author: Owen, J. Okey, J., Okbv, J.,

text:
    The State v. Pugh.

      Act of February 27, 1 885 — Local and special act — Article 2, section 27, and article 13, section 1 ,of constitution — Conferring of corporate power — Part void, when balance of act falls.

    1. The act to reorganize and consolidate cities of the first grade of the second class (Columbus), and to reduce the tax-levy of said cities, passed February 27,1885 (82 Ohio h. 54), so far as it authorizes the trustees of the sinking fund to redistrict the city of Columbus into wards, and authorizes the appointment of a board of control by the council of such city, is a local and special act.
    2. Such act is not in violation of section 27, article 2, of the constitution of Ohio, which ordains that, “no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators,” by reason of the authority conferred by the act upon the trustees of the sinking fund to redistrict the city of Columbus; nor is the granting of such authority to the trustees in violation of section 1 of article 18 of the constitution, which ordains that, “the general assembly shall pass no special act confei’ring corporate powers.”
    3. So much of such act as grants authority to such city to appoint, through its council, a board of control, is in violation of section 1 of article 13 above quoted, in that it is the conferring of corporate powers upon such city by a special act.
    4. As the act is not one simply to redislrict the city of Columbus into wards-but, as its title implies, is an act “ to reorganize and consolidate ” such city, and as it is highly improbable that the general assembly would have enacted the provisions for the redistricting of the city without the further provisions for the appointment of a board of control; and as the latter provision is unconstitutional and void, the act, so far as it provides for redistrieting the city and appointing a board of control for its government, is void.
    QUO WARRANTO.
    By direction of the governor of the state, the attorney-general, on behalf of the state, filed his petition in this court, by which he gave it information that the defendants, John M. Pugh, Joseph EL Outhwaite, and Isaac Eberly, together with Benjamin F. Martin and Luther Donaldson, are the trustees of the sinking fund of the city of Columbus, which is a city of the first grade of the second class, and is and was on February 27,1885, the only city in the state of the same grade and class, and the only city that can come into that grade and class before next July; that such trustees were heretofore appointed under an act passed April 16,1883 (80 OhioL. 139), and are the only persons ever appointed aud qualified as trustees of the sinking fund of the city of Columbus under such act.
    The petition further alleges that the defendants, Pugh, Outhwaite, and Eberly, who comprise a majority of such trustees, have usurped and exercised, and were proceeding to exercise the powers which are specified as conferred upon them by an act of the general assembly, entitled “an act to reorganize and consolidate cities of the first grade of the second class (Columbus), and to reduce the tax levy of such cities.” These powers, are specified at leugth in the petition, which sets out the act in full.
    The petition avers that the act above entitled is unconstitutional and void, and hence that the defendants are proceeding without warrant or lawful authority, and the prayer of the petition is that they be ousted and excluded from the exercise of any of the powers which the act in question purports to confer upon them. The two trustees, Martin and Donaldson, refuse to co-operate with the defendants in the attempt to execute the provisions of the act, and for that reason are not impleaded as defendants. The act is as'follows :
    “An Act to reorganize and consolidate cities of the first grade of the second class (Columbus), and to reduce the tax levy of said cities.
    “ Section 1. Be it enacted by the general assembly of the state of Ohio, That in cities of the first grade of the second class, it shall be the duty of the trustees of the sinking fund, heretofore appointed under an act passed April 16, 1888, entitled au act to amend sections 2715, 2716, 2721, 2722, 2724, and 2729 of the Revised Statutes of Ohio ’ (80 Ohio L. 139, 140, 141), to proceed within five days after the passage of this act, with the aid of such engineers and assistants as they may deem necessary, to redistrict such cities into as many wards as, in their opinion, may be deemed advisable, which shall be bounded by streets, alleys, avenues,’ public grounds, canals, watercourses, or corporation lines, and be composed of adjacent and compact territory; and such wards shall contain as nearly an equal number of inhabitants as may, in the opinion of such trustees, or a majority of them, be deemed practicable; which wards shall be numbered consecutively, commencing with the number one.
    “ Sec. 2. Such trustees, or a majority of them, shall cause a plat of the proposed division or redistricting to be made, showing the wards so proposed, and shall give notice that the same is open for inspection at aplace to bo named, by publication in at least one daily newspaper, published and of general circulation in the corporation. The trustees shall meet, at such times and places as may be stated in the published notice, to hear and consider any objections, complaints, or petitions that maybe presented or urged against such proposed division and redistricting; and after hearing the same, the. trustees, or a majority of them, may make such alterations therein as they may deem proper. The trustees shall cause copies of the plat to be made of the wards as finally adopted, with a description of the boundaries of the same, and shall deposit one copy, certified by such trustees, or a majority of them, with the mayor, and another with the city clerk, who shall immediately record the same in the record book of general ordinances.
    “ Sec. 3. The adoption of such division and redistricting by such trustees, or a majority of them, shall be deemed complete and final, and shall operate as a repeal of any or’dinance of the council of such cities establishing the boundaries of wards therein; and such division and redistricting shall have the same force and effect as if made by ordinance of council; and the wards so established shall not again be changed before the third regular meeting of the council after the annual municipal election next after such redistricting.

      “ Sec. 4. Such trustees shall designate one place of holding elections in each of said wards, which shall not be changed before the third regular meeting of council held after the first annual municipal election next after the passage of this act; and the wards so established shall not be subdivided into election precincts before such third regular meeting. Such trustees, or a majority of them, shall certify to the city clerk such designation of voting places, who shall immediately record the same in the record book of general ordinances; and such designation of voting places shall be deemed complete and final, until duly changed by the council of such cities, and shall operate as a repeal of any resolution or ordinance of the council of such cities establishing the precincts of wards, designating the voting places, or selecting or appointing judges of election therein. At the first municipal election held in such cities after the passage of this act, the judges of election, not more than two of whom shall belong to the same political organization, and the clerks of election, who shall be of opposite politics, shall be chosen by the electors of the wards present at the organization of the polls. And the mayor, in issuing his proclamation of the time and places of holding elections in such cities, shall be governed and controlled by such division and redistricting into wards, and by such designation as to places of holding elections, as fully as, though the same had been made and designated by ordinance of council.
    “ Sec. 5. The expenses of such trustees, including the compensation of engineers and assistants employed, shall be paid out of the general revenue fund of such cities upon presentation of an order signed by such trustees, or a majority of them, to the city clerk, who shall issue his waiv rant for the amount'upon the treasurer, who shall pay the same, but the trustees shall serve without compensation.
    “Sec. 6. At the first municipal election held in cities of the first grade of the second class next after such division and redistricting, one member of the city council shall be elected in each of the wards so constituted, by the electors thereof, those in the even numbered wards to serve for one year, and those in the odd numbered wards to serve for two years, and thereafter the successors of those whose terms expire shall be elected to serve for two years. Members of council in such cities in office at the time of such division and redistricting shall hold their offices until the members so elected shall be qualified, whereupon their offices as such councilmen [shall] cease and determine.

      “ Sec. 7. At the first municipal election in such city next after such division and redistricting, one member of the board of education of such cities shall be elected in each of the wards so constituted, by the electors thereof, those in the even numbered wards to serve for one year, and those in the odd numbered wards to serve for two years, and thereafter the successors of those whose terms expire shall be elected to serve for two years. Members of the board of education in such [cities] in office at the time of such division and redistricting shall hold their offices until the members so elected shall be qualified, whereupon their offices as' members of such board of education shall cease and determine.
    “ Sec. 8. The aggregate of all taxes, which the council, in cities of the first grade of the second class, may levy or order to be.levied, above the tax for county and state purposes, including the levy for general purposes, shall not exceed in any one year, eight mills; but said council shall levy, in addition thereto, such further rate, not exceeding five-eighths of one mill, as may be necessary to create a sinking fund for the payment of the principal and interest of the bonds of such cities issued for the purpose of building and maintaining trunk sewers therein. And such council may apportion such levy between the several municipal departments in such proportion to their needs as the council may deem necessary, subject, however, to the provisions and limitations, so far as the same may be applicable, of the act of April 16, 1883, entitled, ‘ an act supplementary to chapter one, division nine, of title twelve, of the Revised Statutes of Ohio, and to amend sections 2689, 3958, and -3959, of the Revised Statutes. The board of education of such cities of the first grade of the second class, shall not exceed in its estimate and levy of the amount of money necessary to be levied as a contingent fund for the continuance of the school or schools therein after the state funds are exhausted, to purchase, care, repair, and furnish school houses and build additions thereto, and for other school purposes five mills.

      “ Sec. 9.- In cities of the first grade of the second class there shall be a board of control, composed of three members, not more than two of whom shall belong to the samo political party, electors of such cities, to be chosen in the first instance, by the council of such cities elected at the first annual municipal election held therein after the passage of this act, and within twenty days after the organization thereof, one of which members shall serve for one year, one for two years, and one for three years from the date of such appointment or selection, and thereafter a successor of the member of such board whose term expires shall bo chosen by the council to serve for the term of three years, and the members of such board shall serve until their successors are chosen and qualified. Vacancies in such board sháll bo filled by the council for the unexpired term.
    “ Sec. 10. Each member of such board of control shall give bond, with at least three sureties to the satisfaction of the council, in the sum of twenty-five thousand dollars, conditioned for the faithful performance of his duties, which sureties shall each be required to take an oath that he is worth the amount of the bond above all liabilities.
    “Sec. 11. The members of the board shall devote their entire time and attention to the duties of the office, and shall each receive, as compensation, a salary of twenty-five hundred dollars per annum.
    “ Sec. 12. The board shall hold daily meetings, and a majority shall constitute a quorum for the transaction of business; the ayes and nays shall be called and entered upon a journal, upon the passage of every resolution or order of any kind, and no resolution or order shall be adopted unless two votes are recorded in its favor.
    “ Sec. 13. The board shall keep a complete record of all its proceedings, and a copy from its records, certified by its clerk, shall be competent evidence in all courts; but a separate journal and record shall be kept for each of the departments under the control of the board.
    “ Sec. 14. The board of control may appoint and employ such superintendents, heads, and chiefs of departments, engineers, clerks, laborers, and other persons, as may be necessary for the execution of its duties, and fix their salaries and compensation; but the salaries of such superintendents, heads, chiefs of departments, clerks, and engineers, as are appointed for a definite time, shall be fixed within limits to bo prescribed by council, and shall not be changed during the term for which they arc appointed; and any such appointees or employes, or any person holding an office or employment under any board of which said board of control may be the successor, may be removed by the board of control at any time. The appointment of heads, chiefs, or superintendents of departments shall be confirmed by council.
    “ Sec. 15. The board of control shall have all the powers, perform all the duties, and have and exercise all the priv: ileges which, in other cities, are vested in and devolve upon the trustees of the water-works, the board of improvements, the park commissioners, the board of police commissioners in cities of the second grade of the second class, and the board of fire commissioners in cities of the second grade of the first class, as provided in the Revised Statutes and the amendments thereto relating to those matters, and shall bo governed by the rules proscribed by law for the government of those boards, when not inconsistent with the provisions of this act. And said board shall have all the powers, perform all the duties, and be subject to the same restrictions which arc vested in, or devolve, or are imposed upon boards of public works in cities of the first grade of the first class, as provided in the Revised Statutes by sections two thousand two hundred and thirteen (2213) to two thousand two hundred and thirty (2230), inclusive, and the amendments thereto. Members of the board of trustees of water-works, 'of the board of police commissioners, and of the board of park commissioners, in such cities of the first grade of the second class, in office when this act takes effect, shall hold their offices until ten days after the members of said board of control shall be chosen, or appointed and qualified, whereupon their offices as members of such board shall cease and determine. In cities of the first grade of the second class, no election for members of the board of trustees of water-works shall be held, nor members of such board elected, after the passage of this act, such board with respect to such cities being hereby abolished.
    “Sec. 16. That section nineteen hundred and ninety-eight (1998) of the revised statutes be so amended as to read as follows :
    “ Sec. 1998. In cities of the second grade of the second class, all powers and duties with respect to the appointment, regulation, government and control of the police shall, as now, be vested in and exercised by a board, consisting of the mayor, who shall be president, and four commissioners, who shall be electors and freeholders of the city, and a majority shall constitute a quorum.
    “ Sec. 17. That section two thousand four hundred and seventy-seven (2477) of the Revised Statutes be so amended as to read as follows :
    “ Sec. 2477. The provisions of this subdivision shall not apply to cities of the first and second grades of the first class, and cities of the first grade of the second class, except as to matters concerning which no provision i's made in the first and second subdivisions of this chapter.
    “ Sec. 18. The officers of cities of the first grade of the second class, except as provided in this act, shall consist of a mayor, who shall be chosen by the electors of the corporation, a police jfidge, a prosecuting attorney of the police court, who shall also act as assistant prosecuting attorney of the county in which such cities are located, a clerk of the police court, a solicitor and a city clerk, all of whom shall be chosen in the first instance by the council of such cities, elected at the first annual municipal election held therein after the passage of this act, and within twenty days after the organization thereof, and thereafter a successor of the officer whose term expires shall be chosen by the council; the officers so chosen by council shall serve for the term of two years ; and vacancies in any such offices shall be filled for the unexpired term. All offices in cities of the first grade of the second class, heretofore created by ordinance of council, shall cease and determine at the expii’ation of ten days after the selection and qualification of said board of control.
    “ Sec. 19. That section seventeen hundred and eighty-five (1785) of the revised statutes [be] so amended as to read as follows:
    “ Sec. 1785. In cities of the first class and in cities of the first grade of the second class, there shall be a court, held by the police judge, which court shall be styled the police court and be a court of record.
    “ Sec. 20. That section two thousand one hundred and forty-one (2141) [of the Revised Statutes], as amended April 8, 1881, be so amended as to read as follows:
    “ Sec. 2141. In cities of the third grade of the first class, and in cities of the first grade of the second class, there shall be no board of health, but the board of police commissioners in cities of the third grade of the first class, and the board of control in cities of the first grade of the second class, shall exercise all the powers and perform all the duties of the boards of'health and mayors in this chapter.
    “ Sec. 21. The council in cities of the first grade of the second class, shall, on the first Monday of September, in each year, select and appoint two judges of election of opposite politics, for each voting place in such cities, and the electors of the voting district shall select a third man to serve as judge of such election at the organization; the persons so appointed shall be electors and residents at'least sixty days in the ward for which they are appointed ; the mayor shall forthwith cause notice to be given to each person so appointed, and shall cause a record to be made and kept in his office of such appointments, and the persons so appointed shall act as judges of election in their proper voting districts during the period of one year ; they shall take the same oath of office, be subject to the same requirements, penalties, liabilities, and disqualifications, atid entitled to the same compensation as other judges of election; they shall designate and appoint two' clerks of election of opposite politics, who shall take an oath of office, and shall perform all the duties and be subject to all the liabilities as other clerks of eletion; and if any such judges or clerks fail to attend, at the proper time and place, such judges and clerks, and all additional judges and clerks, shall be chosen by the electors of the ward.
    “ Sec. 22. That sections seventeen hundred and eighty-five (1785) nineteen hundred and ninety-eight (1998), two thousand four hundred and seventy-seven (2477), and two thousand one hundred and forty-one (2141), of the Revised Statutes, be and the same are hereby repealed; that all acts and parts of acts, inconsistent or in conflict with the provisions of this act, be and the same are hereby repealed, in so far as they may apply to cities of the first grade of the second class; and the provisions of section 2933, Revised Statutes, as amended March 6,1883, shall not apply to cities of the first grade of the second class ; and that all ordinances of such cities of the first grade of the second class, heretofore adopted, which may be in conflict or inconsistent with the provisions of this act, be and the same are hereby set aside, repealed and held for naught; provided that nothing in this act shall be so construed as to affect, in any manner, the tenure of any lands that may have been donated to such cities for park or other public purposes ; and provided, further, that nothing in this act contained shall be so construed as to affect or interfere in any manner with the term of any incumbent in office, except in cities of the first grade of the second class.
    “ Sec. 23. This act shall take effect and be in force from and after its passage.”
    The defendants tendered an issue of law by a demurrer to the petition, and maintain that the act under which they were proceeding is a valid and constitutional enactment.

      C. T. Clarice, city solicitor. J. II. Collins, L. J. Critchfield, and S. JEIambleion, for relator.

      Converse, Booth Keating, and D. C. Jones, for defendants.
   Owen, J.

I. It is maintained in behalf of the relator that the enactment in question is in conflict with section 27, article 2, of the constitution of Ohio, which ordains that: “ no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators.”

The reasoning is that by this act the defendants, Pugh, Outhwaito and Eberly, and Martin and Donaldson 'are appointed by the general assembly to redistrict the city of Columbus iuto wards ; that by the designation of the provision that “ it shall be the duty of the trustees of the sinking fuud heretofore appointed, under an act passed April 16, 1883, ... to proceed within five days after the passage of this act . . . to redistrict,” etc., the individuals who comprise the board are clothed with the duties defined by the act, and not the board itself; that the designation of “ the trustees heretofore appointed ” exclude any hereafter appointed, and that no successors of any present trustee can be lawfully appointed or qualified to act; that as they are the only persons ever appointed under that act, and as Columbus is the only city of the first grade of the second class in this state, and as the language “ heretofore appointed” can not be rejected, but must be given its ordinary and natural import, it is as if these trustees had been designated by name.

This view is not without plausibility to support it; yet with great respect for counsel it is submitted that the construction contended for is narrow and constrained. The act under which these trustees were appointed (80 Ohio L. 139) provides that: “In cities ... of the first grade of the second class, there shall be a board, designated as the trustees of the sinking-fund . to be appointed . . by the court of common pleas of the county in which said city is situated.” The act under consideration employs the statutory designation of this board, and giving to the language “ heretofore appointed” that liberal and reasonable construction to which it is entitled, we have no difficulty in construing this provision to have reference to that board of trustees of the sinking fund in office in the city of Columbus at the time of the taking effect of the act, and not to its members as individuals.

If we are right in this view, it follows that instead of appointing these trustee, the general assembly has simply clothed them with additional powers and duties. That this is not the exercise of the appointing power by the general assembly is how too firmly established to be called in question. State v. The Judges, 21 Ohio St. 1; Walker v. Cincinnati, 21 Ohio St. 14; State v. Covington, 29 Ohio St. 116.

II. It is further maintained that the act in question conferred on these trustees corporate powers in violation of section 1 of article 13 of the constitution, which ordains that, “ the general assembly shall pass no special act conferring corporate powers.”

Without considering in this connection whether this is a special act, let us inquire if it confers corporate powers upon the trustees of the sinking fund.

Their duties are to redistrict the city of Columbus into wards, designate one voting place in each ward, and perform other duties pertaining to a division of the city into wards.

What constitutes “corporate powers” depends largely upon whom the powers in question are conferred. The conferring of certain powers upon an existing corporation may bring them within the designation of “ corporate powers,” while conferring the same duties or functions upon individuals, or unincorporated bodies, fails to impart to them the attributes of corporate powers.

Neither the act in question nor that under which these trustees were appointed constituted them a corporate body.

Nor are they in any substantial sense municipal officers of the city of Columbus.

No reason has been shown by counsel in the argument in this case why the general assembly may not by an act divide a city into wards ; indeed, eminent counsel for the relator conceded in argument that he found nothing in the constitution that stood in the way of such a proceeding; but contended that such a redistrieting must be by a local and special act. Unquestionably. It would seem to be legally and physically impossible for the general assembly to redistrict a city, by defined boundaries, into wards, and still preserve to the act the qualities of a general law.

If the general assembly may, by a special act, divide a city into wards, it is not easy to see why it may not (avoiding the exercise of appointing power), invest some intermediate agency Avith poAver to accomplish the same end.

"While the division of a city into wards may be preliminary, and in fact essential to its proper equipment for the exercise of the usual functions of municipal government, it is not necessarily the exercise of any of such functions. How this question would be affected by conferring upon the existing officers of a municipal corporation, by a special act, poAver. to redistrict it into wards, is not a question now before us.

We conclude that, conceding this to be a local and special act, it does not, by authorizing the trustees of the sinking fund to redistrict the city, confer upon them corporate poAvers, and is not within the inhibition of section 1, article 13, of the constitution.

Local and special legislation is not forbidden by the constitution. It plainly requires that all laws of a general nature shall have a uniform operation throughout the state, hut it does not require that all acts of the general assembly shall be of a general nature.

The view we have here expressed is supported by State v. Covington, 29 Ohio St. 102 ; State v. Powers, 38 Ohio St. 54; and State v. Baughman, 38 Ohio St. 455.

III. It is further urged in support of the proceeding'of the relator that if this court shall be of opinion that this act does not confer corporate powers upon the trustees of the sinking fund, it does clearly confer such powers upon the city of Columbus, and being a special act, it contravenes the .provision already quoted that, “the general assembly shall pass no special act conferring corporate powers.”

(1). Is this a special aet relating exclusively to Columbus? It is now too late to question the validity of the plan of classification incorporated in our statutes, and which has received the repeated sanction of this court. State v. Brewster, 39 Ohio St. 653; McGill v. State, 34 Ohio St. 228; State v. Bowers, 38 Ohio St. 54; Bronson v. Oberlin, 41 Ohio St. 476. It is not to be urged against legislation, general in form, concerning cities of a designated class and grade, that but one city in the state is within the particular classification at the time of its enactment.

Nor is it fatal to the act in question that the belief or intent of the individual members of the general assembly who voted for the act was .that it should apply only to a particular city. Neither would it subject the act to the imputation that it was local and special, that, in the opinion of the general assembly, gross abuses had intruded themselves into the administration of the municipal affairs of a particular city, which seemed to call upon the general assembly to repair the wrong, for, as eminent counsel for defendants well say: “Some individual exigency, abuse, or malfeasan ce has formed the originating cause of almost, if not all, the acts of the general assembly — those of a general as well as those of a special nature.” Although it is alleged in the petition and admitted by the demurrer that no other city than Columbus is within, or can, before July next, come within the class and grade contemplated by the act, yet, if any other city may, in the future, by virtue of its increase in population and the action of its municipal authorities, ripen into a city of the same class and grade, and come within the operation of the act, it is still a law of a general nature and is not invalid, even if it confer corporate powers.

On the other hand, if it is clear that no other city of the state can in the future come within its operation without doing violence to the manifest object and purpose of its enactment, and to the clear legislative intent, it is a local and special act, however strongly the form it is made to assume may suggest its general character.

It is not the form a statute is made to assume, but its operation and effect, which is to determine its constitutionality. State v. The Judges, 21 Ohio St. 11; State v. Hipp, 38 Ohio St. 199.

A thorough and thoughtful examination of the various provisions of the act in question will, it is believed, reveal, with clearness and certainty, its true character. Beginning with its title: “An act to reorganize and consolidate cities of the first grade of the second class (Columbus), and to reduce the tax levy of said cities.” Although the word “ Columbus ” was inserted in this title with deliberation, by the hand of the general assembly, it would be unfair and illiberal to magnify the importance of, or give controlling effect to, so slight a circumstance. Yet we are not at liberty wholly to ignore it. It is one of the indices pointing — ■ feebly it may be — to the legislative intent. “ The title is framed in the same manner as the bill, and is sanctioned by the vote of both branches of the legislature; we may, therefore, consider it as explanatory of the object of the law.’’ Burnet, J., in Burgett v. Burgett, 1 Ohio, 480; U. S. v. Fisher, 2 Cranch, 386; U. S. v. Palmer, 3 Wheat. 610; Commonwealth v. Slifer, 53 Pa. St. 71.

Section 1 provides : “ That in cities of the first grade of the second class, it shall be the duty of the trustees of the sinking fund, heretofore appointed under an act passed April 16, 1883, . . . to proceed within five days after the passage of this act . . . to redistrict such cities.”

It is admitted that no other city of the state of the designated class and grade had such a board of trustees, or could before July next. What has already been said in this opinion concerning “ the trustees of the sinking fund heretofore appointed,” may aid us here. While we ought not unduly to magnify the importance of this language, yet it seems too plain for argument that it was within the legislative intent that this act should apply to a city of the first grade of the second class, having, at the passage of the act, “ trustees of the sinking fund.” It was known that Columbus was that city. Suppose the provision had been, “ that in cities of the first grade of the second class, having trustees of the sinking fund heretofore appointed, it shall be the duty of such trustees to proceed within five days after the passage of this act to redistrict such cities.” .Would it be questioned by anybody that this designation would have applied exclusively to the city of Columbus as certainly as if the city had been named, oras if the designation had been “cities of the first grade of the second class having a state house therein ?” This would effectually have annulled the classification ; withdrawn every attribute of a general law, and rendered the act local and special. This is the plain legal effect of the language actually employed. Then, while no other city can, before July next, come within its grade and class, the emphatic command of the act is that it shall be enforced promptly — within five days of its passage the work shall begin. It is not necessary to contend that the act must perish if not at once enforced. If there should be slight delay and neglect ou the part of the trustees in beginning their work within the five ■days, there seems little doubt that mandamus would lie to enforce obedience to its requirements, if the act were valid. But the fact still remains that the legislative intent was ■that it should be presently and promptly enforced.

It provides (section 4) that “ at the first municipal election held . . . after thepassage of this act, the judges of the . . . election shall be chosen by the electors of the wards present at the organization of the polls.”

It provides (section 6) that at the first municipal election held . . . next after such subdivision and redistricting (which is to be done promptly), one member of the, city council shall be elected in each ward.

It provides (section 7) that “ at the first municipal election in such city, next after such division and redistricting, one member of the board of education of such cities shall be elected in each of the wards.”

It provides (section 9) that a board of control of three members shall be chosen by the council elected at the first anual election held after the passage of this act, and within twenty days after the organization thereof.

It provides (section 18) that the officers of such cities, except the mayor, shall be chosen by the council elected at the first municipal election held therein after the passage of the act. These provisions contemplate the election to be held in April, 1885, and that when the trustees have completed their work of redistrieting, their powers are exhausted. No future action by them is contemplated. If we are right in this, it seems just as clear that the act does not contemplate the future appointment and action of similar trustees in any other city. While the plan for redistricting is temporary, the powers conferred on the city are to be permanent.

It will be observed that it is logically and physically impossible that any of the foregoing provisions can ever, in the history of the state, apply to any other city than Columbus.

It is just as clear that it was not within the legislative intent that they should apply to any other city. No other city can, in all time, come within the operation of the act without the aid of a construction of its language so violent as to amount to an officious assumption of legislative power by the court construing it.

It seems too clear for serious contention, then, that this is a local and special act applying exclusively to Columbus.

(2). This brings us to the question : Does the act confer corporate powers upon, that city? If it does, then so far as it does, it must fall, as in that case it clearly violates the inhibition that “ the general assembly shall pass no special act conferring corporate powers.”

We are not without the light of previous adjudications of this court to aid us in determining what are corporate powers as applied to the present case. In State v. Cincinnati, 20 Ohio St. 18, it ivas held that investing a municipal corporation with the additional powers of municipal government, of police regulation, of judicial jurisdiction, and of taxation and assessment, was the conferring of corporate powers. In this case, outlying territory was brought within the corporate limits of the city, and hence within the operation of the powers already possessed by the city.

In State v. Cincinnati, 23 Ohio St. 445, it was held that a special act assuming to confer on the city of Cincinnati the control, management, and power to make all rules for the government of “ The Commercial Hospital of Cincinnati,” was one conferring corporate powers, and hence unconstitutional.

State v. Mitchell, 31 Ohio St. 607, in its application to the case at bar. is instructive. White, C. J., delivering the opinion, said : “ It is true, the act in question is in the form, in a sense, of a general law. But as was said in the case of The State v. The Judges, 21 Ohio St. 11, the constitutionality of an act is to be determined by its operation, and not by the mere form it may be made to assume. The act is entitled ‘An act to provide for the improvement of streets and avenues in certain cities of the second class.’ And by the first section it is made applicable to ‘ cities of the second class having' a population of over thirty-one thousand at the last federal census.’ Columbus is the only city in the state having the population named at the last federal census, and the act, therefore, applies alone to that eity, and never can apply to any other. The effect of the act would have been precisely the same if the eity had been designated by name instead of by the circumlocution employed. That the act undertakes to confer corporate power upon the city can not be doubtedfor while the property owners are required to be promoters of the improvement, the authoi’ity to direct it to be made is vested in the city council, and the bonds of the .city are to be used to raise money to pay for it.”

Still more instructive is the case of State v. Constantine, 42 Ohio St. 437.

In that ease the court was called upon to consider the constitutional validity of an act authorizing cities having a population of twenty thousand and not exceeding thirty thousand five hundred by the last federal census, and that have not been advanced to cities of the second grade, second class,” to elect by a vote of the electors, police commissioners, who, with the mayor, should constitute a board, invested with “ all powers and duties with respect to the appointment, regulation, government, and control of the police.” The act provided that no elector should at any election vote for more than two persons for such commissioners, and that any ballot containing the names of more than two persons for such office should not be counted.

The proceeding was in quo warranto to oust the members of this board from the exercise of their offices. The validity of the act was assailed upon the grounds, (1) that it abridged the constitutional'right of each voter at such election to vote for each candidate for each office, and, (2), that it was a special act conferring corporate powers. Judgment of ouster was entered. The principal opinion was delivered by Mcllvaine, J., who placed the judgment upon the first ground of objection.

Okey, J.,

delivered a concurring opinion. It so clearly illustrates what is meant by “ a special act conferring corporate powers,” as applied to the present case, that, lest the strength and terseness of its language should be imperiled by an attempt to summarize or paraphrase it, the foliowing extracts are given in the language of the concurring judge:

“ I do not dissent from the view expressed in the opinion of Mcllvaine, J., but I prefer to withhold the expression of an opinion upon that question until such opinion becomes necessary.. I think the case will be properly decided when a correct answer is given to the 'question, whether the act, so far as its validity is involved in this case, is in conflict with the provision of the constitution inhibiting the granting of corporate powers by special act.

“ Not only is the fact found in the record that the words above quoted from the act apply to the city of Springfield alone, but without such finding this court should take judicial notice that the words never did and never can apply to any other municipal corporation than Springfield; and, consequently, the act, to that extent, is local and special. State v. Covington, 29 Ohio St. 102; McGill v. State, 34 Ohio St. 228, 258, 270 ; State v. Brewster, 39 Ohio St. 653 ; Devine v. Com. of Cook Co., 84 Ill. 560. And as the act assumes to confer upou the city of Springfield power to hold an election of its electors for public officers for the corporation, and exercise other important functions, it is too clear for argument that that act, in form, confers corporate power. State v. Mitchell, 31 Ohio St. 529. And the act being invalid, for the reason stated, so far as it authorizes the city of Springfield to hold a corporate election, and it being neither reasonable nor probable that the legislature would have made provision with respect to Springfield, unless the whole act could have effect with respect to that city, it follows that the whole act is void, so far as Springfield is concerned. State v. Sinks, 42 Ohio St. 345. . . . Believing the position I have assumed to be impregnable, I am content to rely upon it.”

It was not made to appear in that case that any new police powers were conferred on the city of Springfield by the act in question, or that any thing more was contemplated by it than the conferring of the exercise of the police power which the city already posssessed upon new agencies and instrumentalities.

If the grant of authority to a municipal corporation to elect by a popular vote four police commissioners to control its police is to confer corporate power, how much more emphatically is it so to invest such a corporation with authority to chose a “board of control” of three members who are to be almost supreme in the government and administration of the affairs of a great city.

The analogy'is not at all disturbed by the fact that the city is by the act authorized to elect the couneilmen who are to appoint the board of control. It is still the act of the- city. The power is a radically new one, never before possessed in any form by the city. This is an answer to the argument for the respondents that the act confers no new powers upon the city, but simply changes the agencies by which the powers already possessed are to be exercised.

Heretofore two members of the city council have been chosen in each ward. By this act the wards are to be differently comprised, and but one member of the council chosen in each. This power of election, so radically new, is conferred by this special act.

Among the many powers not before possessed by the city is that conferred upon it to appoint, with numerous other officers, “ a prosecuting attorney of the police court, who shall also act as assistant prosecuting attorney of the county in which 'such cities are located.” It will not be contended that the conferring of power upon a city to appoint county officers is simply the transfer of a power already possessed from one agency of the city to another.

In the light of the cases cited, and of the reason and logic of the case itself, it is submitted that this act so clearly confers corporate powers upon the city of Columbus as to leave no ground for serious controversy.

It is maintained, however, that to hold this act to be unconstitutional is to antagonize former decisions of this court.

Walker v. Cincinnati, 21 Ohio St. 14 (known as the Cincinnati Southern Railroad Case”); State v. Brewster, 39 Ohio St. 653 ; the unreported case of State ex rel. McCarty v. Brewster; The State v. Covington, 29 Ohio St. 102; The State v. Baughman, 38 Ohio St. 455, are relied upon as sustaining the act in question.

It must be conceded that the principle declared in Walker v. Cincinnati is an important one.

By the principle therein declared, the general assembly may authorize a city of the state to pledge its corporate property, its revenues, the property of its citizens (through its taxing power) in the sum, if necessary, of twenty millions of dollars, to construct, own, operate, or lease a railroad to the Gulf of Mexico.

The proposition is one to strike thoughtful men with alarm ; as it did the court itself.

Scott, C. J., speaking for the court, declared: “This is the first instance, in the history of the state, so far as we are aware, in which the general assembly has undertaken to authorize municipalities to embark in the business of constructing railroads, on their own sole account, as local improvements. . . . But we must bear in mind that the question is one of legislative power, and not of wisdom, or even of the justice of the manner in which that power, if it exists, has been exercised. Had we jurisdiction to pass upon the latter question, we should probably have no hesitation in declaring the act under review to be an abuse of the taxing power.”

But it is profitable to inquire: What is claimed from these cases? Is it maintained that in either case this court was considering the validitity of a special act conferring corporate powers? And if it was, is it claimed that this court in either case up>held such an act ? It is but fair to this court to say that in the Walker case it was not claimed that the act in question was special or that it conferred corporate' powers.

There is not a suggestion from the opening sentence to the close of the long and very able opinion of the learned chief justice, that either question was involved in that case. What might have been the conclusion of the court in that ease if these questions had been considered, it is idle to conjecture.

It is no reflection upon the eminent judges who comprised this court at the time of that decision, however, to say that the announcement by this court that it is not eager to extend the application of the principle of the Walker case, would not be regarded as a menace to the rights or liberties of the people.

If it is claimed that State v. Brewster is authority upon the question of an act similar to the one before us, which conferred corporate, powers, it may be said that throughout the able opinion of Okey, J., in that case, there is not the slightest suggestion that such a question was involved. The clause of the constitution pertaining to that question is not once quoted or alluded to.

But we disclaim all purpose of suggesting any doubt concerning the conclusions reached and questions decided in the Brewster case. The legislation involved in that case was held to be general. With that holding we are still content. .

It it not enough to afford a binding precedent for us that these questions may have been lurking in the record of a former case, and might have been raised and considered. If they were not considered, it is as if they were not in the cases at all. We are not now reviewing, or considering the soundness of, the conclusions announced in either of those cases.

But to contend that this court has ever upheld a special act conferring corporate powers, is to argue that, in a moment of thoughtlessness, or, worse yet, in a moment of supreme recklessness, and by an act of judicial usurpation, it has trampled under foot a provision of our constitution plainly ordaining: “That the general assembly shall pass no special act conferring corporate powers.” The assumption is utterly unsupported by any former adjudication of this court.

In the eases of State v. Covington and State v. Baughman, supra, the powers in question wmre conferred upon unincorporated boards, and are relied upon to support the conclusions already announced in this opinion, that so far as the act conferred powders on the trustees of the sinking fund it was not unauthorized.

These cases also lend support to the further view that, so far as the act conferred corporate powers upon the city of Columbus, it is unauthorized; as they illustrate the distinction already defined between powers conferred upon a corporation and those conferred upon an unincorporated board or body.

It sometimes occurs that an act of the general assembly is enforced by this court, which, thereafter, when for the first time, its constitutionality is questioned, is overturned.

It is a familiar principle that courts are not officiously to raise constitutional questions not urged by counsel. In fact, it is the duty of courts of last resort not to decide an act unconstitutional so long as there are other grounds on which the case may be disposed of. Butzman v. Whitbeck, 42 Ohio St. 232; State v. Sinks, 42 Ohio St. 345; Cooley’s Con. Lim. 199. In the case of State v. Mitchell, supra, it was urged that an act substantially like the one in question, so far as it was special and conferred corporate powers, was before this court in Welker v. Potter, 18 Ohio St. 85, and was upheld. White, C. J., said, in the Mitchell case: “ The question under consideration was not made or considered in Welker v. Potter. . . . The fact that the act conferred corporate power, and was thus in conflict with section 1, article 13, was not suggested in argument or considered by the court. That case is, therefore, not to be considered as authority on any question involving the grant of corporate power.”

A still stronger case, illustrative of the rule that questions not considered in a former ease are not authority now, although they appeared in the record and might have been urged, is Fouts v. The State, 8 Ohio St. 98. Fonts had been tried for murder in the first degree, convicted, and sentenced to be hung.

Among the grounds urged for a reversal of the sentence, was the claim that the indictment failed to charge the offense ,of which he was found guilty. It transpired that other prisoners before him had been convicted and executed under the same form of indictment. Indeed, in a former case, Moore v. The State, 2 Ohio St. 500, a conviction under the same form of indictment was sustained and the prisoner executed.

But on investigation, the court found the indictment to be fatally bad, in that it did not charge the crime for which Fouts was convicted. What did the court do ? Bid it tell the prisoner that his conviction and sentence were illegal and void, aud were under an indictment which did not charge a capital offense, but that he must be executed; that a prisoner had already been ordered to be executed under the same form of indictment, and that the court, from an altar of justice must be turned to an altar of sacrifice, in order that it should be consistent with itself? On the contrary, the court promptly set aside the sentence of death!

Bartley, C. J., speaking for the court, said : It has been urged that this court had decided this question otherwise, in the ease of Moore v. The State of Ohio, 2 Ohio St. 501, by approving an indictment of the same kind. In answer to this, it is sufficient to say, that this question was not raised, or brought to the attention of the court in that ease. A reported decision, although in a case in which the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a principle not only not passed upon, but not raised or even thought of, at 'the time of the adjudication.”

If it be conceded, then, that the act involved in the Walker case, or any act supplementary to it, and authorizing the issuing of additional bonds by the city .of Cincinnati, was a special act conferring corporate powers, yet any adjudication not involving the consideration of that question is no authority now.

It is not easy to conceive of an argument supporting the act now in question, based on prior adjudications, which is not, at the same time, a labored apology for disregarding the constitutional provision which this case involves.

But let it be supposed that a special act conferring corporate powers had heretofore been upheld by this court in defiance of the constitution. Will it be claimed that the rule of stare decisis requires us to follow it ? While it is important that this.court should be consistent, it is also important that it should be right; especially upon all questions involving the constitution, which the people have, ordained for our guidance and their protection. There is no rule of stare decisis which exacts of this court a blind and sullen adherence to a palpable wrong ! For if it be true that in the past — bowing to the clamors of expediency oi’ of some special exigency — we have broken through the limitations and departed from the plain provisions of the constitution, we can not return too soon.

But it is submitted, however, that no case can be found which needs to be overruled or substantially qualified in order to sustain the conclusion we here announce, which is that the act in question, so far as it confers corporate powers upon the city of Columbus, is unconstitutional and void.

IV. But one question remains. How does the conclusion just announced affect those provisions of the act, which concern the powers of the trustees of the sinking fund? It is a familiar principle that when part of a legislative enactment is found to be unconstitutional, and another part, which, standing alone, would be free from constitutional infirmity, are so connected in the general plan and object of the act that it is highly improbable that the legislature would have enacted the one without the other, the one is so affected by the infirmity of the other that both must fall. Lookiug again to the title of the act, we find that.it is not simply one to divide the city of Columbus into wards. It is an act “to reorganize and consolidate” the city. The general plan of the act is to invest the city with an entirely new system of municipal government.

Looking at the entire act, it is highly improbable that the legislature would have enacted the provisions for redistricting the city without those for its reorganization. State v. Commissioners, 5 Ohio St. 507; State v. Sinks, 42 Ohio St. 345. The conclusion is inevitable, that so much of the act as provides for redistrieting the city is also invalid.

In declaring this result we are not unmindful that it is a grave matter to overturn, by judicial construction, a deliberate enactment of the general assembly. All presumptions are .in favor of the power of that body to enact the law. All considerations involving the wisdom, the policy, or the expediency of the act are addressed exclusively to that branch of the state government. Its power to enact the law is the sole question addressed to this court. So long as doubts concerning this power remain, it is our plain duty to resolve them in favor of the validity of the act.

But when the unconstitutionality of an act is very clear to this court, it is clothed with no higher function — it is invested with no more exalted duty — than to say so with promptness. To surrender our convictions to a mere sentiment, or to an apprehension that it may seem an arrogant assumption of superior wisdom to declare a legislative enactment invalid, would be a weak disregard of a plain duty, as dangerous to the state as the void enactment itself. Within the limitations of' the constitution there is safety and stability. Beyond them there is always peril and uncertainty.

Thus, at much length, do we submit the views which support our conclusions. The excuse for the length of this opinion is to be found in the belief that nothing is more potent to allay the smart and disappointment of an adverse judicial decision, than the assurance that it is the product of thoughtful deliberation and sincere conviction.

The demurrer is overruled and judgment of ouster entered.

Okbv, J.,

dissenting. 1. By the act of Eebruary 27,1885, “ to reorganize and consolidate cities of the first, grade of the second class (Columbus), and to reduce the ta<x levy of said cities” (82 Ohio L. 54), power is, in form, conferred upon the defendants and their associates to redistrict cities of the first grade of the second class into wards. As we will take judicial notice that Columbus is and will be, until April, 1887,'at least, the only city of that grade and class (The State v. Constantine, 42 Ohio St. 487; 3 Rev. Stats., § 1582; 1 Rev. Stats., §§ 1583-1588), the statute, in view of the time within which the prescribed services must be performed, embraces Columbus alone. The question is whether the provisions of the act, which in form confer such power, are valid and constitutional provisions; and this is the only question; for the only complaint in the petition for the writ of quo war ranto is, that the defendants are proceeding- to perform the duties, which, in form, are devolved upon them by the act, and that the act is unconstitutional. While there is 'difference of opinion among the members of this court, whether or not this is a local and special act, there is no difference of opinion as to the validity of the provisions so assuming to confer power .upon the defendants and their associates. We are all of opinion that, standing alone, those provisions are constitutional and valid, and that, if the act contained no other provisions, it would be wholly free from constitutional infirmity. Indeed, there seems to be little ground for difference of opinion on that question. 1 Rev. Stats., §§ 1628-1632; 3 Rev. Stats., §§2715-2729f; The State v. The Judges, 21 Ohio St. 1; The State v. Covington, 29 Ohio St. 102 ; The State v. Baughman, 38 Ohio St. 455 ; The State ex rel. Douglas v. Brewster, 39 Ohio St. 653.

This being true, I am very clearly of opinion judgment should be rendered in favor of the defendants, on the authority of decisions of this court, some of which are above cited, and others presently to be mentioned, which were supposed to rest on satisfactory gx-ound. The majority of the court place their decision, by which the opposite conclusion is x-eached, mainly upon the ground that section 9 of the act is local and special, applying directly to Columbus alone ; that section 9 attempts to confer upon, the city council corporate power; and that as the legislature would not have passed the act without that section, the whole act must fail, and hence the defendants must be ousted from the performance of the duties so imposed on them. Of course, it can not be doubted that thei-e is nothing in the constitution to prohibit appropriate local legislation, and an act may bo valid, though some of its provisions ax-e general, some local and others special; and iix such case, corporate power may be conferred by the general, but not by the special provisions.

Conceding, for the present, that the act. is local and special to the extent claimed by the majority, I deny' that, after holding the provisions for redistx-icting into wards to be valid, the majority were authoi-ized to institute a search to see whether some unconstitutional provision did not lurk in some section of the act, other than those so directly involved in this suit: and I deny, furthermore, that even if section 9 is wholly unconstitutional, that fact can rightly have any effect on the decision of this case. To show that these positions are impregnable, it will only be necessary to notice three or four cases.

In The State ex rel. Att'y-Gen. v. Cincinnati, 23 Ohio St. 445, these propositions received the approval of the whole court. “ 1. The inquiry in proceedings by information in the nature af quo warranto is limited to the charges in the information, and matter set up by way of plea is only material in so far as it shows warrant in law for the exercise of the authority alleged in the information to be usurped. 2. An information which charges a corporation with usurping certain franchises by acting through other parties, calls in question only the authority of the usurping corporation, and can not be extended so as to include authority not derivable from the corporation, and which such parties exercise in their own right.” And this is expressly approved in The Slate v. Building Association, 29 Ohio St. 92, and virtually approved in two cases, which will now be stated.

In The State v. Covington, supra, this court had under consideration questions as to the validity of the act of 1876 (73 Ohio L. 70), relating to the police in “ cities of the first class having at the last federal eeusus a population of two hundred thousand and over.” The act, of course, could never apply to any other city than Cincinnati, and hence was local and special. This has never been doubted or questioned. By the act it was provided that the governor should appoint a board and that the duty of making appointments of all officers connected with the police of Cincinnati, and the management and control of the police, should be vested in such board. As power was conferred by the same act upon the council of Cincinnati to raise, by taxation, the necessary funds to pay the salaries of the officers of police, it was quite as clear that the act conferred corporate power, and that it was local and special. Nevertheless, this court held, in an elaborate opinion by Mcllvaine, J., in which both article 2, section 26, and article 18, section 1, are referred to, as the act was free from constitutional objection, so far as it provided for the performance of duties by the governor, the police board, and the police, that the defendants, the board of police commissioners, were entitled to judgment, and accordingly judgment was rendered in their faver. When the whole case is considered, it is by no means clear that the court did not intend to sustain the statute as a whole ; but it is pi’obably true, and I am willing to concede that, as explained in subsequent cases (The State v. Baughman, supra; The State v. Constantine, supra), no more was intended than that the act was valid in the particulars involved in the suit, and would therefore be enforced. The case, then, is authority directly to the point, that in a proceeding by quo warranto to oust officers from the performance of duties imposed by statute, in appointing and controlling the police of a city, the court, if it find the authority so conferred to be valid, will not prevent the officers from performing such duties, on the ground that other provisions of the act, imposing upon council the duty of raising by taxation money for the payment of the salaries of such police force, are unconstitutional and void. In other words, the mere fact that an act contains unconstitutional provisions will not defeat it, but effect will- be given to the act as far as it is ■ possible to do so.

So in The State v. Baughman, supra, the same principle is very distinctly re-asserted. By the act of 1880 (77 Ohio L. 350), “ to establish a police force in the city of Xenia,” a board of police commissioners for that city was provided, and in that case the question was whether the powers which, in form, were conferred by that act on the board, were constitutionally and validly conferred. Among other things it was provided in the act, that not more than eight patrolmen should be appointed, “ unless by the concurrence of said council.” Salaries were fixed by the board, but it was provided that the same “ shall be allowed in equal monthly installments by said council, upon the certificate of said board, and paid out of the city treasury as other claims.” Sections 6 and 7 are as follows:

“ Sec. 6. On the first Monday of April, 1880, the office of marshal in said city shall cease and determine, and all duties imposed upon such officer by law or ordinance shall devolve upon, and be performed by said chief of police (provided for in a preceding section of the act) or some member of said force under his direction; provided that the council of said city shall provide a police force from the first Monday in April, 1880, until the force herein contemplated shall be fully organized.

“ Sec. 7. There shall be levied, annually, upon the taxable property of said city, such rate as the council of said city shall determine, not exceeding one mill upon each dollar valuation, for the purpose of paying the salaries of and defraying the expenses incident to said force; and said council shall, on or before the first Monday of June, annually, certify to the county auditor the rate of levy so determined, which shall be placed upon the grand duplicate of said city, and be collected as other taxes, and the fund arising therefrom shall be known as the police fund of said city; provided, that until a revenue shall be derived from the tax herein authorized, the salaries of said force shall be paid out of the general fund of said city.”

As will be seen by the report of the case, the attorney-general proceeded by information in the nature of quo warranto to oust the board from the performance of the duties imposed by the act, which act, as we have seen, was special and assumed to confer corporate power on the city through its council. The case was argued orally and on briefs, though the report contains no abstract of the argument. In the printed brief for relator it is said: “ This special act is unconstitutional (state constitution, article 13, section 1), because it confers corporate power on the city of Xenia — the power, namely, of being organized as a city of the fourth grade of the seond class, with a chief of police in lieu of a marshal for its principal municipal officer (section 2); the power to provide a room, light, fuel, record-books, and. stationery for speciaL police commissioners (section 1) ; the power to pay salaries to a special police force out of the city treasury (section 5), and provisionally out of the city’s general fund (section 7); and the power to levy a police tax, different from that authorized to other cities of its class by the general laws ” (section 7).

In the brief of the defendants it is said : The question, then, is whether that act, in so far as it undertakes to create the office of police commissioner for the city of Xenia, and provide the mode of filling the same, is prohibited by the constitution. The inquiry can be no broader. 23 Ohio St. 465. Whether the legislature may confer every power enumerated by the act could not be determined here. The right of the defendant to hold this office only is questioned. . . . Something was said in oral argument about authority given in the act to levy a tax being a grant of corporate power. It is not necessary to divide this question. Strike out of the law the provisions relating to a levy, and the remainder of the act could stand and be a fair police law.”

Johnson, J., in delivering the opinion, referred to the portions of the act above quoted as follows : “ It is claimed that these provisions are the conferring of corporate power by special act, within the inhibition of section 1, article 13, of the constitution. The solution of this question is not involved in the ease at bar. We may concede, for the purposes of this case, that the whole of section 7 is unconstitutional, and yet those provisions creating the board of police commissioners would not be affected.” And so the court, finding the provisions of the act conferring power on the board to be valid, rendered judgment in favor of the defendants.

That, according to The State v. Cincinnati, The State v. Covington, and The State v. Baughman, it was the plain duty of the court in this case to render judgment for the defendants, I entertain no doubt whatever. True, where a statute is in part constitutional and in part unconstitutional, and it is fairJy to be inferred that the legislature would not have passed the act if it had contained the valid provisions alone, the court may hold the whole act to be invalid (The State v. Sinks, 42 Ohio St. 345, 351); but I am wholly unable to see why the legislature would tnot readily and willingly have passed the act in question if it had contained no other provisions whatever than those providing for redistricting the city into, wards, and the assumption that it would not have done so, is, I believe, clearly unwarranted. Besides, it is not denied that the act contains other valid provisions than those relating to redistrieting. Four sections of the Revised Statutes (§§ 1785, 1998, 2141, 2477) are expressly repealed and re-enacted in a changed form, and section 8 of the act fixes and limits the rate of taxation in cities of the first grade of the second class. There is no intimation in the opinion that some, if not all, of those provisions are valid. In my opinion they are all valid; and it is impossible to state any reason why any city with the requisite population may not, in the mode prescribed by statute, become a city of the first grade of the second class, under the provisions of the act here in question, and other statutory provisions relating to such cities. I repeat, therefore, the cases I have cited are directly in point; it is impossible to distinguish them from this case, even if we assume the act to be merely local; and, hence, the duty of pursuing the same course in this case as in the Covington and Baughman cases, namely, to render judgment m favor of the defendants, was imperative and should have been performed, as I view it, though I am well assured the opinion of the majority was prepared in the full belief that a sound conclusion had been reached in that opinion; and in one thing we all agree, that is, that the question before us is not whether the act is just and wise or the reverse, but whether it is valid.

2. But while the position already taken in this ease is, I think, wholly impregnable, there is another equally strong and of far greater public importance. The claim of the majority, as we have seen, is, that although the sections of the act providing for the redistricting into wards would, if standing alone, be valid, yet as certain other provisions of the act which are special confer corporate power, and as the legislature would not have passed the act without such special provisions, the whole act must fail. But I deny that the act, or any part of it, is in conflict with the section of the constitution (article 13, section 1) which denies to the legislature authority to pass a special act conferring corporate powers. I also deny, as already stated, that if any provision of the act is unconstitutional, it was regarded by the legislature as a matter vital to the passage of the act. And although it is a rule that a statute will not be held to be unconstitutional, unless it is plainly in conflict with the organic law (38 Ohio St. 219), it is unnecessary to invoke that rule, for-in my opinion this act is clearly and plainly constitutional in all its parts.

At the time the act in question was passed, Columbus, the only city of the first grade of the second class, was divided into fourteen wards. In each ward a councilman is elected each year, holding his office two years, so that each ward has two councilmen. Each ward has one member of the board of education, holding his office two years, the even numbered wards electing one year and the odd numbered the next. There is a board of trustees of the water works and a board of police commissioners, one member of each of which boards is elected by the people each year. The duties performed in some other cities by boards of fire commissioners, boards of improvements, park commissioners, and the like, are performed in cities of the first grade of the second class by or under direction of committees of council. The mayor is vested with the powers of a judge of a police court, and the other officers of the city government are filled as provided by statute, some by election and some by appointment.

• The act in question contains provisions, as we have seen, for redistricting cities of the first grade of the second class into wards, and it also contains provisions for the election of one councilman in each ward for two years, except that at the first election those in even numbered wards shall be elected for one year only. It contains provisions for a board of control, to be elected by the council, consisting of three members, upon w’hich board is devolved the powers of the trustees of the water-works, board of improvements, park commissioners, fire commissioners, police commissioners, board of health, and the like. It contains provisions for the election of a board of education, substantially as in the former act. It contains provisions for a police judge, and vests in the police court the powers in criminal cases now exercised by the mayor. It also provides for the election of the other city officers appropriate to such grade. The ground of the decision is that the provisions of the act are special, not ouly with respect to the sections relating to redistricting, but that this objection extends to sections 6, 9, and 18, which assume to coufer corporate power.

Much emphasis is laid on the language of the act (section 6), which requires, in effect, an election to be held on the first Monday of April, 1885, and the council elected at that election, within twenty days after its organization, to appoint a board of control. In the first instance, of course, a board of control is to be chosen by the Columbus council alone, because at present Columbus is the only city of the first grade of the second class; but any city coming into that grade may choose a board of control, in the same manner, under the same act, without any violonce to its provisions; and, indeed, to permit such objection to prevail, is, in effect, to deny the validity of a multitude of acts in the

Ohio laws, from Vol. 77 to Vol. 88, inclusive, on the faith of which bonds have been issued, property purchased, and taxes assessed, among which laws the following may be referred to: 79 Ohio L. 99, 150; 80 Ohio L. 71, 150, 160, 161; 81 Ohio L. 42, 83, 158, 173,190, 185, 192; 82 Ohio L. 11, 43, 68, 77.

The provisions of the constitution denying to the legislature authority to pass any special act .conferring corporate powers, is not one of general, much less universal application, but is strictly limited in its operation. It was only prospective, applying to no laws in force when the constitution was adopted. It has no application to statutes conferring corporate'powers on counties, townships, or school districts, although each of those bodies is a corporation ; 'nor to statutes conferring corporate power upon any person, officer, board, company, or body, not a corporation; nor to any’statute, unless it be special and confer corporate power on either a private corporation, ora city, village, or hamlet which has been incorporated, though where such power is conferred on the council, the council is the alter ego of the corporation ; nor has the provision any relation to statute's providing for the surrender of corporate powers; nor to those which merely shift or change the agency by which an existing power is exercised ; nor to those which are temporary, as to fill an office until a general provision can go into operation; nor to provisions which are curative in their nature, although the original statute was void; nor to statutes for the completion of works of a public character, although the original act for the construction of the improvement may have been invalid ; nor to statutes applying to a class of municipal corporations, where such corporations have been classified under article 13, section 6. Citizen’s Bank v. Wright, 6 Ohio St. 318; State v. Union Tp., 8 Ohio St. 394; Foster v. Commissioners, 9 Ohio St. 540 ; State v. Roosa, 11 Ohio St. 16; State v. Cincinnati, 20 Ohio St. 18, 37, explained 23 Ohio St. 467 ; Walker v. Cincinnati, 21 Ohio St. 14; Pa. & O. Canal Co. v. Portage Co., 27 Ohio St. 14; State v. Covington, supra ; State v. Mitchell, 31 Ohio St. 592 ; State v. Turnpike Co., 37 Ohio St. 481; State v. Powers, Kumler v. Silsbee, 38 Ohio St. 54, 445 ; State ex rel. Douglas v. Brewster, supra; Bronson v. Oberlin, 41 Ohio St. 476; State v. Constantine, 42 Ohio St. 437; Exp. Falk, 42 Ohio St. 638; Thoms v. Greenwood, Superior Court, general term, 7 Am. Law Rec., Appendix; affirmed in Supreme Court December 24, 1878; State ex rel. McCarthy v. Brewster, Supreme Court, October 24, 1884; State v. Brown, Hamilton Co. District Court. 7 Am. Law. Rec. 652; Bead v. Plattsmouth, 107 U. S. 568; Sherman Co. v. Simons, 109 U. S. 735 ; Wheeler v. Philadelphia, 77 Pa. St. 338; Kilgore v. Magee, 85 Pa. St. 401. And see Rev. Stats., title 12, part 1.

If the question were res integra, by no means could it be said to be clear that this court would hold that article 13, section 1, of the constitution, has any application to municipal corporations. But according to a series of cases, the provision does extend to municipal as well as private corporations, and since State v. Mitchell, supra, this court has regarded the construction of the constitution in that particular to be settled. But it was soon found that by reason of such construction of the constitution, there was great difficulty in framing bills for municipal corporations, in view of article 13, section 1, of the constitution; for what might be appropriate, or even necessary for the welfare of one city, might be unnecessary or even mischievous if applied to another. Apparently there were two ways in which the difficulty presented by that section could be obviated. One was to amend the constitution — a very difficult thing in Ohio. The other, which was adopted, was to give to article 13, section 6, such liberal construction as to enable the legislature, under the power of classification, to afford to each of the large cities of the state that which is, in effect, a substitute for a charter, by permitting corporate power to be conferred on any grade or class. And surely it was not intended by article 13, section 1, to abridge the powers which would have existed if that section of the constitution had been omitted, further than the language imperatively requires; and any construction of that instrument, which so limits the section that legislation proper and needful for any city can not be lawfully enacted, without injuring or molesting some other municipal corporation, is not only narrow, but unsound. Accordingly, in 1878, a plan of classification according to population was furnished to, and adopted by, the general assembly (75 Ohio L. 166), and the same was carried into the Revised Statutes (section 1546 et. seq.), and reasons in support of such classification will be found ,in the preface to the revision. This being a general law, it was strictly in compliance with article 13, section 6. Under that classification, Cincinnati becaxne, in 1878, and still continues to be, the only city of the first grade of the first class, Cleveland the only city of the second grade of the first class, Toledo the only city of the third grade of the first class, Columbus the only city of the first grade of the second class, and Dayton the only city of the second grade of the second class; and legislation with respect to the.organization and government of any grade, although it confer corporate power, is genex’al legislation, and not in conflict with any provision of the constitution. True, it will be seen that it is an indispensable part of any valid plan of classification, that any city with the requisite population may pass into a higher grade without additional legislation; but it will also be seen that this can be done under the plan adopted, though only after the lapse of a considerable period from the first steps for such advance (3 Rev. Stats., § 1582; 1 Rev. Stats., §’§ 1583-1588). Thus, while Dayton may now (April 1,1885) have the requisite population-to become a city of the first grade of the second class, it can not do so for more than two year’s, and in the meantime a statute passed now and to take effect immediately applying to a city of the first grade of the second class alone and conferring cox’pox’ate powers on the council of such city, would not be in conflict with article 13, section 1, of the constitution, although when passed, and for more than two yeai’S thei’eafter, it could apply to no other city than Columbus. That this is clearly so will appear fi’om the cases above cited, the points in some of which will be hereinafter stated.

In speaking of the classification so adopted in 1878, and carried into the revision, it is unnecessary to extend the re-max’ks to any other than the first and second classes, though the provisions for classification extend to and embrace all municipal corporations. Title 12, of part 1, of the Revised Statutes, is framed with reference to that classification ; it is not only recognized throughout the whole revision, but numerous subsequent statutes recognize it; and it has been repeatedly sustained by decisions of this court. Among the decisions which expressly sustain such classification, is the above mentioned case of The State of Ohio ex rel. Douglas v. Brewster. That case involved, among other things, the constitutionality of the act of April 16, 1883 (80 Ohio L. 124), which conferred upon the council of cities of the first grade of the first class the power to levy taxes and do other corporate acts, and hence undeniably conferred corporate power, and required the power to be exercised in that year and in subsequent years; and yet Cincinnati was then, and for two years thereafter, at least, would necessarily continue to be, the only city of the first grade of the first class. But this court unanimously sustained the act, although its validity was directly assailed, holding: “The classification of municipal corporations, provided for in the Revised Statutes, sections 1546-1550, referred to in the act of 1883 (80 Ohio L. 124), is authorized by the constitution, and is not in conflict with article 2, section 26, nor article 13, section 6.” And in the opinion it was distinctly stated: “We hold that statutory provisions, with respect to any such class are, for governmental purposes, general legislation, and not in conflict with article 2, section 26, nor article 13, section 6, of the constitution.” 39 Ohio St. 653, 658. If not a rule of, property within Arrowsrnith v. Harmoning, 42 Ohio St. 254, that case should be adhered to, unless the clearest and most cogent reasons can be given for overturning it. But there is no such reason.

That the act now in question is legislation with respect to cities of the first grade of the second class, and therefore general, as clearly as the act of 1883, above-mentioned, is legislation with inspect to cities of the first grade of the first class, and therefore general — that if one of those acts is free from constitutional objection, so also is the other — are propositions which seem to be too clear for argument. And to talk about classification, unless you can confer corporate power on any grade or class, is simply absurd. To what purpose or end do you classify, unless that the legislature may confer on a particular grade or class such power? To be sure, it is objected that it is nowhere stated in The State v. Brewster, that the act was not in conflict with article 13, section 1. But to have so stated would have been a work of supererogation. A decision is as much authority for things virtually and necessarily decided, as for that which is in terms expressed. 'Whether the act was the conferring of corporate power, was not a question which merely lurked in the case. It was at the threshold, and was met and disposed of effectually. Article 2, section 26, requires certain acts to be in force throughout the state (Exp. Falk, supra); but legislation for the government of a grade or class of municipal corporations, however general its character, is not prohibited by that provision. Article 13, section 1, has no relation to any statute which is general, within article 2, section 26, but is in terms confined to acts which are special. The act in question in State ex rel. Douglas v. Brewster was general, in the sense I have explained, and notin conflict with article 2, section 26, and hence not special. Therefore, that act was not prohibited by article 13, section 1. Having decided the act to be general, of what importance would it have been to add that it was not special ? If judgment is rendered against the maker of a promissory note, for the amount thereof, we do not add that the plaintiff may have execution for the amount, for that right follows from the judgment. In State v. Turnpike Co., 37 Ohio St. 481, we have an instance in which a similar course was pursued. There it was argued that the three statutes then uuder consideration violated article 2, section 26, and article 13, section 1, but the court finding the act to be in conformity with article 2; section 26, so declare, without saying any thing about article 13, for the decision, as to the first named section, necessarily determined the question as to the other. I will venture to say that there is not a member of the court who believes the act involved in State ex rel. Douglas v. Brewster is in conflict with article 13, section 1, and, indeed, a majority of them have so expressed themselves.

Again, as showing a distinction between the act in question in the Brewster case and the act involved in this ease, counsel having called attention to the fact that the word Columbus appears in a parenthesis in the title, and hence the act is necessarily special. As Columbus was, at the time the act was passed, the only city of the first grade of the second class, and would continue to be such only city for more than a year — probably for several years — such word in the title seems to me to have been proper, and in a number of similar statutes, already cited, a like course was pursued. But aside from that, the matter is not of sufficient importance, under the circumstances, to have the slightest -weight in determining as to the constitutionality of a statute.

Further objection is made to the act upon the ground that it is not competent for the legislature to make certain sections of the Revised Statutes applicable or inapplicable to a particular class of municipal coi’porations, as is attempted in sections 15 and 22 of the act. Bnt this violates no provision of the constitution, and where that is the case, the legislature is the sole judge as to the forms of legislation. Kumler v. Silsbee, 38 Ohio St. 445.

Recurring to the cases sustaining the view that the act here in question is not in conflict with the provisions of the constitution denying to the legislature power to pass any special act conferring corporate powers, I will notice a few of them. And first with respect to Walker v. Cincinnati, 21 Ohio St. 14. In that case it is not decided in terms (but is it not virtually decided?) that the Cincinnati Southern railway act was not in conflict with that provision of the constitution; but the objection was distinctly made in the printed brief, as was shown in Thoms v. Greenwood, to be presently noticed. Nor is it decided in terms in Walker v. Cincinnati, that that act was not in conflict with article 2, section 26, though that objection was made in argument (p. 29). The opinion shows that article 13 was considered, and it is fair to say that section 1 was not overlooked. The argument was able and elaborate, and the consideration the case received was thorough, and it was expected the decision would end the controversy as to the validity of the act, so that disposition could be made of the bonds. The idea that the court evaded any question is not to be tolerated for a moment, and to my mind it is clear the court did not regard section 1 as an insuperable objection to the validity of the act. But however that may be, it can not be denied that in Thoms v. Greenwood the poiut was distinctly made that that act and those supplementary to it (66 Ohio L. 80; 73 Ohio L. 13; 75 Ohio L. 115; 3 Rev. Stats., §§ 691-702) were invalid because they were special acts conferring corporate power. That case was fully argued in the superior court of Cincinnati, in general term, October, 1878, before Yaple, Force, and Harmon, JJ., and the able opinion of the court, holding that no such conflict between the constitution and those acts existed, was delivered by Yaple, J., and is fully reported in 7 American Law Rec., Appendix, 1-56. The case was carried to this court on error, where it was elaborately ar*gued, orally and on briefs, largely on the question whether the acts were special and conferred corporate powers, and on December 24, 1878, the judgment of the superior court was affirmed. Gilmore, J., and myself were unable to see that the acts, or any part of them, could ever apply to any other city than Cincinnati, or to any other road than the Cincinnati Southern railway, and hence did not coucur in the decision; but, of course, no judge would be willing at this day to disturb it. I invite a comparison between those acts and the act in question here, upon the matter of conferring corporate power by statute claimed to be special.

State ex rel. Douglass v. Brewster, supra, has been sufficiently stated. The sequel to that case was State ex rel. McCarthy v. Brewster, in which this court, on October 24, 1884, awarded a peremptory mandamus requiring the auditor to place on the duplicate the tax levied by the board of education. The case involved the power of the city council of cities of the first grade of the first class to levy taxes, as well as the power of the board of education in that respect, precisely as in the former case, and called for a construction of the act of April 14, 1884 (81 Ohio L. 177, 178), and required the council as well as the board to make such levies in that year; and yet Cincinnati then was, and, without change of the law, would continue to be, for more than two years — probably for many years — the only city of the first grade of the first class, and of this the court would take judicial notice. Let some person interested in the question compare that act with the statute before us here, and point out why it is that one of them is special and confers corporate power, and not the other. To find any distinction between them in this respect is simply impossible.

In Foster v. Commissioners of Wood County, 9 Ohio St. 540, it appeared that the general assembly had passed an act extending to a private corporation power to complete a turnpike. Gholsou, J., said: “The public road in a particular locality, for the construction of which a provision had been made before the adoption of the constitution, remained unfinished and unpaid for. It was a duty resting on the government to dispose of this road. For the purpose of its completion, or the payment of labor expended, a law is passed directing the county commissioners to assess for a limited period of years the property immediately benefited. The amount of money so raised is to be expended under the direction of those having charge of the road. Now in all this we are not able to say, certainly not with that clearness and freedom from doubt which such a case requires, that the legislature exceeded its powers, and violated the constitution. . . . The particular thing authorized in this ease can, in no proper sense, be deemed a corporate power within the meaning of that section of the constitution,”

In State ex rel. Att'y-Gen. v. Cincinnati, 20 Ohio St. 18, it appeared that a statute, purely local, had been passed, extending the corporate limits of that city, so as to include several neighboring villages and other territory, and this court held that act to be a special statute conferring corporate powers, and hence unconstitutional. The case is important, and in order to understand it we must keep in mind the fact that the act subjected a large number of persons, with their property, to a new jurisdiction, and conferred upon council many new and unusual powers. "White,. J., dissented. Explaining his dissent in 23 Ohio St. 467, he said: “The object of the statute in that case was to enlarge and define the territorial limits of the city It seemed to me that such a statute might be regarded simply as an act of local legislation, like adding new territory to a county, or other subdivision of the state, for the purposes of local government. And that while the added territory would thus be subjected to a differut local government, yet it would be a government that was already existing, with adequate powers for the purpose. I was, therefore, inclined to the opinion that the statute in that case ought not to be regarded as an act conferring corporate power.” And it is quite evident from the language of Chief Justice BrinkerhofF, that if the act, as in this case, had conferred no new power, but had simply required other persons, under other official designation, to perform the same duties and exercise the same powers, the act, notwithstanding it was strictly local, would have been held to be valid, for he said : “Does this special act assume to confer upon the corporation of the city of Cincinnati additional corporate powers — powers which, as a municipal corporation, she did not previously possess? The answer is plain. It does assume to confer, on certain prescribed conditions, the power of municipal government, the power of police regulation, the power of judicial jurisdiction, and the powers of assessment and taxation, over a number of outlying suburban incorporated villages, and of other territory hitherto subjected to no jurisdiction except suchas belongs to the township, county, and state organizations.” 20 Ohio St. 37. Suppose our present classification had existed, and that act had conferred the power on cities of the first grade of the first class to take those steps the same year the act was passed. Can any person doubt the act would' have been sustained ?

Further time and space can not be taken to state in detail the various eases cited. They will be found to fully sustain the positions in support of which they are cited. Attention is called to the whole scheme of title 12, part 1, Revised Statutes, which not only provides for the classification, but in instances too numerous to cite, conferred important corporate powers on cities of a particular grade, to be exercised immediately, when it was impossible that such grade should, during the year, contain more than one city; and the same thing may be said of numerous statutes passed since the revision, many of which authorize cities of a particular grade, as the city of the first grade of the first class, to issue bonds immediately, when it was impossible, without further legislation, that such provision should extend to more than one city for a period of at least two years. Other provisions of the Revised Statutes' provide for filling vacancies and the like, temporarily, in cities of a particular grade. Without referring to the statutes in detail, or attempting to state the points decided in all the authorities cited, a single additional case will be noticed, and then this lengthy opinion will be brought to a close. The majority seems to rely, to some extent, on The State v. Constantine, 42 Ohio St. 437. In that case one judge, unwilling to express an opinion on the poiut decided, wrote an opinion concurring in the judgment on ground not passed upon by the other judges or either of them, as will appear from the report. What the concurring judge said is not the decision of a court, and it binds nobody, not even such judge. Still, of course, I do not object to the remarks. There it appeared the legislature had passed an act, assuming to confer the power to elect police commissioners on “cities having a population of twenty thousand, and not exceeding thirty-five thousand five hundred by the last federal census, and have not been advanced to a city of the second grade, second class.” The law was not a temporary one, but permanent in its nature. The question directly presented was, whether the police commissioners elected at the election so authorized, were officers de jure, < for if' the statute was unconstitutional there could be no officer, either dejure or defacto. In the concurring opinion the ground taken was that the act was local and special and conferred corporate power, and hence there was no valid election and no such office or officer. It would have been impossible to express any other view without coming in.direct conflict with The State v. Mitchell and other cases, for the act could never apply to any other city than Springfield. I am a firm believer in the soundness of that opinion ; but to state the case is to refute the notion that it lends any support to the decisiou in this ease.*

As tending to prevent legislation proper and needful for the municipal corporations of the state; as tending to cast doubt upon numerous statutes, and bonds issued and contracts made on the faith that such statutes were valid; as being not only wholly unsupported by authority, but, as I think, in conflict with several well considered decisions of this court, by force of which the validity of the classification provided for in the Revised Statutes was supposed to be settled; as being calculated — though wholly unintentionally, I am sure — to occasion mischief, I respectfully dissent from the judgment in this case.

Eollett, J., concurs in this dissenting opinion.