an appeal. • If title was admitted, then the court was not required to make a finding as to title.
    If ownership at the time of the assessment is not admitted in the pleadings, it is at least averred in the petition, and the fact that the court failed to make a finding of fact as to the ownership at the time of the assessment does not convert the cause into a purely equitable one. That error, if it be one, could only be taken advantage of on error, and not by appeal. If it was a jury case when the suit commenced, it continued to be a jury ease. The suit was one in which a jury might have been had. It is, therefore,' not appealable. If, in order to enter a binding judgment, it was necessary to find that the said company “was” and not merely “is,” then that was an error, and could be corrected only by petition in error. Even if the railroad company had denied that it was the owner of the property at the time of the assessment, this court would be bound to presume that the allegation of the petition was sustained by evidence or a personal judgment would not have been entered.

      No judgment or decree was entered against the Baltimore and Ohio Railroad Company, but the judgment was rendered against the Central Ohio, and the latter company took an appeal. Two causes of action were stated in the petition. No objection was made to thfe joining of these two causes of action. That such eases are not appealable is well settled. Brumbridge v. Goodlove, 30 Ohio St., 374; Chapman v. Lee, 45 Ohio St., 356; Corry v. Gaynor, 21 Ohio St., 277; Ladd v. James, 10 Ohio St., 437; 13 Ohio St., 574; 7 Ohio St., 233; 15 Ohio St., 460; Huber v. Cherrys' Exrs., 17 Ohio St., 562.
   Spear, J.

Did the circuit court err in dismissing the appeal? We think it did.

The case made in the petition is not an action for the recovery of money only, within the meaning of section 5130, Revised Statutes. The land upon which assessments were to be charged had never been platted or subdivided into lots, but was “land in bulk.” It was, therefore, the duty of the council, in making an assessment, to fix the depth of the land so that it would be a fair average depth of the lots in the neighborhood which should be subject to such assessment. This duty the petition shows that the council wholly neglected. That body undertook to make an assessment, but failed to make a legal one. Hence no valid assessment existed at the commencement of the action, and no judgment could properly be demanded until the court, acting under the authority given by section 2289, Revised Statutes, had heard proof, and itself supplied the omission of the council in this respect. In other words, the court was asked to correct the proceedings by acertaini'ng and finding what amount should be equitably charged against the land, and then, a proper assessment being made, to award judgment and order of sale.

This presented an issue which, under section 5131, Revised Statutes, was triablepby the court.

The judgment of the circuit court dismissing the appeal will be reversed and the cause remanded to that court for further proceedings according to law.

Reversed.