author: Williams, J.

text:
    State ex rel. v. Cincinnati.

      Annexation of municipalities — Unconstitutional statute amended into constitutional one — Consejil of municipal authorities not necessary to annexation — Submission of question to electors— Constitutional law — Validity of act of April IS, 1893, as amended April 24, 1893 (90 Ohio Laws, 263 and 265).

    1. An amended section of a statute takes the place of the original section, and must he construed with reference to the other sections, and they with reference to it; the whole statute, after the amendment, has the same effect as if re-enacted with the amendment, and hence, an unconstitutional statute may be amended into a constitutional one, so far as its future operation is concerned, by removing its objectionable provisions, or supplying others to conform it to the requirements of the constitution.
    2. The- act of April 13, 1893,. as. amended April 24, 1893, authorizing cities of the first grade of the first class to annex contiguous municipalities of other grades and classes, is a subsisting and constitutional law.
    3. It is not a valid objection to the statute, or to annexation under it, that a municipal corporation may be so annexed without the consent of its constituted authorities, or of its inhabitants; nor, that the taxable property within such municipality will become subject to taxation for the payment of previously incurred indebtedness of the city to which the annexation shall be made.
    4. The statute does not require that, at the election held to determine whether annexation shall be made, the question be so submitted that the electors of each municipality sought to be annexed may vote for or against its annexation; nor is it essential to the annexation, that a majority of the votes cast by the electors of any such municipality shall be in favor of it. The question to be voted upon, is whether all of the municipalities , included 'in the proceeding shall be annexed, when it is sought to annex more than one, and the proposition is deemed carried if a majority of the aggregate vote cast be in favor of annexation.
    [Decided March 12, 1895.]
    Quo Warranto.
    The petition alleges that the defendant, which is the only city of the first grade of the first class in this state, has instituted, and is about to carry to completion, proceedings to extend its corporate limits by annexation, so as to include the contiguous villages of Riverside, Westwood, Clifton, Avon-dale and Linwood, and claims the right to do so, under and by virtue of an act of the general assembly, passed April 13, 1893, entitled “an act to authorize cities of the first grade of the first class to annex contiguous municipal corporations of other grades or classes lying within any county containing’ such cities of the first grade of the first class,” and an act amendatory thereof, passed April 24, 1893. The first mentioned act reads as follows:
    Section 1. Be it enacted by the General Assembly of the State of Ohio, That any city of the first grade of the first class shall have the power to annex to its present corporate limits any contiguous municipal corporation or corporations of other grades or classes situate in the county containing such city of the first grade of the first class, upon compliance with the terms and conditions hereinafter recited.
    “Sec. 2. That any such city of the first grade of the first class desiring to annex any contiguous municipal corporation or corporations of other grades or classes, lying within the county containing such city shall, by its board of legislation, pass an ordinance declaring such intention and describing the municipal corporation or corporations which it desires to annex; and it shall be the duty of the mayor of such city of the first grade of the first class seeking such annexation, to cause such ordinance to be published once a week, for four consecutive weeks,- in two newspapers published and of general circulation in the county; and if there be any objections to or remonstrances against the proposed annexation the same shall be filed with the clerk of the board of legislation of such city, and-the clerk shall present the same at the next regular meeting of such board of legislation, and such'board shall hear all objections and remonstrances and finally determine the same by ordinance.
    “Sec. 3. That if said board of legislation after such hearing determines in favor of. such annexation, then the mayor of such city of the first grade of the first class, and also • the mayors of the different municipal corporations sought to be annexed, shall each cause their separate proclamations to be issued, as in the case of municipal elections, notifying the qualified voters of their respective municipalities of the time and place of the holding of -an election to determine whether 'such municipalities shall be so annexed. The time for such election shall be fixed by the ordinance of the board' of legislation determining in favor of such annexation, and shall be not less than thirty days after the* passage of such ordinance. Before such annexation shall be deemed to -have carried, it shall-have received a majority of all votes cast upon süch proposition. Such election shall be conducted in the same manner as is now by law provided for the conduct of municipal' elections in such cities and municipal corporations, respectively,' except that no additional registration shall be required. The form of the ballots ,to be used at such election shall be determined by the board of elections of such county.
    “Seo. 4. That it shall be the duty of the judges of election to return the result to the board of elections for such county, and it shall be the duty of such board to ascertain the result of such election and certify the same to the secretary of state and to the board of legislation of the city seeking the annexation.
    “Sec. 5. That if such election shall have resulted in favor of such annexation, it shall be the duty of the mayor of such city to whose limits are to be so attached such municipality or municipalities, to immediately notify the court of common pleas of the county containing such city of ‘the result of such election, and thereupon such court shall appoint three commissioners, who shall be residents of such county. And such commissioners shall be sworn in by the judge of such court to faithfully, honestly and impartially discharge their duties, and such commissioners’ compensation shall be .fixed by such court, and the same shall be paid out of the general fund of the treasury of the city making such annexation, upon vouchers to be issued by the mayor of such city.
    “Sec. 6. That it shall be the duty of such commissioners to make a full and detailed account of the indebtedness due by each municipality so annexecl and of the several school districts affected by such annexation; that they shall also report what number of bonds or other evidences of debt have been issued by each corporation, and of the several school districts. That^ such commissioners, in connection with the sinking- fund trustees of such city of the first grade of the first class, shall arrange the terms and conditions for the final annexation of such municipalities, and report the same to said court. That whenever their report shall have been so made and approved by the court such annexation shall be deemed complete..
    “Sec. 7. That if any municipality so annexed shall complain, ° in writing, that the terms and conditions for such ■ annexation ■ are unjust and unfair in whole or in part towards its interests, such corporation or corporations shall have the same heard by the court appointing such commissioners. That such court shall have the power to modify such report, if in its judgment the conditions and terms are unfair to the interest complaining, but shall not have the right to set aside the annexation of such municipality or municipalities to such city. That neither an appeal nor writ of error shall be allowed to reverse or set aside such final decree of the court.
    “Sec. 8. That whenever the terms, and conditions of such annexation shall have been completed, the commissioners herein designated shall file a transcript of such terms and .conditions with the recorder of such county, and also transmit a certified copy of the same to the secretary of state, and the same shall be by such secretary recorded in his said office. And thereafter such territory and municipalities so annexed shall be governed by the respective boards and officers of such city annexing the same. Upon such annexation, the board of legislation shall by ordinance provide for the division of such annexed municipality or municipalities into wards, and thereafter members of the board of legislation and members of the board of education of a school district affected by such annexation shall be elected in the even and odd numbered wards, respectively, whenever members of said boards for the even and odd numbered wards, respectively, are elected in the city and school district to which such annexation is made; provided, that at the first annual municipal election held after such annexation members for the ward in such annexed territory shall be chosen for one or two years as the case may require, so that the terms expire whenever terms of existing members in odd and even numbered wards, respectively, expire.
    “Sec. 9. That all officers and boards created for the government of the different municipal corporations so annexed to such city existing before such annexation, and of the several school districts in the territory and municipal corporations so annexed shall be abolished whenever such annexation is complete; and the title to all real estate and property of all descriptions heretofore vested in such municipal corporations so annexed, and in the several school districts so annexed, shall be by this act transferred to such annexing city and school district of such city, respectively.
    “Sec. 10. That all acts or parts of acts inconsistent with the provision of this act are-hereby repealed.
    “Sec. 11. This act shall take effect and be in force from and after its passage.”
    The amendatory act re-enacts the first section, omitting the word “presents'1 and makes no other change in the statute.
    The petition avers that the foregoing statutes are unconstitutional, and that the defendant in proceeding to make the annexation is exercising a franchise not conferred on it by law. It is further averred that the proceeding is not in conformity with the statute, in that, at the- election held under its provisions, the question of the annexation of all of the villages named was submitted as the only one to be voted upon, when, it is claimed, each village should have been allowed to vote upon the question of its annexation, and a majority of the votes cast by its electors is necessary to authorize its annexation ; and, furthermore, the election was called and held in each of the villages of Riverside, Clifton and' Linwood, against the protest of their respective municipal authorities. A large majority of the aggregate vote cast was in favor of the annexation of all the villages, and a majority of the vote cast in Cincinnati, and in each of the-villages, was in favor of it, except that cast in Clifton, where the majority was against annexation. The petition prays that the defendant be required to show by what authority it is exercising the right claimed, and that, it be ousted therefrom.
    The defendant pleads the statutes referred to, in justification of its action, alleging that the proceeding’ had, up to the time of the filing of the petition, has been regular, and in strict accordance with their provisions, and claiming under them the right to complete the annexation, which has so far progressed as to call for the appointment of commissioners as provided in section five of the statute.
    The reply contains allegations showing that the indebtedness of the defendant is something* over twenty-six millions of dollars, a large part of which was incurred in the construction of what is known as “The Cincinnati Southern Railroad,” and other considerable portions for water-works, city hall, and other purposes purely local, to the creation of which indebtedness the villages sought to be annexed have not consented, or in any way given their approval.
    The cause has' been submitted upon evidence, and an ag*reed statement of facts, which show that the annexation proceedings thus far prosecuted, are in substantial conformity with the statutes, unless it be in respect to the method of the vote as before stated, which will be more particularly noticed in the opinion. -It also appears that improved streets of the several villages extend to their respective corporate limits, and there connect with the improved streets of the defendant, thus forming* continuous thoroughfares, on some of which street railroads are constructed and operated to and from the business portions of Cincinnati. It further appears that the defendant is indebted, as heretofore stated ; and, that for the year 1894, the rate of taxation in Cincinnati is slightly larger than in each of the villages, except Linwood, where the rate is slightly greater than in Cincinnati. Any other facts deemed material in the disposition of the case, will be noticed in the opinion.

      John K. Richards, Attorney-General, John W. Warrington and Stanley E. Bowdle, for Plaintiff.
    1.- Two things, we think, are apparent, viz.:

      First — The act of April 13, is an act conferring corporate power, in that it allows the city of Cincinnati to extend its jurisdiction and corporate authority over territory and people not theretofore subject to such authority; and its effect and operation must, therefore, be uniform throughout the state. -That the power thus conferred is corporate; and that the act must therefore be uniform in operation, has been decided by-this court in the case of State ex rel. v. City of Cincinnati, 20 Ohio St., 18.

      Second — The act of April 13, 1893, did not have uniform operation throughout the state, but was limited in operation to the city of Cincinnati, by virtue of the word “present;” and was, therefore, void, as special legislation conferring corporate power.
    There is no escape from this unless the word “present ” be ignored or read out of the act. Be-ing in the act, it must be given effect and meaning; and to do this is to taint the entire act as special. Endlich on Interpretation of Statutes, section 25; People v. Burns, 5 Mich., 114.
    Mere words will not save an act if its practical operation is confined to a single municipality. State v. Mitchell, 31 Ohio St., 592; Welker v. Potter, 18 Ohio St., 85; State v. Covington, 29 Ohio St., 102.
    The act was void ab initio, and as an entirety. As it stood upon the legislative records it was in legal contemplation as though it had not been passed. The attempted amendment of April 24, was consequently ineffectual, as there was nothing to amend. Ash v. Ash, 9 Ohio St., 383; City of Emporia v. Norton, 16 Kan., 239; Stange et al. v. City of Dubuque, 62 Ia., 303; Reading v. Savage, 120 Pa. St., 198; Kimbel v. Rosendale, 42 Wis., 407.
    II. The defendant, in assuming to extend its jurisdiction and control over the contiguous villages, has proceeded upon what we deem an erroneous interpretation of the act in question, even though it were treated as a subsisting act. Defendant claims that regard must be given only to the majority of the joint vote of all the munici- . palities concerned; and that the majority on each separate voting must be disregarded.
    It will be observed at the outset, that the act treats the annexing municipality and the municipalities sought, to be annexed as separate and distinct entities; that is, it provides for the issuance of a separate proclamation by each, for a separate vote by each, and for the separate submission to the electors of each of a single question. This fact is made plain by paragraph 1 of section 3. Defend-: ant’s construction would, therefore, allow, in the cases assumed, the votes of a single village to nullify the votes of the city and all the other villages. It would compel the city, when once it commenced proceedings, to annex all, or none. Sutherland on Statutory Construction, section 323; Walton v. Levy, 17 L. R. Chan. Div., 746; Potter’s Dwarris, second clause, page 188; Smith v. The People, 47 N. Y., 330.
    Defendant’s interpretation is opposed to the uniform and established policy of Ohio. The policy of this state has always been to foster its municipal agencies, and we believe never in the history of this state has a statute been passed which placed the small municipality at the mercy of the cities, whose existence, with their attendant abuses, has, in the judgment of all writers upon social questions, become almost a menace. Revised Statutes, sections 1605, 1615; Mass. Acts and Resolves for the year 1867, pages 837 to 841; U. S. Statutes, 1846, chap. 35. The interpretation for which defendant contends sets at naught this settled state policy. Sutherland Stat. Con., section 321; 7 Mass., 524.
    III. The record discloses the fact that the ballot used in the election presented the single question, whether all the villages jointly, not whether the villages separately, should be annexed. To an elector in Avondale, for instance, various reasons might be apparent for annexing that village to Cincinnati, and reasons why the other villages ought not to be annexed; but this elector is confronted by a ballot which says, “ You must annex all or none.” A moment’s reflection impresses one with the coercion involved; and our inability to find a case covering the precise point induces the belief that this proceeding is unparalleled. The act does not in terms make the board of legislation the .dictator in annexation. It is simply made the agency for the admission of the question of annexation. It simply was intended to determine what village or villages are eligible for annexation, and nothing more. Pinal power of determination is lodged with the voter. The act makes this plain. Every elector voting upon this important question was robbed of that discretion which the letter and spirit of the act gives him; and had substituted, as in the Avondale instance, the question of voting to annex municipalities in which he could have no legitimate interest.
    IV. At the outset we call attention to the important distinction to be made between a power conferred and a method prescribed for its exercise. Although here the mode prescribed -for the exercise of the power is part of the power itself, yet this distinction is both natural and logical; for it is manifest, that while a power conferred, abstractly considered, may be valid, the method according to which alone it can be exercised may require unlawful acts or may disregard rights.
    It will be observed that the election held pursuant to the act, when favorable to annexation, does not purport to accomplish annexation. It simply affords the city seeking annexation a warrant for calling into play other powers, by aid of which the final union is to be accomplished. These powers are as follows:

      (a) Power vested in the court of common pleas to appoint and fix the compensation of three commissioners.

      (&) Power vested in these commissioners so appointed to arrange with the sinking fund trustees the final terms and conditions of annexation.

      (o) Power vested in the court of common pleas to pass on the fairness of the report of these commissioners fixing terms and conditions, and to give such report the force and effect of a decree, from which decree there shall he neither appeal nor writ of error.
    This grant of power suggests two questions for solution, viz.:

      First — Had the legislature authority to impose upon the court of common pleas the duty to appoint these commissioners and fix their compensation?

      Second — Had the legislature authority to delegate to the court of common pleas power to pass upon the report of these commissioners, and thereby fix terms and conditions upon which annexation was to be effected, and give to such report the force and effect of a decree from which there should be neither an appeal nor writ of error ?
    We insist that this duty is of a legislative or political character; and, as such, not susceptible of delegation to the judiciary. Powers v. Commissioners, 8 Ohio St., 285; Bristol v. New Chester, 3 N. H., 535; Board v. Board, 30 W. Va., 433; Board of Review, 27 W. L. Bull., 334; Gordon v. United States, 117 U. S., 697.
    But our adversaries say this court has twice decided that the power to make such appointments may be cast on the judiciary. They allude to the decision in Walker v. The State, 21 Ohio St., 14; State v. The Judges, 21 Ohio St., 1.
    To thus subject municipalities to the control and interference of an authority which they have not constituted, has been repeatedly decided to be invalid. Drainage Commissioners' Case, 53 Ill., 105; Park Commissioners’ Case, 51 Ill., 17; State ex rel. Holt v. Denny, Mayor, 118 Ind., 449; The People v. Hurlbut, 24 Mich., 44; Cooley’s Const. Lim. 5th ed., 209.

      The powers vested in the common pleas court by this act must be either legislative or judicial; they cannot be both. • City of Galesburg v. Hawkinson, 75 Ill., 152; State v. Simonds, 32 Min., 540; Shumway v. Bennett, 29 Mich., 451; The People v. Carpenter, 24 N. Y., 86.
    In order to uphold an act conferring such powers as we have shown this act to vest, our adversaries must confront and avoid certain familiar provisions of the constitution. Section 20, article I, Constitution; section 1, article II, Constitution; section 1, article IV, Constitution. It is plain that the mere division of powers into departments, necessarily deprives any one department from exercising the power of another. Railroad Co. v. Commissioners, 1 Ohio St., 86; Bingham v. Miller, 17 Ohio St., 445. The powers here in dispute are political or legislative, and not' judicial, then their lodgment in a court is as strictly forbidden as though they had been selected out and made the object of an express inhibition. The legislature could not therefore make these powers valid in the court, by either calling or treating them by a wrong name. State v. Hipp, 38 Ohio St., 229; Merrill v. Sherbourne, 1 N. H., 203; State v. Hawkins, 44 Ohio St., 109; Cooley’s Const. Lim., 109 (6th ed.); Ex parte Shroeder, 33 Cal., 279; O'Brien v. Montgomery, 58 Mich., 364; People v. Town of Nevada, 6 Cal., 143; Denny v. Mattoon, 2 Allen, 361; Supervisors of Election, 114 Mass., 247; State v. Noble, 118, Ind., 352; Kilbourne v. Thomson, 103 U. S., 169; Munday v. Rahway, 43 N. J. L., 338.
    The other horn of the dilemma is, that if we are wrong in our insistence that the powers conferred upon the common pleas court are political or legislative, then it, inevitably follows that they are judicial powers. This result is equally fatal to the validity of the act in dispute; for it is not open to rational argument that if this feature of the act were stricken out the legislature would have passed it. Hulbert v. Mason, 29 Ohio St., 562; Blanchard v. Bissel, 11 Ohio St., 102.
    It is not competent to enlarge the boundaries of the city by special law.- State v. Cincinnati, 20 Ohio St., 18; Kelly v. The State, 6 Ohio St., 269.
    The question now comes to this: Whether in the face of both official and private protests, the legislature can, either directly or indirectly, under the guise of annexation, subject agricultural or farming lands which are neither subdivided nor susceptible of subdivision into lots,- to the burden of existing municipal indebtedness, with the creation of which the owners of those lands had noth-' ing to do. We admit that in Powers v. Commissioners of Wood Co., this court said, in answer to a claim that property would be subjected to taxation to pay prior indebtness and would thereby be taken for public purposes without compensation, that it was beyond the reach of practical consideration. 8 Ohio St., 290.
    The. claim submitted is, that as respects this farming property, the operation and effect of the act is to authorize the taking' of private property without compensation, and is therefore in violation of Art. I, section 19, and article XIII, section 5, of the constitution. ■ ■ . •

      Arbegust v. City of Louisville, 2 Bush., 65 Ky., 271; City of Covington v. Southgate, 15 B. Monroe, 492; Prince George’s County v. Bladensburg, 51 Md., 465.

      T). Them Wright, for the village of Riverside.
    I. Is this a general or special law. The legislature passed an act April 16, 1870, 67 O. L., 141, to prescribe the corporate limits of Cincinnati, the object of which was to accomplish the annexation' to the city of Cincinnati, of the villages of Clifton, Avondale, Riverside, and certain other outlying territory, for which the city of Cincinnati seemed to hanker. That law being considered by the Supreme Court, State ex rel. v. The City of Cincinnati, 20 Ohio St., 18, was declared to be unconstitutional, on the ground that it was a special act conferring corporate power. In the title it is shown that it is meant to apply to Cincinnati alone. As to the matter of title, see State v. Pugh, 43 Ohio St., 113.
    Had the law before us simply said that any city of the first grade of the first class might annex, etc., such a law would be general, not only in its form, but in its application. Springer v. Avondale, 35 Ohio St., 626, with reference to section 2267, Revised Statutes, which provides that villages not situate in a county having a city of the first class, shall not make certain assessments. State v. Cincinnati, 20 Ohio St., 18; State ex rel. v. Covington, 29 Ohio St., 102; State v. Brewster, 39 Ohio St., 658; Costello v. Wyoming, 49 Ohio St., 202; 89 O. L., 34; State v. Smith, 48 Ohio St., 211; Carr v. West Carrolton, 8 C. C., 7.
    II. This law provides that the votes of all the electors of the villages and in Cincinnati shall be cast. For what? Not upon anyone single question. Not upon any one question in which the voter is distinctly and solely interested, but he is required to vote upon a large number of questions, in many of which he has no interest. State v. Con
      stantine, 42 Ohio St., 437. An election that submitted to a popular vote half a dozen different questions at once, to be determined by a single ballot, certainly could not be lawful. If a voter has any right in the matter at all, it is to express his opinion upon one single distinct question.
    III. This law is invalid, because it deprives three villages of the franchise to be a corporation without their assent. It takes away from the village the ability to perform contracts which they have entered into. That have issued bonds which they expect to pay by means of the powers of taxation which they now hold. This power of taxation is taken away. If a municipal corporation, however, becomes indebted, the rights of the creditors can not, it is clear, be impaired by any subsequent legislative enactment. 1 Dill. Mun. Corp. 3d ed., section 69, p. 93; Von Hoffman v. Quincy, 4 Howard, 535; Goodale v. Fennell, 27 Ohio St., 426. It is no answer to say that the city of Cincinnati will pay these bonds. Perhaps she may. Perhaps quite the reverse. There is nothing in the law, the constitutional proportions of which we are contemplating that compels the city of Cincinnati to pay such bonds. Section 6 of the law (90 O. L., 264).
    IV. This law is invalid, for it seeks to confer upon the court of common pleas powers not judicial in their nature. Art. IV, sections 1, 4, Constitution. Jurisdiction is the power to hear and determine a cause. Sheldon v. Newton, 3 Ohio St., 499. Courts are constituted to decide cases, not abstract questions of law. Shelly v. Jefferson Bank, 9 Ohio St., 606; Marbury v. Madison, 1 Cranch, 137; Hayburn’s ease, 2 Dall., 409; U. S. v. Ferreira, 13 How., 40; Spoors v. Coen, 44 Ohio St., 497;
      Ex parte Logan Branch Bank, 1 Ohio St., 432; Ex parte Griffith, 118 Ind., 83.
    The power to. change the- territorial limits, of a municipal corporation is. legislative, not judicial-, and cannot be exercised by courts. Willet v. Belleville, 11 Lea., 79 Tenn., 1; State v. Armstrong, 3 Snead, 634; 1 Dill. Mun. Corp., section. 41, p. 1; City of Galesburgh v. Hawkins, 75 Ill., 152; People v. Riverside, 70 Cal., 461; People v. Bennett, 29 Nich., 107; Meriwether v. Garrett, 102 U. S., 472.
    Can the appointment of- these commissioners, the hearing of their report, without any. proceeding in the nature of a civil action, be called the exercise of judicial-functions? Griffin v. State, 119 Ind., 520; Auditor of State v. Railroad Co., 6 Kans., 500; Logan Co. Branch Bank, 1 Ohio St., 432; Smith v. Strother, 68 Cal., 194.

      Frederick Hertenstein and Frank F. Dinsmore, for defendant.
    I. In the first place it is. claimed that there is no subsisting law, for the reason that the act of-April 13, 1893,' was an. unconstitutional law,, and consequently had no legal existence; and when the legislature, by the act passed April 24, 1893, amended section one.of the act of April 13, 1893, it attempted to correct a supposed defect in the first act by which it was rendered unconstitutional. This, it is claimed, could not b^, done.by simply amending section one of the original act, for in legal contemplation, there was.no act to amend.The supposed defect in..the original act was the word “present,” and, by reason of this word it is claimed the act did not have a. uniform operation throughout, the state, but was limited in operation to the city of Cincinnati, and was therefore void, as special legislation conferring corporate power. We claim in the first place that the original act was a valid constitutional act, and the legislature in amending section one intended to broaden the scope of the act and'not correct a constitutional defect. We further claim that if the plaintiff is correct in its contention, nevertheless the amendment effectually corrected any - defect, and' the law as amended is a valid subsisting law. Cass v. Dillon, 2 Ohio St., 607; Lehman v. McBride, 15 Ohio St., 573; McGill v. State, 34 Ohio St., 228, Falk ex parte, 42 Ohio St., 539; Senior v. Ratterman, 44 Ohio St., 661; Bronson v. Oberlin, 41 Ohio St., 481; Kumler v. Sillsbee, 38 Ohio St., 445; State v. Frame, 39 Ohio St., 411; Railroad v. Commissioners, 31 Ohio St., 338.
    - When the legislature by the act of April 24,1893, amended section one of the original act, the amendment took the place of the repealed section, and should be introduced into the original act in' the proper place, - as if it-stood there at the time of the first enactment. This is a well known rule of statutory enactment,- and has been so declared. McKibben v. Lester, 9 Ohio St., 627.
    II. It is claimed in the second place, 'that the interpretation placed upon the act by the defendant whereby a majority in each separate municipality is disregarded and the majority of the total vote in all the municipalities is taken as controlling; is erroneous. As statute law is the will of the legislature, the discovery of this will is the basis of all statutory construction and interpretation. Endlich on Interpretation • of Statutes, section 27, aiid'following. .....’ •
    1 That the' legislature has supreme control over municipal corporations and can modify their powers, divide their territory, or entirely destroy their existence at pleasure, is a principle we supposed tq be uncontrqverted. The legislature, in the first place, provided in the new act that cities of the first grade of the first class should have the power to annex contiguous municipal corporations, with certain limitations. By so providing, the city not only becomes the prime mover, but also the judge of the, number it desires ■ to annex in one proceeding. The ■ duty is then imposed upon the city of passing certain ordinances and making certain publications. Furthermore, in evidence of the fact that the legislature gave little consideration to the villages as corporations, it gave the city power to determine the objections and remonstrances of the villages and their residents, so as not to defeat the design of the city authorities. This being the intention of the legislature, and in view of the exceedingly large, majority-known to exist in Cincinnati in favor of annexation, the practical result of the law, therefore, was compulsory annexation. But if a majority in the village is to have any effect, how can it be said that the act deprives the village of its-franchise without its assent. We believe, in view of all the facts, that the spirit of the act is compulsory annexation, .and we insist that defendant’s interpretation is in accord therewith.
    IV. It is also claimed that the law is unconstitutional, because, in violation of thos.e sections of the constitution -which prohibit the legislature from passing special .acts conferring corporate power, and which require all laws of a general nature to have a uniform operation throughout the state. The validity of classification by the legislature has been repeatedly recognized and sustained by this court, in a long line of decisions unnecessary to cite. If just and reasonable, and in no manner arbitrary, classification is proper. Bronson v. Oberlin, 41 Ohio St., 476; Costello v. Wyoming, 49 Ohio St., 202.
    V. Whether the power given to the court of common pleas to appoint the commissioners, and fix their compensation, if accepted and exercised by the court renders the act invalid, is quite a different question from' whether the court could be compelled to exercise the power vested in it. This law confers a certain power upon cities of the first grade of the first class, and prescribed a method for carrying that power into effect:- Assuming* that the power may be granted if the method is properly executed, the only question that can arise is whether the carrying out of that method transgresses any constitutional provision, not whether the authorities entrusted with, the execution of the method may- be compelled to exercise their powers. State v Gazley, 5 Ohio St., 14; State v. Judges, 21 Ohio St., 1; Walker v. City of Cincinnati, 21 Ohio St., 14; Kelley v. State, 6 Ohio St., 269.
    VI. The next claim, somewhat elaborated, is, that the city of Cincinnati is indebted for a railroad, a city hall, a city hospital, a city water-works, city university, a city fire-extinguishing plant, a city orphan asylum, and a city workhouse, in an amount aggregating $22,589,000; that the legislature could not impose upon the city, or any municipality, the duty of maintaining these enterprises in the first instance, without its consent; that consequently, it can not, even by annexation, impose upon the citizens of Clifton the duty of assisting in liquidating the debt for such local objects. ,

      The result of plaintiff’s admissions and argumentas that, the legislature could compel the annexation of the territory and the-, citizens within the boundary of Clifton if no municipality existed; but the fact that such territory and citizens are incorporated as a village gives them some right against legislative action which -.is not given to an individual. In other, words-, the constitutional right of- a. municipality is more extensive than the right .of an individual. It seems to. us that this is not. a question of municipal right, but of individual right... The village, as a village, will not be taxed by the city, but its residents will be. If an individual’s land without a municipality can be annexed-without his consent, 'and subjected to municipal taxation, it certainly, can, even though at present it is within the bounds of another municipality. • -
    It is denied that. ■ the legislature has that supreme control -over municipal corporations which will authorize it. to destroy the very existence of a municipality. -Counsel seem to forget that all corporations are organized and sustained by general laws, and that the legislature, by a repealing act, may take the life of every corporation in this state. This court has decided that' the legislature may detach from a municipal corporation part of its territory, and attach it to an adjoining township.. Metcalf v. State, 49 Ohio St., 586. And this-may be done without consent. Baker v. Cincinnati, 11 Ohio St., 542; Cass v. Dillon, 2 Ohio St., 607; Railroad v. Commissioners, 1 Ohio St., 77; Cincinnati v. McCann, 21 Ohio St., 198; Evans v. Dudley, 1 Ohio St., 437; Lehman v. McBride, 15 Ohio St., 573; Hill v. Higdon, 5 Ohio St., 249.

      It becomes important to consider whether an act providing for the annexation of one municipality to another, and transferring to-the latter the property of' the former, and charging upon it the debts and liabilities also, is, within the term, legislative power. When one municipality is attached- to another the latter succeeds to all the rights of the former. Tt becomes liable for-all-the debts, responsible for all the contracts, and it-takes-all - the property.- The principles here’stated have been definitely settled by the highest courts of the country, in -many -well considered - cases. ’ Meriwether v. Garrett, 102 U. S., 472; People v. Morris, 13 Wend., 325; Girard v. Philadelphia, 7 Wall., 1; Cooley on Const. Lim., 192; Dillon on Mun. Corp., sections 54, 67; Mt. Pleasant v. Beckwith, 100 U. S., 514; Chandler v. Boston, 112 Mass., 204; East Hartford v. Hartford Co. 10 How., 511; Layton v. New Orleans, 12 La. Ann., 515; Philadelphia v. Fox, 64 Pa. St., 169; Yarmouth v. Skillings, 45 Me., 133; Terret v. Taylor, 9 Cranch, 43; Mobile v. Watson, 116 U. S., 289; New Orleans v. Clark, 95 U. S., 644; Laird v. City of DeSoto, 22 Fed. Rep., 421; Thompson v. Abbott, 61 Mo., 176; St. Louis v. Allen, 13 Mo., 412; Berlin v. Gorham, 34 N. H., 266; People v. Pinkney, 32 N. Y., 377; People v. Morris, 13 Wend., 325; People v. Wood, 15 N. Y., 532; Railroad Co. v. Ellerman, 105 U. S., 16; Demurest v. Mayor, 74 N. Y., 161; State Bank v. Knoop, 16 How., 369; U. S. v. R. R. Co., 17 Wall., 323; Barnes v. District of Columbia, 91 U. S., 540; Broughton v. Pensacola, 93 U. S., 266; Girard v. Philadelphia, 7 Wall., 1; Watson v. Mobile, 12 Fed. Rep., 768; Knight v. Ashland, 61 Wis., 233; Morfordv. Unger, 8 Iowa, 90; County of Richland v. Lawrence, 12 Ills., 1.

      The power of the legislature over municipal corporations, in the absence of constitutional restrictions, .is supreme, and particularly is this true in the. matter of government. The question of whether there shall be one or more municipal corporations surrounding a large city, or whether they shall all be annexed to such city, is one of public policy within the discretion of the general assembly. It is a question of providing The best government for the people of that particular locality. The general power of the legislature .to pass such laws had never been doubted, and the cases heretofore cited fully sustain the unlimited power of. the legislature. Beach Mun. Corps., volume 1, chapter XII, Laramie County v. Albany County et al., 92 U. S., 307; Yarmouth v. Skillings, 45 Me., 142; Windham v. Portland, 4 Mass., 380; Cheaney v. Hooser, 48 Ky., 346; 9 B. Mon., 346; Ham v. Sawyer, 38 Me., 37; Kelly v. Meeks, 87 Mo., 396; St. Louis v. Allen, 13 Mo., 400; Montpelier v. E. Montpelier, 29 Vt., 20; Berlin v. Gorham, 34 N. H., 266; Gorham v. Springfield, 21 Me., 58; Daly v. Morgan, 69 Md., 460.; Valverde v. Shattuck, 43 Am. Eng. Corp. Cases, 268.
    In our own state the legislature has provided for the annexation of territory to a municipality, and of one municipality to another, by general laws, sections 1589 to 1616, and these laws have been sustained by the Supreme Court. Powers v. Com. of Wood Co., 8 Ohio St., 285; Blanchard v. Bissell, 11 Ohio St., 96; Berlin v. Gorham, 34 N. H., 275; City of St. Louis v. Allen, 13 Mo., 412.
    If thé right to create the corporation in the first instance without reference to the wishes of the citizens therein embraced be . admitted, the right to enlarge its limits subsequently so as to bring’ within its jurisdiction other citizens, without their consent, .must follow as a necessary consequence. Stilz v. Indianapolis, 55 Ind., 515; People v. Carpenter, 23 N. Y., 86; Kelly v. Meeks, 87 Mo., 396; Hurla v. City of Kansas City, 46 Kan., 738; Taylor v. Fort Wayne, 47 Ind., 274; Devare's Appeal, 56 Pa. St., 163; Smith v. Saginaw, 81 Mich., 123; Girard v. Philadelphia, 7 Wall., 1.
    In this state especially, all corporations are subject to the legislative will and control. Section 2 of Article XIII of our constitution provides that corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed. This section includes municipal corporations, and places them absolutely at the mercy of the legislature. There is nothing to prevent it from completely erasing from the statute books the charters of cities of the first grade of the first class, or of any other class. Darlington v. Mayor, 31 N. Y., 164; Lucas v. Bd. of Com. Tippecanoe Co., 44 Ind., 509.
    The case of New Orleans v. Clark, 95 U. S., 644, is the reverse of the present • ease. The legislature of Louisiana, by an act passed March 23, 1874, annexed Carrollton to New Orleans, and provided that the latter should pay the debts of the former, including the bonds issued to the Jefferson City Gas-Light Company. And New Orleans was held liable by the supreme court. The case of Mt. Pleasant v. Beckwith, 100 U. S., 514, is‘to the same effect. The indebtedness in each case was local or proprietary.
    We do not believe that the question of mandatory legislation is presented in this case, and we will not argue it to the court. This court is very familiar with the law in that respect. We simply call attention to State v. Com., 33 Ohio St., 458, and the cases recently decided. The case of People v. Batchellor, 53 N. Y., 128, is overruled by Daunesburgh v. Jenkins, 57 N. Y., 117, which established the doctrine of-mandatory legislation in New York. To the same effect is People v. Flagg, 46 N. Y., 401.
    VII. The territory to be annexed is at present incorporated as villages under the laws of Ohio, and since it is not often that large farming districts are incorporated as municipalities, -the presumption must be that the land in these villages is' used for village and town purposes.- - Under the authorities cited, including the- two Ohio- cases, -we think the power of the legislature- to authorize the annexation of farm lands is ample.. It may be said that the only authorities which doubt the principle are in Kentucky and. Iowa. • The earliest and perhaps'most important Kentucky case is- Cheauey v. Hooser, 9 B. Mon., 330, but this case is limited by the case of Covington v. Southgate, 15 B. Mon., 491. The question in these cases' was the ■ right to tax farm- lands which had been annexed, and it is claimed that such land could not be annexed. As above stated, the court holds that the annexation is lawful, although the-tax is not.- The Iowa cases are to the same effect,- and support, rather- than defeat our claim. Morford v. Unger, 8 Iowa, 82; Butler v. Muscatine, 11 Iowa, 443; Langworthy v. Dubuque, 13 Iowa, 86; Fulton v. Davenport, 17 Iowa, 484; Durant v. Kauffman, 34 Iowa, 194; Goboney v. Cape Girardeau, 58 Mo., 141; St. Louis v. Russell, 9 Mo., 507; Allen v. St. Louis, 13 Mo., 400; Patterson v. Raynolds, 61 Mo., 203; Linton v. Athens, 53 Cal., 588; Martin v. Dix, 52 Miss., 53, Municipality No. 3 v. Michland, 6 La. Ann., 605; Washburn v. Oshkosh, 5 Am. and Eng. Corp. Cases, 227;
      Maddrey v. Cox, 27 Am. and Eng. Corp. Cases, 227; Carey v. Perkin, 88 Ills., 154; 2 Dillon on Mum Corp., 104 U. S., 78; 75 Pa. St., 170; Norris v. Waco, 57 Texas, 635.
   Williams, J.

The statute relied on by the defendant as authority for the annexation, it is attempting to accomplish, is assailed on various grounds, one of ‘which is, that it is in conflict with, section 1, of article XIII, of the constitution, which prohibits the conferring of corporate power by special legislation.

As this objection is predicated largely, if not entirely, upon the first section of the original act, and seems to rest upon the word “.present,” therein contained,- which was eliminated by the amendment adopted before any steps toward the annexation were taken, it is proper to consider the effect of that amendment. We understand the plaintiff’s counsel to contend, that the first section rendered the whole statute obnoxious to the constitutional provision referred to, and, that it could not, therefore, be made valid by amendment, though the unconstitutional feature was thereby removed. Assuming. the premises to be sound, the conclusion, we think, does not follow.

“Where one or more sections of a statute are amended by a new .act, and the amendatory act contains the entire section or, sections amended, and repeals the section or sections so amended, the section or sections as .amended .must be construed as though introduced into the place of the repealed section or sections in the original act, and, there,fore, in view of. the provisions of the original act as it stands after the amendatory sections are so introduced.” McKibben v. Lester, 9 Ohio St., 627.

And it may be added, the other sections are • to be interpreted in connection with, and in view of, ' the amended section or sections, and, in its application to cases arising after the amendment has been made, the whole statute must have the same operation and. effect as if it, then had been reenacted, in terms. Hence, an unconstitutional statute may be amended into a constitutional one, so far as its future operation is concerned, by removing’ its objectionable provisions, or supplying others to conform it' to the requirements ’ of the constitution. It is, therefore, unnecessary, in passing upon the constitutionality of this statute, to consider the first section before it was amended.

1. This court decided, in State v. Cincinnati, 20 Ohio St., 18, that the' extension by a municipality of its corporate jurisdiction, by the enlargement of its territorial boundaries, is the exercise of a corporate power which cannot be conferred by special act; so that, the question here, is whether the statute under consideration, in its amended form, is an act of that nature. The first section provides: “That any city of the first grade of the first class shall have the power to annex to its corporate limits any contiguous municipal corporation or corporations of other grades or classes situate in the county'containing such city of the first grade of the first class, upon compliance with the terms and conditions hereafter recited.” The classification of municipal corporations, adopted by the codification of 1880, has been continued in force. By it, such corporations are divided into cities,' villages and hamlets; and'cities into'two classes, first ‘ and ‘ second, and each class into grades; those of the first class into three grades, with provision fora fourth, and those of thé second class into four grades. At no time since the adop-' tion of that classification has there been more than one city belonging'toeither grade of the first class; Cincinnati being the only city of the first grade, Cleveland the 'only city of the second, and Toledo the only one of the third grade of that class; and, while other cities might have come, or may hereafter come into one or the other of those grades, no doubt one purpose of the classification, if in-' deed that was not its only purpose, was to provide a plan by which legislation applicable alone to each of those cities might be enacted without overstepping the limitations of' the constitution. The validity of legislation of that class was early called in question, but its constitutionality has been repeatedly maintained. It is said, in State v. Brewster, 39 Ohio St., 653: “The objection that the classification was illusory was conceded to be forcible, but did not prevail.” In view of the volume to which such legislation has grown, and is likely to further grow in the future, it is still urged that a better, as well as a sounder rule would have been established, if the objection had prevailed; But, whatever thé individual views of judges on-that subject may now be, the validity of legislation of that kind has been so long recognized, and it enters so largely into the government of the cities of this state, that the evil consequences to be apprehended from overturning the established rule would greatly exceed any likely to result from adhering to it. At all events, as has been declared more than once by this court, the rule has become so firmly established that it is no longer open to controversy. ' State v. Pugh, 43 Ohio St., 98; State v. Hawkins, 44 Ohio St., 109; State v. Hudson, 44 Ohio St., 137; State v. Wall, 47 Ohio St., 499; State v. Smith, 48, Ohio St., 211. . The question is. always open; -however, whether a particular, statute, is within the rule; and it -is held not to he a valid objection , “against legislation, general in form, concerning cities of a designated class and -grade; that -but one city in the state .is within -the partic-. ular classification at the time,of, its enactment;” nor, .“that ..the belief or intent of the ^individual members of. the general assembly.who voted, for the actwqs that it should apply only to a particular city.--” State v. Pugh, supra. Nor is the power of classification confined to that based upon-.population, or the .division of municipalities into classes or grades according-to the number -of their inhab-. itants; and while it is-difficult, .if not impossible,, to accurately define the power by any general rule,, it is settled that proper classification may be based', upon the peculiar situation of municipalities, their conditions,. internal and surrounding, which render different legislation with respect to them necr essary, or especially .appropriate. Bronson v. Oberlin, 41 Ohio St., 476; Costello v Wyoming, 49 Ohio St., 202. And, -whatever the plan.or-.basis of classification,-the- principle upon which .the validity of legislation -with respect to a particular class depends,--is that other municipalities-may, attain to the same class, and become subject to, and avail themselves of, the benefits of the 'act; if -that may be done, the statute, -is a-law of ,a general -nature,- and not invalid though.it-confer corporate power. State v. Pugh, supra; State v. Hawkins, supra. Tested by-that principle,, the statute under which, the annexation- proceeding here involved was instituted, is not-a special.-act. .It is continuing-baits-'.operation,, and adapted to future, proceedings of the same -kind, as well, as to the present one. And, though the defendant is now the only city of the first grade of the first class in the state, every city hereafter coming into that grade and class may, under the same circumstances, without further legislation, avail themselves of the provisions of the act, and exercise the power of annexation in the manner and upon the conditions prescribed in the act. Under existing legislation, every such city will be provided with the same officers and governmental machinery as the defendant, and be subject to the same general laws that are applicable to the defendant; and the like result will ensue with regard to contiguous municipalities of other grades; those contiguous to futnre cities of the first grade of the first class will, without further legislation, be under the same general laws that those now contiguous to existing cities of that grade and class are, and have the ^ame form of government.

■ 2. The act being of a general nature, is it in conflict with section 26, of article II, of the constitution, which requires that all laws of a general nature shall have a uniform operation throughout the state? We think it is not. In order that a law may have such operation, it is not necessary that there be in every part of the state persons or objects upon which it can operate, nor that many persons or objects be within the scope of its operation ; it is sufficient if the law operate uniformly upon all persons or objects, or classes of either, in the same situation and condition, and all that may come within the relation and circumstances for which it provides; and it is clear the statute in question has such operation, since all cities of the class and grade of the defendant, and all that may hereafter attain to that grade and class, may avail themselves of the provisions of this statute, and annex contiguous municipalities of other grades, upon the same conditions and terms under which the defendant is authorized to make such annexation, and by the same mode of procedure. McGill v. State, 34 Ohio St., 228; Senior v. Ratterman, 44 Ohio St., 661.

3. It is further claimed that the statute is repugnant to those sections of the judicial article of the constitution (sections 1 and 4 of article IV), which declare that the judicial power of the state shall be vested in certain courts, among them the courts of common pleas, and, that “the jurisdiction of the courts of common pleas and of the judges thereof shall be fixed by law. ’ ’ The particular provisions of the statute pointed out as being so repugnant, are those contained in sections 5, 6 and 7, which, confer authority on the court of common pleas to appoint three commissioners, fix their compensation, and approve or modify their report. These commissioners are required to make a detailed account of the indebtedness of each municipality included in the annexation, and of the school districts affected by it, and arrange the terms and conditions of the annexation and make report to the court, which may approve it as made, or modify it, and then approve it. When the report is approved, the annexation, it is declared, shall be deemed complete, and the action of the court shall be final. The powers to be exercised under these provisions of the statute, it is said, are not of a judicial nature, and cannot, therefore, be conferred on the court; and, as the annexation cannot be consummated without their exercise, the whole statute, it is contended, becomes inoperative. There appears to be no constitutional obstacle in the way of investing a court or judge with such powers. Nor is there any valid objection to their due execution, if the court or judge chooses to perform them, for third persons cannot complain on the ground that their performance could not have been enforced. State v. Gazlay, 5 Ohio, 14; State v. Judges, 21 Ohio St., 1; Walker v. Cincinnati, 21 Ohio St., 14. In the two cases in the 21st Ohio St., above cited, powers analogous to those pointed out as objectionable in this statute, were conferred on the judges instead of the courts; and in that respect the cases are distinguishable from this one; but the distinction is not important. In the case of the State v. Gazlay, the statute, as appears from the report, authorized the court to assess a tax upon lawyers, which, while in no sense judicial action, is something more than the appointment of a ministerial or administrative board or officer; and this court upheld the law, and enforced the tax. All such powers, when the court is directed to execute them, are necessarily to be performed by the judge, for they can be in no other way; and hence, it can make no substantial difference whether the statute confers them, in terms on the court, or on the judge of the court. It will be found that in many instances, in providing measures of importance in the municipal government of the defendant, and other cities, and in the conduct of public affairs generally, the legislature has imposed upon the court, eo nomine, duties not dissimilar to those the court is required to perform by the statute in question. Thus, it is required to fix the number of justices of the peace in new townships (Revised Statutes, section 566); to approve the report and fix the compensation of commissioners appointed to establish the seat of justice of new counties, and to appoint a director to purchase land and lay the same off into lots, streets, and alleys, in such county seat,, and prescribe regulations for the action of the director in so doing-, and in the disposition of the lots (sections 832-7); to appoint persons to examine the reports of county commissioners, and persons to examine the county treasury (sections 917, 1131); to appoint city hall trustees (section 2559-a-l); a board, of tax commisioners (section 2690-«); trustees of the sinking-fund- (section 2715); directors of certain, universities (section 4098); trustees of children’s homes (sections 7913-37); and to grant licenses to ferries and auctioneers (sections 4222-5), (4256-9); and perform many other similar duties. Other statutes confer like powers upon judges. And in whichever form the power has been given, the judges, so far as we are aware, have conformed to the legislative will, whether they could have been compelled to do so or not; and many important public results have been, and are being accomplished, in consequence. The legislature has, no doubt, empowered the courts and judges to perform these acts, and others of like nature, because in that way the best public agencies necessary in carrying the legislation into effect, are most likely to be obtained; and we are not convinced, either that the legislative judgment in that regard is at fault, or, that the legislative purpose must fail; at least, so long as the courts and judges charged with the performance of the act, interpose no objection. In regard to the power to be exercised by the court of common pleas in approving or modifying the report of the commissioners appointed to adjust the terms of annexation, and the dangers suggested, of impairing the rights of creditors of either of the municipalities, or other private rights, it is sufficient to say, the case has not yet reached that state, where any actual violation of those rights has occurred, or any. probable violation of them is apparent. For aught that can be now known, the terms of annexation may be adjusted to the satisfaction of all concerned; and if the rights of creditors, and others be violated, the individuals affected must seek the needed redress.

4. Another objection made to this statute is, that the object sought to be accomplished by it, in the mode provided, is beyond the range of legislative authority, because it authorizes annexation, and consequently taxation, without the consent of those who are affected by it. The proposition of counsel, as stated in the brief, is:

“If annexation of one municipal corporation to another, be so authorized as to vest in the agencies empowered to effect the union, final authority to require substantial taxes for objects accomplished, and purely local to the’ annexing corporation, to be imposed upon the taxable inhabitants of the municipality proposed to be annexed, then the exercise of power to annex must be founded in mutual consent. ”

That the enlargement of the territorial boundaries of municipal corporations by annexation, and the consequent extension of their corporate jurisdiction including that of levying taxes, are legitimate subjects of legislation, must be admitted; and hence, the extent to which such legislation shall be enacted, both with respect to the conditions and'circumstances under which the annexation may be had, and the manner in which it may be made, rests wholly in the discretion of the general assembly, except in so far as limitations upon its* power are contained in the constitution. Accordingly, legislation has been sustained which authorized the annexation of territory, without the consent of its inhabitants, to a municipal corporation having a large unprovided for indebtedness, for the payment of which the property included within the territory annexed became subject to taxation. Powers v. Commissioners, 8 Ohio St., 285; Blanchard v. Bissell, 11 Ohio St., 96. In both of these cases it was held, that the annexation might be made without the consent, and even against the remonstrance of a majority of the persons residing on the annexed territory; that the lands thus annexed were liable to local taxation for the payment of the pre-existing indebtedness of the municipality; and, that the statute authorizing such annexation was constitutional; the court saying in the first of the cases, that there is no constitutional provision on the subject, and that “it would require a very artificial and unsound mode of reasoning to hold that territory could not be annexed to a town which owed debts, until the owner of such territory were paid a compensation in money for a proportional part of such debt, on the ground that the property annexed was condemned for public use;” and further, that it is not ‘ ‘to be presumed that a municipal corporation has contracted a debt without being correspondingly benefited.” And in Metcalf v. State, 49 Ohio St., 586, a statute was held valid which, in terms, detached from a city, without its consent, territory included in its corporate limits, and attached to it another taxing jurisdiction. The principle established by these cases,. must control the decision of this one, so far as the question now under consideration is concerned, unless, as counsel for the plaintiff contend, the principle is inapplicable on account of the nature of the indebtedness of the defendant, or because the territory proposed to be annexed is already embraced in organized municipalities. The indebtedness of the defendant, which it is claimed distinguishes this ease from those above referred to, is that incurred for what is known as “The Cincinnati Southern Railroad,” for water works, city hall, and some other local improvements aggregating many millions of dollars. It does not appear what was the nature or amount of the indebtedness of the respective municipalities involved in the cases of Powers v. Commissioners, or Blanchard v. Bissell; and it should be presumed, counsel claim, that it was created for the necessary or usual governmental purposes, and not for local improvements. Allowing the presumption, it is not perceived how the amount or nature of the municipal indebtedness can affect the right of annexation, if it be otherwise legal; for the power to bring into a municipal corporation, by annexation, property not theretofore subject to taxation for municipal purposes, and lay taxes upon it to raise funds for the payment of any previously existing municipal debt, necessarily includes the power to do so for the payment of every such debt lawfully incurred. Persons thus brought into the annexing corporation, and their property, like all of its other inhabitants, and their property, receive and enjoy the benefits of all local improvements, and should share the burdens existing when the enjoyment commences; and, in like manner the inhabitants of the annexing corporation enjoy the benefits and share the burdens arising from the local improvements of the municipalities annexed. If a. valid objection to the annexation could be predicated upon the nature of the indebtedness for the payment of which the property included in the annexation may be taxed without the consent of its owners, the reason would seem to be stronger for allowing it where the debt was incurred for purely governmental purposes; for the benefits derived therefrom are not continuing1, nor the results tangible, like those arising from permanent public improvements, but may have entirely ceased, and so be no longer capable of enjojrment by the persons included in the annexation, except in' so far as they may be attributable to good municipal government resulting from the expenditure. But the power of taxation does not rest upon the consent of the taxed, except as that consent is implied or shown in' the enactment of laws by the representatives of the people, or is made requisite by legislation; and, therefore, taxes may be imposed, or authorized by the legislative body, within its discretion, for all public purposes, so long as the fundamental law is not violated. We cannot think that because the annexation authorized by the statute may result in the taxation of property without the owner’s consent, for the payment of the lawful indebtedness of the annexing corporation, the passage of the act was a usurpation of legislative power. If either of the municipalities sought to be annexed should be the owner of private property which may be taxed, it stands on the same footing as other owners of private property; its rights can be no greater than theirs, and •hence, there can be no more necessity for its consent, than for theirs; and property held by it for public purposes, will continue to be held for such purposes, after the annexation is completed, until other lawful disposition is made of it. Nor do we think the general assembly exceeded its legislative power, in authorizing the annexation of municipalities of a lower grade, to one of a higher grade. Grant its power to annex, or provide for annexing to a city or village, adjacent territory against the will of its owners and occupants, and there does not appear to be any satisfactory reason for denying’ the power where the territory is coextensive with the boundaries of another municipal corporation, especially when there is no such limitation in the constitution. It is maintained by. very high authority, that it is clearly within the legislative discretion, to extend or restrict the boundaries of municipal corporations, “or consolidate two or more into one.” Cooley on Constitutional Limitations, 228, 6th ed.; and it is declared by Mr. Justice Clifford, in Mr. Pleasant v. Beckwith, 100 U. S., 514-524, to be the constant practice for legislative bodies to divide or consolidate municipal corporations, and that such action is often necessary for the public interests and convenience. And in Meriwether v. Garrett, 102 U. S., 472-511, it is said by Mr. Justice Field: “Municipal corporations are mere instrumentalities of the state for the more convenient administration of local government. Their powers áre such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure. This is common learning, found in all adjudications on the subject of municipal bodies and repeated by text writers. There is no contract between the state and the public, that a charter of a city shall not be at all times subject to legislative control. * * * There is no such thing as a vested right held by any individuals in the grant of legislative power to them.” Many other authorities much to the same effect, are cited in the brief of counsel for the defendant which we deem it unnecessary to notice further. We have been referred to none maintaining the contrary doctrine, and have found none. In the light of these authorities, we would be unwarranted in holding that the legislature transcended its powers in passing the act in question, and, observing in this case the well established rule, that the courts should not declare a statute unconstitutional unless convinced that it is clearly so, we hold that the statute, in all respects, is constitutional and valid.

5. The remaining question, is whether the statute has thus far been complied with. The plaintiff claims it has not been in the mode of submitting the question of the annexation, at the election held under the statute; that the question of the annexation of all the villages sought to be annexed was the only one submitted, so that, the electors of each village was denied the right to vote on the question of its annexation, and could only vote for or against the annexation of all. This seems to be in strict conformity with the statute. The second section .provides that the city desiring to annex any contiguous municipal corporation or corporations, shall pass an ordinance declaring such intention, and describing- the municipal corporation or corporations it desires to have annexed; and section three provides that when the city desiring the annexation, determines in favor of the same, its mayor, and the mayors of the different municipal corporations sought to be annexed, shall each issue a proclamation, notifying the qualified electors of their respective municipalities, of the time and place of holding an election “to determine whether such municipalities shall be annexed. ’ ’ There is but one question to be determined, and that is whether all the municipalities sought to be annexed, if more than one, shall be annexed; and in the determination of that question, the electors of all such municipalities, and of the city desiring the annexation, are equally interested. The statute further provides that the annexation shall be deemed to have carried, if a majority of the votes “cast upon such proposition, shall be in favor of annexation.” We find no provision in the statute which contemplates a separate vote by the electors of each municipality upon the question of its annexation.

The defendant, having shown that it is lawfully possessed of the privileges and franchises it is charged with exercising, is entitled to judgment.

Judgment accordingly.

Shauck, J., dissents.

Spear, J., not sitting.


source: Caselaw Access Project

author: Minshall, C. J.

license: Public Domain

text:
    Heddleston, Supervisor, v. Hendricks.

      County road — Remaining open seven years — Section 4668, Revised Statutes — Authority of commissioners to change public highway — Right of adjacent landowner.

    1. The provision of section 4668, Revised Statutes, that any county road that shall remain “unopened” for seven j^ears after the order is made for opening it, shall be declared vacated, does not apply to roads located substantially upon then existing traveled ways.
    2. An order of the commissioners of a county, directing a change in the location of a public highway, made at the request ’of a landowner, but not in a regular proceeding for that purpose confers no authority whatever for making the change.
    3. The right of an adjacent landowner to inclose by a fence, however constructed, a portion of a public highway, cannot be acquired by adverse possession, however long continued.
    (Decided March 12, 1895.)
    Error to the Circuit Court of Washington county.

      Nye & Follett, for plaintiff in error.

      Jasper Lick and W. B. Loomis, for defendant in error.
   Minshall, C. J.

The plaintiff below, George Hendricks, commenced an action in the common pleas of the county, to restrain the defendant, a supervisor, from cutting down and removing the hedges and destroying the stone wall of the plaintiff, along a highway in the district of the supervisor. The defendant answered, averring that the hedge and stone wall encroached upon the hig’hway that had long before been laid out and established over the premises where the hedge and wall stands. In reply, the plaintiff admitted that a road had been surveyed through the premises, but denied that it had ever been opened on the line surveyed, but says that it was opened on a line along side thereof, and had been traveled for over twenty-Eve years. After judgment in the common pleas the case was appealed to the circuit court, where, upon the trial, at the request of the defendant, the court found its conclusions of fact and of law separately, as follows :

uFwst — That in the year 1862, the county commissioners of Washington county, by proceedings duly had in accordance with law, duly located and established a public road extending through the premises described in the petition herein, and through premises lying northerly thereof; that through said premises lying northerly the road was about that time actually opened on the line established, and through the premises in dispute, nothing being required to be done for the opening. The travel through that section was over and by way of an old traveled way following substantially the bed of the run near the east line of plaintiff’s premises, which continued to be the state of affairs until about the year 1868, when, upon the petition of one Talbot, the then owner of said premises, the county commissioners aforesaid by a writing signed by them, but of which no official record is found or known to be made, ordered said road, at the point in controversy, to be opened with .its center line upon the division line between the lands of said Talbot and Dorsey, who owned the land lying immediately east thereof, as said road had been originally petitioned for, and that thereupon, in the year 1868, said Dorsey caused the line fence on said division line to be set eastwardly twenty feet, and said road was, at that point, opened forty feet wide, with its center on said division line, and has ever since, until within about two years, past, been maintained, publicly worked and traveled, on that line; that in said year 1868, and after said road was so opened on said division line, said Talbot, plaintiff’s grantor, erected along and near the westerly bank of said run, a substantial wooden structure or wall, at an expense of about $500.00, which wall was between 300 and 400 feet long, and was constructed by first digging a' trench along the bank of the run, and was made of logs laid up— one on the other — bolted together with timber ties extending westward at right angles to said wall of logs and framed or bolted into said wall, constituting with said wall a sort of crib work which was filled up with earth and gravel, and on said wall erected a-three-board fence; that said wooden wall was located so as to inclose with said Talbot’s land twelve to twenty-eight feet in width of the forty feet road as established by said commissioners in 1862, but no part of said road as opened as aforesaid in 1868; that said wooden wall was located upon or near the line of a fence which was there before 1862, arid up to the time of erecting said wall; that in 1875 said wooden wall was washed out and carried away by a great flood, and ’ that thereupon said Talbot erected (substantially upon the line which said wooden wall had occupied) a stone wall four feet high and about three feet thick, and filled in behind it, and to the height of said wall, on its west side, with gravel, and planted a hedge just inside of it; that said stone wall cost about $700.00; that said wooden and stone walls have been continuously maintained ever since 1868 to the pres-' exit time. That said walls were so placed and such exclusive possession maintained under claim of right by said Talbot, and his grantee, said plaintiff, that when said Talbot erected said wooden wall he knew the lines of the location and establishment of said public road as established as aforesaid by the commissioners in 1862.

Second — That no proceedings were ever taken for the vacation or abandonment of said public road, as established by the commissioners in 1862, nor was there any vacation or abandonment thereof other than as may result from the fact found in the first finding.
Third — That the defendant never threatened to remove or relocate said public road 'and never threatened to open any road over or through the premises described in the petition herein, or to cut down any hedges or to tear down or destroy any stone wall or orchard, or to cut up or injure said premises, except that the defendant did threaten to open to its full width of forty feet the public road as established in 1862, and in so doing would necessarily tear down substantially all of said stone wall and hedges and cut down trees in said orchard. ’ ’ *

As conclusions of law from the foregoing facts the court finds:

uFirst — That the right of the public to that part of the said public road inclosed by said wooden structure and said stone wall has been lost by reason of the adverse possession thereof by plaintiff and his predecessor in title, for the period of more than twenty-oxie years' prior to the institu tion of this proceeding.
Second — That the right of the public to that part of the said public road inclosed by said wooden structure and by said stone wall has also been lost by reason of the facts stated in the first finding of facts above set forth. ”

And thereupon the court rendered judgment for the plaintiff, restraining the defendant as prayed for in the petition. The defendant excepted to the conclusions of law, and the judgment of the court therein; and prosecutes this proceeding for the reversal of the judgment, and for judgment in his favor on the facts as found.

It is quite clear, as we think, that the order, found to have been made by the county commissioners in 1868, on the petition of Talbot, the then owner of the land, that the road, as then traveled, should be opened on the line between himself and Dorsey, cannot avail the plaintiff below. There was no authority for the act of the commissioners, and it does hot therefore bind the public. This is settled by the decision in Anderson v. Commissioners, 12 Ohio St., 635.

Nor can it be claimed that the road as established in 1862, became vacated by lapse óf time under section 4668, Revised Statutes. By the construction given to this section in McClelland v. Miller, 28 Ohio st., 489, 503, and in Grove v. Graham, 41 Ohio St., 303, the road, as established by the proceedings, being a traveled way at the time, did not require a formal opening under the order of the commissioners. It did not, therefore, remain “unopened” for anytime from the making of the order, within the meaning of this section. It only applies, as said by Wright, J., in McClelland v. Miller, to roads which have been authorized by the commissioners, but have never in fact been opened.

The conclusion of law that the rights of the public to the portion of the road, inclosed by the wooden structure and stone wall, had been lost by the adverse possession of the plaintiff and his predecessors in title, presents a question about which there is more room for doubt. The general rule is that the statute of limitations does not apply as a bar to the rights of the public, unless expressly named in the statute; for the reason that the same active vigilance cannot be expected of it, as is known to characterize that of a private person, always jealous of his rights and prompt to repel any nvasion of them. But in the cases of The City of Cincinnati v. The First Presbyterian Church, 8 Ohio, 298, and of The City of Cincinnati v. Evans, 5 Ohio St., 594, a different rule was applied; and, in the first case, the right of the city to a portion of. its public square, occupied by the church, and, in the other ease, its right to a portion of one of its streets, encroached upon by the building of the defendant, a private person, was, in each case, held barred by an adverse possession of twenty-one years. But these cases are regarded as exceptional; and confined to municipal corporations in cases where their possession has been disturbed by the erection of large and valuable structures under such circumstances as preclude the idea that the encroachment was simply permissive on the part of the municipality. Thus, in Lane v. Kennedy, 13 Ohio St., 42, where a landowner extended his fences so as to include a portion of the highway, not then used or needed for the public travel, and continued the same for twenty-one years without any objection, it was held that such partial encroachment was not -necessarily adverse to the public, nor inconsistent with its easement,- and therefore constituted no bar to its reclamation by the supervisor, when required by the .public travel. The encroachment in this case was upon a highway within the town of Oxford, and which then formed'part of one of its streets. And Peck, J., in distinguishing the case of Cincinnati v. Evans, observed that, “by a reference to the facts therein stated, it might with equal, if not greater propriety, have been placed upon the ground of an estoppel in pais on the part of the city authorities; the building having been located by the city surveyor and upon lines previously established and built upon.” Again, it is held in McClelland v. Miller, 28 Ohio St., 488, that an encroachment, on a highway, regularly laid out and established, by putting up a fence or planting a hedge within the established limits, does not constitute such, adverse possession as will confer title. After reviewing the previous cases, Wright, J., said: “When roads are laid out and travel is limited, necessity may not require that the whole width should be opened when a less quantity answers every- purpose. But the fact that a portion of the highway remains in the possession of adjoining owners, is merely matter of suffranee, from which rights cannot accrue. If, as in 5 Ohio St., 594, such proprietor should erect permanent improvements upon the ground in question, indicating an intention permanently to appropriate the land, a. question of adverse possession might arise.” He then adds: “A fence is not such permanent improvement. Nor does the fact that a hedge was planted, vary the case. The public have a mere easement for the road. The proprietor still owns the fee, and may use it in any way not inconsistent with the purposes of a road. He may plant trees; he is entitled to the herbage; and the setting out of a hedge entirely comports with his own rights, while it does not conflict with those of the public. ’ ’

More recent cases place the right of the public as against encroachments on its highways, however long continued, on the ground that they are public nuisances, in favor of which the statute of limitations does not run. Section 6921, Revised Statutes, provides among other things, that: “Whoever obstructs or incumbers, by fences, building, structures, or otherwise, any public ground or highway, or any street or alley of any municipal corporation, shall be fined not more than five hundred dollars.” This has been the law from as early as 1857. In Railroad v. Commissioners, 31 Ohio St., 338, the right to maintain an obstruction, the abutments of an overway bridge, that impeded the public travel at the crossing of a highway, was sought to be sustained, against a suit for abatement, on the ground of adverse possession for over twenty-one years. Boynton, J., said: “No principle is more firmly settled at common law, than that no length of time can legalize a public nuisance. This principle has not been distinctly affirmed by any reported case in this state; yet in all cases where an effort has been made to acquire title to a portion of a public highway by adverse possession and enjoyment outside of a municipal corporation, such effort has failed.” And, after a full examination of the question on the authorities, it was there held, that the statute of limitations is not available as a defense in such cases. The case was affirmed and followed in Railroad Co. v. Commissioners, 35 Ohio St., 8.

In view of the cases, and what seems to be the settled law on the subject, it appears to xis that the circuit court erred in its conclusions of law from the facts found, that the landowner in this case, had by adverse possession, acquired the right to maintain his encroachment on the highway. The road was duly laid out and established in 1862. In 1868, Talbot, the grantor of the plaintiff, inclosed a portion of it, by constructing a wooden wall some three hundred feet in length, along the creek. In 1875, this wooden wall was washed out by a flood, which was then replaced by a stone wall, some four feet in height, and a hedge was planted on the inside. But this wooden wall and also the stone wall were built for, and simply answered the purpose of a fence. * It inclosed with the lands of the plaintiff, a substantial portion of the highway. The exigencies of the public travel required that the wall should be removed, and the road opened to its full width. This the supervisor was proceeding to do when enjoined. ■ The wall and hedge constituted an encroachment on the highway, and therefore a nuisance, which could not ripen into a right, however long continued.

Judgment reversed, and petition of the plaintiff below dismissed. '


author: By the Court.

text:
    Kimmel et al. v. Paronto.

      Exemptions allowed married woman — -Living apart from husband —Section 5319, Revised Statutes.

    Under section 5319, of-the Revised Statutes, a married woman is entitled to the benefit of all exemptions allowed by law to the heads of families, though she be living apart from her husband, and have no child or children living with, or supported by her.

      Parker & Moore, for plaintiffs in error.

      Frank Taylor, for defendant in error.
   By the Court.

The record shows that a judgment was- recovered against..a married woman, and an execution issued upon it was placed in the hands of a constable who levied the same on the wearing apparel and household goods of the judgment debtor, who claimed the property was exempt from execution, and demanded that it be set off to her as so exempt; but the constable refused to comply with the demand, sold the property, and applied the proceeds in satisfaction of the judgment. The debtor thereupon sued the constable and the sureties on his bond, for the value of the property, and recovered. At the time of the levy and sale the debtor was a resident of Ohio, and not the owner of a homestead, nor of any personal property except that levied on and sold, but she was living separate from her husband, and supporting herself, having separated from him about five years prior to the levy, in consequence of his intemperance and failure to support her; and she had no daughter or minor child living with her. The question is, was the property exempt? We think it was. Section 5319 of the Revised Statutes, provides that: “When a married woman sues or is sued, like proceeding shall be had, and judgment rendered and enforced, as if she was unmarried, and her property and estate shall be liable for the judgment against her, but she shall be entitled to the benefit of all exemptions to heads of families. ’ ’ This last clause of the section does not mean, that to entitle the married woman to such exemptions she must be the head of a family, but that she is entitled to all exemptions that are allowed by law to the head of a family, and it is not essential to her right to them that she shall be living with her husband, or have a child or children living with, or supported by her."

Judgment affirmed.