author: BRINKERHOFF, J.

text:
    Mark E. Reeves v. The Treasurer of Wood County et al.
    1. The power to authorize assessments, as distinguished from taxes proper, is comprehended in the general grant of legislative power to the general assembly.
    2. Such assessments are not embraced within the meaning of the word “ taxing ” in the second section of the twelfth article of the constitution.
    3. The power to authorize assessments for the construction of free turnpike roads, and the opening of drains, as well as for the improvement of streets and sidewalks, exists to the same extent under the present constitution as under that of 1802.
    4. The act of May 1, 1854, “ authorizing the trustees of townships to establish water-courses,” etc., and the amendatory act of April 14,1857, are in contravention of the nineteenth section of the bill of rights, inasmuch as they authorize an appropriation of private property without reference to the public welfare.
    This is an application for leave to file a petition in error in this court to reverse a judgment of the court of common pleas of Wood county, rendered on the 15th of February, 1859.
    The question presented to the court below arose on demurrer to the petition of the plaintiff, who is now plaintiff in error.
    The petition, after stating that the plaintiff was, and for more than three years (then) last past had been, the owner in fee simple, and in possession of, certain real estate, particularly described, situated in Jackson township, Wood county, Ohio, contains the following allegations and prayer:
    “ That there is assessed on the tax duplicate of Wood county, Ohio, for the year of our Lord eighteen hundred and fifty-eight, for collection against said real estate, the sum of one hundred and three dollars and sixty-four cents, of which amount the sum of one hundred dollars was assessed by the auditor of said Wood county, Ohio, against said land for the payment of a certificate issued by the trustees of Jackson township aforesaid, to one Moses Dubbs which said certificate, together with all other proceedings in said matter, was issued under and based on the provisions of an act of the legislature of the State of Ohio, passed May 1, 1854, entitled ‘ an act authorizing the trustees o f townships to establish water-courses and locate ditches in certain cases/ and an act of the legislature of the State of Ohio, to amend the same, passed April 14, 1S57, entitled ‘ an act to amend the act authorizing trustees of townships to establish water-courses and locate ditches in certain cases, passed May 1, 1854.’ And plaintiff says, as a matter of law, upon information and belief, that said several acts of the legislature are unconstitutional and void. Plaintiff says that on the 20th day of December, A. D. 1858, he tendered the treasurer of Wood county, Ohio, three and sixty-five one hundreths dollars in full of all taxes legally due and chargeable against said real estate, which he refused to receive, and threatens to return the same delinquent, and charge penalty thereon. And he now brings said sum so tendered as aforesaid, into court. Plaintiff asks judgment that said treasurer and auditor of Wood county, Ohio, may be restrained from returning said real estate as delinquent, or charging any penalty thereon, or otherwise attempting to collect said assessment. And the plaintiff prays said assessment for the payment of said ditch or drain certificate be declared illegal and void, and without authority of law; and that said Moses Dubbs be ordered to pay the costs of this suit; and for other proper and suitable relief.”
    To this petition the defendants demurred, on the ground that the same does not state facts sufficient to constitute a cause of action.
    On the hearing of the demurrer, the court below rendered the following judgment:
    “ This cause came on to be heard, on the demurrer of the defendants to plaintiff’s petition, and the same being argued by counsel, the court, being fully advised in the promises, do find that said petition does not state facts sufficient to constitute a cause of action, in this, that 1 an act authorizing the trustees of townships to establish water-courses and locate ditches in certain cases/ passed May 1, 1854, and the ‘ act to amend the act authorizing the trustees of townships to establish water-courses and locate ditches in certain cases, passed May 1,1854/ passed April 14, 1857, are constitutional and valid enactments. It is therefore considered that said demurrer be and the same is hereby sustained, and that defendants go hence without day, and recover of plaintiff their costs, taxed at $-, and that execution issue therefor, as well as for defendants’ costs, taxed at $-. Plaintiff excepted to said order and judgment.”
    To reverse this judgment, application is made to this court for leave to file a petition in error.
    The plaintiff in error claims that the court below erred—
    In sustaining the demurrer to the petition;
    In holding the acts of the legislature, set out in the judgment, to be constitutional and valid; and
    In rendering judgment for the defendants and against the plaintiff.

      James Murray, for plaintiff in error.
    We claim the acts under consideration to be unconstitutional and void—
    1st. Because they authorize an appropriation, without the consent of the owner, of private property for private purposes. McCoy v. Granby, 3 Ohio St. Rep. 463 ; McArthur v. Kelley, 5 Ohio Rep. 143; Geisy v. C. W. & Z. R. R. Co., 4 Ohio St. Rep. 327.
    2d. We claim the act to be unconstitutional, in that it authorizes the trustees of townships to compel a party benefited by the construction of -the ditch, to perform a certain share of the labor, in default of which the value thereof is assessed against and collected from him; in other words, a party’s proportion of the labor is assessed against him as a tax or charge, and he has the privilege of performing the labor in place of paying the money. Hill v. Higdon, 5 Ohio St. Rep. 243.
    3d. The act under consideration is also objectionable, in that it seeks to confer authority on the trustees of a township to compel a man to improve his land, and to direct the time, mode and manner in which it shall be done.
    4th. Again, we regard these acts as unconstitutional, because they provide no adequate or certain compensation to the party whose land is taken. Lamb & McKee v. Lane, 4 Ohio St. Rep. 167.
    5th. Again, if the trustees refuse to grant compensation, no right of appeal is allowed.

      George Strain, for defendants in error.
   BRINKERHOFF, J.

Accompanying the application for leave to file a petition in error in this case, is an agreement of counsel for the respective parties, that the case shall be finally decided, and the judgment affirmed or reversed, upon the present application.

Ordinarily, the court would not act upon such an agreement of counsel, and thus give a recent case preference over other cases pending on our docket. But we have thought best to do so in the present case, for the reason that it is supposed to be a matter of considerable public interest that the constitutional questions involved in the case should have an early adjudication.

The first section of the amendatory act of April 14,1857, under which the proceedings complained of in this case were had, and the provisions of which, so far as they have any bearing upon the questions under consideration, are in no way qualified by the remainder of the act, is as follows :

“ That the township trustees shall have power, on the application of any party, to enter upon any land in their township to view any water-course or proposed ditch for the purpose of draining any land held by more than one person, and to cause said ditch or water-course to be located and set apart to each person interested in such ditch or water-course, such portion of the same to he by him opened, as shall be deemed by them right and just, according to the benefit to be derived by such person from the opening of said ditch or water-course ; and also to assess against him such portion of the expenses and damage hereafter provided for, as according to right and justice he ought to pay.”

This act, it is argued, is in contravention of the second section of the twelfth article of the constitution, which provides “ that laws shall be passed, taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money,” etc.

And the question is now presented: Is the assessment authorized by this act embraced within the meaning of the term “taxing,” in the above clause of the constitution ? If it is, the act and the assessment are unconstitutional and void, and there is an end of the inquiry; if not, the case is open to further investigation.

Some very important and leading points in this inquiry have been already considered and settled by this court, in the case of Hill v. Higdon, 5 Ohio St. Rep. 243, and reaffirmed in several succeeding cases. The question involved in that case was as to the constitutional validity of an act of the general assembly, under the present constitution, authorizing an assessment, by the corporate authorities of Cincinnati, upon the lot of the plaintiff in error, according to the front foot, of the expense of grading and improving the adjacent street. That case was decided, after full and repeated argument (in that and other eases), after many doubts and long and careful consideration. And we all agree, that notwithstanding the doubts at first entertained, the conclusions arrived at rest upon a foundation of reason unanswerable and impregnable.

The main points decided in that case, were—

.. 1st. As respects the power of the general assembly to authorize assessments for the improvement of streets by cities and villages, it is included within the general grant by the constitution, of legislative power to the general assembly.

2d. That such assessments are not within the purview of the word “ taxing,” in the clause of the second section of the twelfth article of the constitution, requiring all property to be taxed “ by a uniform rule, according to its true value in money.”

3d. That the clause of the second section of the twelfth article of the constitution above given, is only “ applicable to, and furnishes the governing principle for, all laws levying taxes for general revenue, whether for state, county, township, or corporation purposes.”

4th. That “ in the exercise of the power of assessment by municipal corporations, legislative discretion in apportioning the burden according to benefits, is left as broad and unfettered as under the constitution of 1802.”

Eor me to attempt to give the reasoning from which these conclusions were drawn, without quoting the opinion in that case at length, would be but to weaken its force, and I shall not, therefore, attempt it; but, simply for the purpose of making myself intelligible in my subsequent remarks, I may say that, although such assessments are a species of taxes, and included within the term taxes, in its most general sense, yet there has been established, by the decisions of courts of high authority, a distinction between assessments and taxes proper; and that this distinction is, by irresistible implication, recognized by the present constitution, in the sixth section of the thirteenth article, which is as follows:

“ The general assembly shall provide for the organization of cities and incorporated villages by general laws ; and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.”

Unless we admit that the framers of this constitution were guilty of nonsensical tautology, the use, in this section of the constitution, of both words, “taxation” and “ assessment,” is, by necessary implication, a recognition ■of the distinction between them, and also of the existence of the power to authorize assessments; for a constitutional mandate upon a legislative body to restrict and provide against the abuse of a power, presupposes its existence.

Taxes are impositions for purposes of general revenue; assessments are ^special and local impositions upon property in the immediate vicinity” of an improvement for the public welfare, “ which are necessary to pay for the improvement, and laid with reference to the special benefit which such property derives from the expenditure.” The clause of our constitution last above quoted, was borrowed, substantially, and almost literally, from the constitution of New York of 1846; and in a case presenting a similar question to that in Hill v. Higdon, arising under that constitution, the same principles were asserted and distinctions defined as in Hill v. Higdon, and upon similar grounds. The People v. The Mayor, etc., of Brooklyn, 4 Comst. Rep. 440.

This much being settled by the case of Hill v. Higdon, the question is now, for the first time, presented to this court, whether the power in the legislature to authorize assessments is limited to its exercise by cities and villages, or whether it still exists in all its integrity, and to the full extent to -which, it was, prior to the adoption of the new constitution, exercised and recognized in the legislation of this state and in that of the other states of the union.

It is urged in argument, that inasmuch as the power of authorizing assessments, as distinct from taxes proper, is, by the language of the constitution, recognized only in connection with its exercise by cities and villages, therefore, under the maxim expressio unius, etc., the power of the legislature to authorize assessments must be limited to its exercise by cities and villages. This argument would be entitled to very great, and, it seems to me, conclusive weight, if the clause of the constitution referred to contained, or was intended to express, a grant of the power of assessment as distinct from that of taxation proper. In that case, the grant being in terms limited, the maxim, expressio unius, would fairly apply, and all implication of power beyond the terms of the grant, would be held to be excluded. But such is not the case. That clause of the constitution does not contain, nor is it intended to express, any grant of the power of assessment. It merely mentions the power of assessment as an existing power, and does this simply in a mandate upon the legislature to restrict its exercise, and provide against its abuse by cities and villages. There being in this clause of the constitution no express grant of the power of assessment, and no affirmative declaration of its existence, but a recognition of its existence by implication only, there is no case to which the maxim, expressio unius, etc., can legitimately apply. By providing .against the abuse of a power, the constitution, by inevitable implication, recognizes the existence of that j)ower; but because the framers of the constitution thought it necessary to guard against its abuse by a single agency only, it by no means follows that it was intended to restrict its exercise to that agency alone. It argues this, and this only, that the framers of the constitution thought the power peculiarly liable to abuse when committed to cities and villages; and against its abuse by them, they thought it wise to enjoin it upon the legislature to guard. This clause of the constitution having, by necessary implication, recognized the existence of the power of assessment, and, by like* implication, distinguished it from the power of taxation, as defined and regulated in other parts of the constitution, its effect upon the question before us is at an end; and, it seems to me, leaves the power of assessment intact, in all its integrity and extent, the same as it was under the constitution of 1802.

Although the argument for a distinction between the power of assessment and that of taxation proper, is greatly strengthened by the implications derived from this clause of the constitution, yet that distinction by no means depends on those implications alone. The distinction was judicially recognized and established long before either the present constitution of Ohio or that of New York, from which the clause referred to was borrowed, were framed. Of this the case of The matter of the Mayor of New York, 11 J. R. 77, is an instance. It appeared in that case, that by a general statute of the state, it was proved “that no real estate belonging to any church or place of public worship,” etc., “ shall be taxed by any law of this state.” And the lots of certain churches in the city of New York had been assessed by the authorities of the city, for the improvement of streets adjacent to them. And the assessment was sustained by the court, on the ground that it was not a tax within the meaning of the general statute.

The power of the legislature to authorize assessments, then, being left, in all its breadth, unfettered by the present constitution, as it was by the constitution of 1802, the meaning of the term, and its reach and scope, can be determined only by a reference to legislative history, and to the approved and established precedents which it affords. Referring, then, to legislative history, it is a matter too notorious and familiar to -need particular remark, that probably ever since the existence of incorporated cities or villages in our state, the power of assessment, under delegated legislative authority, has been in constant and active exercise for the improvement of streets and sidewalks.

As early, at least, as January 29, 1846, some five years before the present constitution took effect, and beginning with the act of that date, “ to lay out and establish a free turnpike road from the town of Perrysburg to the north line of 'Wood county,” a policy was inaugurated for constructing, in the northwestern quarter of the state, free turnpike roads, through the medium of corporations created for that purpose, and authorizing the assessment for this purpose of a special tax upon lands situate within a given distance of the proposed road. A series of such acts of incorporation, an enumeration of which would be tedious and useless, differing in the detail of their provisions, but similar in principle, were passed from year to year, up to the time of the taking effect of the present constitution.

On the 26th of March, 1841,'was passed an act “providing for the appointment of commissioners of sewers in certain counties in this state.” This act was local in its application, but embraced within its purview forty-one enumerated counties. It authorized, under particular regulations therein prescribed, th'e location and construction of dams and drains, and the removal of obstructions to watercourses, to facilitate the drainage and prevent the overflow of swamps, marshes and flat lands, and required the cost of the work, as well as the damages accruing therefrom to individual proprietors, to be assessed upon lands benefited thereby, in proportion to such benefits. This act remained in force and unamended until the constitution of 1802 was superseded; it was amended April 30th, 1852, and on the 24th of February, 1853, the original and amended acts were repealed and superseded by a general act, and that was repealed and superseded by the act of May 1, 1854, which, with the amendatory act of April 14, 1857, are still ostensibly in force, and under which the proceedings complained of in this case were had.

Tbis is a-brief and condensed outline of the legislation of our state on these subjects; and from it the conclusion is obvious, that at the time of the formation of the new constitution, assessments for purposes of local improvement, in the construction of free turnpike roads, and the drainage of swamps and low lands, must have been as familiar to our people and to the members of the constitutional convention as were assessments for streets and sidewalks in municipal corporations.

In respect to the legislation of other states on matters of this kind, the language of Ruggles, J., delivering the opinion of the court of appeals of New York, in The People v. The Mayor, etc., of Brooklyn, embraces all that need be said on the subject. He says:

“ Taxation similar to that now in controversy has been sanctioned by long usage in this state and elsewhere.
“ In England, the commissioners of sewers assess the lands affected by their operations, without reference to other locality. (23 H. S, ch. 5, sec. 3; 4 Evans’ Stat. 26.)
“ In Massachusetts, meadows, swamps and low lands, may be assessed among the proprietors for the expense of draining the same, without reference to any political district, and in proportion to the benefit each proprietor derives from the work. (E. S. of Mass. 673.) In Connecticut, the same power is given by statute to commissioners for draining marshy lands. (Stat. of Conn., ed. of 1839, p. 544.)
“ In Pennsylvania, South Carolina and Louisiana, taxation upon this principle has been practiced and sanctioned as constitutional. (9 Dana 524.) And in New Jersey, Maryland, Virginia, Ohio and Indiana, it is understood that local taxation upon similar principles is authorized by law. In the colony and State of New York, the system of taxation for local purposes by assessing the burthen according to the benefit, has been in force for more than one hundred and fifty years. It was applied to highways in the county of Ulster in 1691. (Bradf. Laws 45.) The power was given to the corporation of New York in the same year. (Ib. 9.) This statute remained in force in 1773, when Van Schaack’s edition of the statutes was published, and no evidence of its repeal is found until 1787, when it seems to have been revised, and its provisions re-enacted under the state constitution. (Van Schaack’s Law 8, 9 ; 2 Jones & Var. 152 ; 1 Greenl. 443.) The colonial statute was, doubtless, in force when the state constitution was adopted. It is not unworthy of remark, that in April, 1691, a bill of rights was passed for the security and protection of the people of the province. The statute authorizing the assessments first mentioned was passed afterward, during the same year. In January, 1787, an act was passed declaring the rights of the citizens of this state, and prohibiting, among other things, that any person should be deprived of his property except by due course of law. The statute of 1787, authorizing street assessments in the city of New York, was passed by the same legislature, and sanctioned by the same council of revision, which had assented to the bill of rights. * * * *
This system of taxation was in force at the time of the making and adoption of our first, second and third constitutions, and has stood in our statute books along with the constitutions, from 1777, until now, without prohibition or restraint. Sales of real estate to large amounts have been made, and the lands so sold are now held on the faith of the validity of these assessment laws. Proceedings under them have been brought before the supreme court for review, continually during the last thirty years. They have been litigated often on the ground of irregularity, and sometimes upon constitutional objections. They have been confirmed in cases almost without number. If the uniform practice of the government from its origin, can settle any question of this nature, the power of the legislature to exercise this kind of taxation would seem to be established by it.”

It has been strongly urged, that tbis power is peculiarly liable to abuse. It is liable to be abused; perhaps peculiarly so. But so is all government, and all governmental powers. Yet government is, nevertheless, a necessity among men. It is a very bad government, indeed, which is not better than the inevitable anarchy and outrage which follows the absence of all government. And the fact that a power is liable to be abused affords no conclusive argument against its existence.

The published debates of the constitutional convention throw no light upon this question. So far as the public action of that body is concerned, the matter seems to have been passed upon sub silentio.

Perhaps we are not at liberty to argue and infer the existence of the power in question from its apparent necessity. Yet, if such necessity exists, it certainly affords a sufficient reply to the argument against the existence of the power drawn from its liability to abuse. Let us look for a moment at this aspect of the case.

The exercise of certain powers of government are often imperiously demanded by peculiar topographical and climatic conditions. In Holland, nearly the whole surface of which is lower than the sea at high tide, the regulation of dikes and drains becomes a necessary function of government. So does the matter of irrigation in Egypt, Peru, and some other countries. It is notorious that a large district in the northwest portion of this state, not less probably than one-sixth the whole, and possessing elements of unsurpassed fertility — while it is sufficiently elevated above Lake Erie on the one side, and the basin of the Ohio River on the other, and almost every where with sufficient inclination in some direction, readily to carry off its surplus waters, if there were channels for its conveyance —has yet such an unbroken surface, and is so destitute of ravines and natural channels, as to render the appellation of “ black swamp ” appropriate and familiar, and the district proverbial — more so probably than it really deserves —for dampness, miasm and disease. To this large district, capable of transformation, and in fact now being rapidly transformed, into a region at once healthful and productive, drains are a necessity. They must often be several miles in extent, and laid out with reference to some general plan. It is easy to see that the execution of these works is beyond the power of isolated individual effort, and that the public authority must be invoked to prescribe the location and plan, and thus to overrule the conflicts of individual opinion and individual selfishness. It is certainly possible to ¿xecute these necessary works by means of assessments upon property in proportion to benefits received, and thus to secure results more equitable to individuals than could be obtained in any other way, or by any other system of taxation. Looking, therefore, to the m'gent necessity for the exercise of this power, however cogent may be the considerations which address themselves to the legislature to induce that body carefully to guard against its abuse, I can see no cause to regret, and no argument against, its existence.

¥e conclude, therefore, that the power of the general assembly to authorize local assessments, in proportion to benefits conferred, for the construction of free turnpike roads, and for the drainage of lands, remains unabridged by any provision of the present constitution.

It is proper, however, that, before concluding this branch of the case, I should say, as a matter of justice to my brethren, that the considerations which I have thus presented, are more clear, convincing and conclusive to my mind than they are to theirs; but all of them are of opinion that they are weighty enough to render the unconstitutionality of such assessments too doubtful to justify judicial interference with legislative discretion. If, therefore, the act of May 1, 1854, and the act amendatory thereto, presented no constitutional question other than that in relation to assessments, we should not feel ourselves at liberty to hold it to be unconstitutional. But,

2. It is claimed on the part of the plaintiff, that this act authorizes the taking of private property for private use, without the consent of the owner, and is, therefore, in contravention of the nineteenth section of the bill of rights, which is as follows :

“ Seo. 19. Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads which shall be open to the public without charge, a compensation shall be made to the owner in money; and in all other cases where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner.”

The first clause of this section, guaranteeing the inviolability of private property except as subservient to the public welfare, clearly prohibits the taking of private property for private use, without the owner’s consent. And so it has been held by learned commentators and courts of high authority. In the matter of Albany Street, 11 Wend. Rep. 149; Bloodgood v. M. & H. R. R. Co., 18 Wend. Rep. 9, 59; Varick v. Smith, 5 Paige’s Rep, 137; Sedg. on Const. Law 514, 515.

We can see, in the act in question, nothing objeetionable in the fact that the township trustees shall have power to act upon the application of a single party; nor in the fact that they may locate the proposed ditch upon lands held by two owners only. ( All public movements must originate in individual action; and two persons only may be proprietors of vast tracts of land; or, if the tracts be small, they may be so situate relatively, or they may be characterized by such peculiarities, as to render their drainage a very proper matter of public concern. But it is a much more serious subject of inquiry, whether this section does not, in effect, authorize the entry upon lands and the construction of drains, when demanded by private interest merely, without reference to the public interest, convenience, or welfaré: j- It seems to us clear that it does. If the trustees had been authorized to locate and provide for the opening of a ditch only in case they found the same to be demanded by, or conducive to, the public health, convenience, or welfare, then their action, under legislative authority, would be but an ordinary and legitimate exercise of the right of eminent domain. But this statute prescribes no such condition — no such rule of official duty or limit to official discretion; and a ditch may be located and opened upon the lands of individual proprietors solely for purposes of private interest, irrespective of the public welfare, without infringing any provision of this act, either express or implied.

Is this an infringement upon the inviolability of private property — a taking of private property for private use ?

The land occupied by the ditch and its banks is not, it is true, wholly appropriated. The owner may still use the ditch itself for purposes of irrigation, for watering stock, or may perhaps make it serve the purposes of a fence. He may grow timber and shrubbery on its banks. But his dominion over it — his power of choice as to the uses to which he will devote it, ax’e materially limited; in short, other parties acquire a permanent easement in it. An easement is property; and to the extent of such easement, it is clear to us, that private property is taken, within the meaning and spirit of the constitutional prohibition'.

The decisions in other states, on questions bearing on this point, seem not to have been uniform. Sedg. on Const. Law 519, et seq. But the doctrine here maintained is settled, in Ohio, by repeated adjudications, and on principles which, we think, cannot be shaken. Crawford v. Delaware, 7 Ohio St. Rep. 459.

. It is contended by counsel for plaintiff that this act is unconstitutional, for the reason, as is alleged, that it does not provide a compensation in money for the property taken; but in this.respect, we think the act is unobjectionable. But we are unanimously of the opinion that the act does authorize the appropriation of private property for private purposes, irrespective of the public welfare, without the consent of the owner, and is, therefore, in contravention of the 19th section of the bill of rights.

The judgment of the court of common pleas is reversed, and the cause remanded for further proceedings.

Swan, Scott and Sutliee, JJ., concurred.


source: Caselaw Access Project

author: Brinkerhoff, J.

license: Public Domain

text:
    The State of Ohio, ex rel. James W. Rider, v. Daniel Lynch, as Treasurer of Liberty Township, in Seneca County.
    Where a township board of education had resolved to sell the old site of a sub-district school house, and had purchased a new site, and, notifying the local directors of the sub-district of their action in the premises, instructed them to sell the former, and to build a new school house on the latter, and the local directors, disregarding such instructions, proceed to build a new school house on the old site and keep up a school therein: Held—
    1. That the local directors are guilty of such insubordination and neglect as justify the township board of education in exercising the powers and duties which would otherwise devolve on the local directors, and in building a school house on the new site and employing a teacher therein; and such teacher is entitled to be paid his wages out of the township treasury, on the order of the township board.

      2. The fact that, prior to the issue and service of an alternative writ of mandamus, to compel the township treasurer to pay the order aforesaid, the term of office of such treasurer had expired, and all the funds in his hands had, in good faith, heen paid over to his successor in office, is, as to him, a good answer in law to the alternative writ.
    This is an application for a peremptory mandamus to enforce the payment of wages to the relator for teaching school. The agreed statement of facts is substantially as follows:
    In the early part of the year 1857, the township board of education of Liberty township, in Seneca county, determined to build a new school house in sub-district No. 2 of the township, and selected and purchased a site therefor, and instructed the local directors of the sub-district to build the house on the site so selected, and also to sell the old school house and site.
    The local directors of the sub-district proceeded to build the new school house, but refused to erect it upon the site selected by the township board, but claimed the right to select the site therefor themselves, and desired to build the new house upon the site where the old school house of the sub-district stood; and did build it there, in the summer of 1857, having sold the old house, but not the old site.
    The local directors thus refusing to build the house on the lot selected by the township board, the latter proceeded, contemporaneously with the local directors, and built a new school house there, and paid for it out of the funds provided by said board for that purpose, but refused to pay for the house built by the local directors, having notified the contractor who built it, before he commenced to do so, that they would so refuse.
    In the autumn of 1857, the local directors employed a teacher to teach the common school of the sub-district, in the new house they had built, and made all other necessary provisions for the school in that house, but refused to have any school kept in the new house built by the township board.

      Thereupon, and because of such refusal, the township board employed James W. Rider, the relator, to teach a school for the sub-district, in the house they had erected on the new site, and made all other provisions for the school in that house.
    The two school houses are about three-fourths of a mile apart, in the same sub-district.
    The teacher employed by the local directors taught the school, during the winter of 1857-8, in the house they had built; and, in the spring of 1858, at the expiration of his term, made his report, got a certificate from the local directors of the amount due him for wages as teacher, and got an order for the amount from the township clerk, on the defendant Daniel Lynch, as treasurer of the township, and presented the order and received from him, as treasurer, the amount it called for.
    During this same winter of 1857-8, Rider, the relator, with full knowledge of the action of the local directors in keeping up a school as stated, in pursuance of his employment by the township board, taught a school in the house the latter built, and, in the spring of 1858, at the expiration of his term, made his report, and the township board certified to their clerk, that there was due to Rider, for teaching, the sum of eighty-eight dollars. Rider got the clerk’s order on the township treasurer for said sum, and presented the same to the defendant, as treasurer, for payment, which, at the order and request of the local directors, was refused, although there was sufficient funds in the hands of defendant, as treasurer, to pay it, and subject to be drawn for that purpose.
    Both teachers- presented their respective orders on the 6th of April, 1858, but Rider’s was presented at an earlier hour than the other teacher’s.
    It is agreed that one school was sufficient for the sub-district.
    In answer to the alternative writ of mandamus, issued on April 25th, 1858, the defendant alleges that on the 5th day of April, 1858, his successor iu office was duly elected, and, within ten days, qualified; and that on the 16th day of April, 1858, being before the alternative writ was issued, the defendant paid over to his said successor all the funds in his possession or control as township treasurer.

      John G. Lee, for the relator.

      James Pillars, for defendant.
   Brinkerhoff, J.

The claim of the relator to be paid his wages, as a teacher, out of the township treasury, depends on the question whether the township board of education had the rightful authority, paramount to any authority of the local directors, to determine the precise locality of the school within the sub-district, and to prescribe to the local directors the particular place within the sub-district in which the school should be kept. If the township board had such authority, then the local directors of the sub-district, in persisting in building a school house, and causing a district school to be kept upon the old site after they had been duly notified of the determination of the township board to sell the old site, and to have a school house built upon the new one which had been purchased for that purpose, were guilty of acts of insubordination and neglect, which gave the township board a perfect legal warrant, under the provisions of the thirteenth section of the act of March 14, 1853, “to provide for the reorganization, supervision and maintainance of common schools,” to exercise all the powers otherwise conferred on the local directors, and, of course, to. employ a teacher, and to draw an order on the township treasurer, in his favor, for the amount of his wages.

Section 1, of the act above referred to, provides:

“ That each and every organized township in the state shall compose hut one school district for all purposes connected with the general interests of education in the township, and shall he confided to the management and control of a board of education, and the several school districts and fractional parts thereof, which now are or may hereafter be established in the several organized townships of the state, shall be regarded as sub-districts, and be confided to the management and control of local directors, as hereinafter provided,” etc.

Section 6 provides:

“It shall be the duty of the school directors in each sub-district to take the management and control of its local interests and affairs, and to employ teachers, to certify the amount due them for services, to the township clerk, who shall draw an order on the township treasurer for the amount, and to dismiss any teacher, at any time, for such reasons as they may deem sufficient,” etc.

Section 7 provides:

“It shall be the duty of the directors, in their respective sub-districts, to negotiate and make, under such rules and regulations as the township board of education may prescribe, all necessary contracts in relation to providing fuel for schools, repairing, building or furnishing school houses, purchasing or leasing school house sites, renting school rooms, and making all other provisions necessary for the convenience and prosperity of schools within their sub-districts,” etc.

Section 11 provides :

“ The said township board of education in each township of the state, and their successors in office, shall be a body politic and corporate in law; and as such, may contract and' be contracted with, sue and be sued, plead and bo impleaded, in any court of law or equity in this state, and may receive any gift, grant, donation or devise, made for the use of any school or schools within their jurisdiction; and, moreover, they shall be and hereby are invested in their corporate capacity with the title, care and custody of all school houses, school house sites, school libraries, apparatus or other property belonging to the school districts as now organized, or which may hereafter be organized within the limits of their jurisdiction, with full power to control the same in such manner as they may think will best subserve the interests of common schools and the cause of education; and when, in the opinion of the board, any school house or school house site has become unnecessary, they may sell and convey the same in the name of the township board of education of the proper township ; * * * * * and all conveyances of real estate which may be made to said board, shall be to said board in their corporate name and to their successors in office.”

Section 13 provides:

“ That, * * * * * it shall be the duty of said board of education to exercise all the powers conferred on local directors in respect to sub-district schools, whenever such local directors shall neglect to discharge their duties in any sub-district as required by this act,” etc.

Section 14 provides:

“ The said board shall prepare, or cause to be prepared, a map of their township, as often as they deem necessary, on which shall be designated the sub-districts of the township, which they may change or alter at any regular session, and the number of scholars assigned to each; but no sub-district shall contain within its limits less than sixty resident scholars, by enumeration, except in cases where, in the opinion of the board, it is necessary to reduce the number; and it shall be the duty of the board to establish a school in each sub-district of the township, of such grade as the public good in their opinion may require; and in the location of primary schools, or schools of higher grade, the board shall have reference to population and neighborhood, paying due regard to any school house already built, or site procured, as well as to all other circumstances proper to be considered, so as to promote the best interests of schools.”

These are the only clauses of the statute to which our attention has been called in argument, and it is believed they are the only ones which have a bearing upon the point in question. And it must be admitted that they are not very specific nor entirely satisfactory in their provisions. Net when we take into consideration the fact that this act abolished and superseded a system of independent local school districts within the township, and look at its genera,! scope and policy, it is evident that the legislature intended to render the powers and duties of the local directors subordinate, in no inconsiderable degree, to the authority and discretion of the township board.

By the eleventh section, “ the title, care and custody of all school houses and school house sites, with full power to control the same,” are vested in the township board; and by the fourteenth section, it is made the duty of the township board to “ establish a school in each sub-district,” and, “in the location of primary” and other “schools,” they are to have reference to population, neighborhood, to school houses already'built, “ as well as all other circumstances proper to be considered.” Now, in order to the exercise of the power herein granted; to exercise the care, custody and control of school houses and school house sites; in order to establish a school in each sub-district, and to do anything “ in the location ” of the same, and in order to prevent a conflict of authority which would be productive of anarchy and its consequent mischiefs, it seems to us necessary that the township board should have the power to designate the particular place where school houses shall be built, and where schools shall be kept, and that this power, if not expressly conferred, follows by fair and reasonable implication from the grants of power expressly made.

By section 11, power is expressly conferred on the township board “ to sell and convey any school house or school house siteand we think that when the local directors persisted in building a school house, and keeping up a school on the old site, and in refusing to build upon the new site, after the township board had notified them of its resolution to sell the former, and after it had required and directed them to build upon the latter, they were guilty of a degree, not only of neglect, but of insubordination, which justified the board in assuming all the powers and duties which would otherwise have devolved upon the local directors.

We are of opinion, therefore, that the relator, on the agreed statement of facts, is entitled to be paid his wages out of the township treasury, on the order of the township board; that when such order was presented to the defendant, he ought to have paid it; and that, provided the facts remain substantially as agreed on in the present case, it ought now to he paid, on presentation, by his successor.

But, it appears that, before the issuing and service of the alternative writ in this case, the defendant’s term of office as township treasurer expired, and, a successor having been elected and qualified, he paid over to that successor all the public funds in his hands. This seems to have been done in good faith. He is proceeded against in his official capacity, to reach funds in his hands belonging to the public; and we are clear that, under these circumstances, the fact that he has paid over all such funds to his lawful successor, is a good defense to this writ, and that the relator must be left to assert his rights against the defendant’s successor in office.

Motion for peremptory mandamus overruled.

Swan, Scott and Sutlle'I', JJ., concurred.

23


author: J. R. Swan, J.

text:
    John S. Shepard v. The Commissioners of Darke County.
    Where a claim against a county is created hy statute, and to be paid by the county upon the allowance of the county commissioners, if the claim is in. part allowed by the county commissioners, the remedy of the claimant, if not satisfied with the determination by the commissioners, is to appeal to the court of common pleas,; and in such case he cannot sue at common law.
    Demurrer to special plea in bar.
    The plaintiff brought assumpsit in the court of common pleas of Darke county. The case was appealed to the district court of the county, and thence reserved to this court.
    The declaration contains two counts:
    1st. “ Eor that, whereas, heretofore, to wit, on the 2d day of January, A. D. 1850, at the county aforesaid, the plaintiff then being recorder of Darke county, declined to be at the expense and trouble of providing suitable books, and making a new and complete general index to all the records in the recorder’s office in said county of Darke, for such compensation as the commissioners of said county might deem reasonable and just, after the same might be completed, according to the statute in such case made and provided. And the commissioners of said county then in office, desiring to have said index made for the use of said county, then and there undertook and promised the plaintiff that if he would provide books and make said index, that the commissioners of said county, on the completion thereof, would pay to him for said materials, and work and labor so much as the same were reasonably worth; to which proposition of the commissioners then in office, the plaintiff assented, and then and there provided suitable books, and subsequently,- and before the commencement of .this suit, made and completed a new and complete general index to the records in the recorder’s office, according to the provisions of said contract, which was accepted and received for the nse of said county. And the plaintiff" avers that the hooks so provided, and the work and labor so done and performed by the plaintiff in making said index, were worth four hundred and ten dollars, which amount, heretofore, to wit, on the second day of December, A. D. 1850, he presented to the commissioners of said county, then in office, for payment, and was by them, then and there, disallowed, and payment refused, except the amount of two hundred and ten dollars, which the said commissioners then and there allowed, and ordered an order to be drawn on the treasurer therefor. 'Whence' a right of action hath accrued to the plaintiff to recover what said books, work and labor are reasonably worth, to wit, the said sum of four hundred and ten dollars.
    2d. “ For that, whereas, heretofore, to wit, on the 2d day of December, in the year of our Lord one thousand eight hundred and fifty, at the county of Darke, in the State of Ohio, the said plaintiff, by authority and requirement of certain laws of the State of Ohio, had provided suitable books, and continued and completed the general indexes to the records in the recorder’s office of said county of Darke; and the said defendants, then and there, by authority of said laws, undertook and promised the plaintiff to allow him for his hooks and services in that behalf, such compensation as should be reasonable and just. And the plaintiff avers that his books and services in that behalf were reasonably worth four hundred and ten dollars. And the plaintiff afterwards, to wit, on the day and year aforesaid, made out his account and presented it to the said commissioners for that sum, which the said commissioners, then and there, refused, and still refuse to allow.”
    To these two counts the defendants pleaded specially: “ That the said books, work and labor therein specially mentioned, was done and performed by the said plaintiff in his official capacity as county recorder of the said county, and by virtue of the laws of this state, ánd not by any agreement with defendants; that at a regular meeting of defendants, on Monday, December 3, A. D. 1850, at the county aforesaid, the said plaintiff presented to said board of county commissioners, then present at their office, his account for the said books, work and labor aforesaid about making said general index, and the said board having then and there examined the said account and the books, work and labor performed by plaintiff, as county recorder, and in view of the premises, and believing that two hundred and ten dollars were a full, just and reasonable allowance for the said books, work and labor, did then and there allow to the said plaintiff therefor the said sum of two hundred and ten dollars, and directed the auditor of said county to issue an order in favor of plaintiff for that sum on the treasury of said county; of which action by said board the said plaintiff then and there had notice. And the said defendants aver that said allowance was just and reasonable, and a full compensation for said work and labor; that their said order as county commissioners was regularly entered upon the journal of their proceedings as such; that the same is still in full force, that it has not been appealed from or reversed by this court or any other court; and that the said plaintiff, on demand, is at any time entitled to receive of and from the auditor of said county an order on the treasury thereof, for the said sum of two hundred and ten dollars. And this defendants are ready to verify,” etc.
    To this special plea the plaintiff* demurred.

      William Allen and Abner Haines, for plaintiff.

      John Reeves and W. M. Wilson, for defendants.
   J. R. Swan, J.

The special plea in bar denies that there was any such agreement as is set forth in tlie first and second counts of the declaration, and then proceeds to set np another and different statutory agreement, and pleads matter in bar to this last agreement. The plea is in this respect defective; and if it be good for any purpose, it amounts to the general issue.. The demurrer is well taken. But the plea is good enough for the counts to which it is pleaded.

The counts present this question: Whether, when the statute creates a claim against the county which, but for the statute, would not exist, and directs such claim to be passed upon and allowed by the county commissioners, and the commissioners pass upon it, the remedy of the party who feels himself aggrieved by the action of the commissioners, is by suit at common law against the county, or by appeal from the decision of the commissioners.

Ever since 1824 (22 v. Stat. 266,) the right of appeal from the decision of the board of commissioners has been allowed. The law of 1824 was incorporated into the law of 1831, and into the law of 1853, now in force. Swan’s Rev. Stat. 183, sec. 18.

In the case of Comm’rs Clermont Co. v. Robb et al., 5 Ohio Rep. 490, it was held that an appeal lies to the court of common pleas from the decision of the commissioners, on a contract to erect a bridge, where the latter refused to allow the claim of the contractors.

Whenever the board of commissioners are authorized to allow or reject claims against the county, the party aggrieved may appeal.

The statute relating to the work done by the plaintiff, provides that the commissioners shall determine the compensation: “The recorders shall be allowed, and receive for their services, such compensation as the commissioners of the respective counties shall deem reasonable and just.” Swan’s Rev. Stat. 792. The plaintiff', in this case, it seems, was not willing to leave the amount of the compensation to be determined by the judgment of the county commissioners. He alleges a special contract, that the compensation should, aside from the opinion of the commissioners, be reasonable and just. We doubt whether the county commissioners had any authority whatever to stipulate or make a contract different from that prescribed by the statute. But if they had power to change the rule of compensation, neither the law nor the agreement changed the tribunal which was eventually to allow the amount to be paid.

What we hold in the present case is this:

Where a claim against a county is of such a nature that, but for the statute, no right of action at common law would exist on the claim against the county, the remedy prescribed by the statute must be pursued, and no cumulative remedy exists. Whether, in any case, where the claim is to be passed upon by the county commissioners, the claimant can pursue any other remedy than by appeal, it is not necessary to decide in this case.

Brinkerhoff, Scott and Sutliff, JJ., concurred.