author: Bradbury, J.

text:
    McCloud and Geigle v. The City of Columbus.

      Municipal corporations — Improvement of public streets — Mode and time of advertising for bids — Section 2303 Revised Statutes.

    Where a municipal corporation, acting under chapter 4, division 7, of Title XII, Revised Statutes, improves a public street, the provisions of section 2303, prescribing the mode and time of advertising for bids, are mandatory, the compliance with which is a condition precedent to the power of the municipality to enter into a valid agreement in respect thereof.
    (Decided April 28, 1896.)
    Error to the Circuit Court of Franklin county.
    The plaintiffs in error brought in the court of common pleas of Franklin county, an action against defendant in error to recover on a contract for grading and paving Livingston avenue, a street of said city. The plaintiffs prevailed in the court of common pleas and the circuit, court reversed the judgment. Whereupon the cause was brought to this court by the plaintiffs in error, to reverse the judgment of the latter court.

      Paul Jones, for plaintiffs in error.
    1. The plaintiffs maintain that since there was an advertisement, although defective, the city was not acting ultra vires, but only in an irregular manner.
    2. The city is not permitted to take advantage of its own irregularity to defeat a contract entered into in good faith, after the contractor has performed his part of the contract without knowledge of the irregularity.
    3. The city, by passing an ordinance levying the amount to be paid the contractors, on the property abutting on the improvement and ordering the assessment payers “to pay the amounts óf money by them severally due” to the plaintiffs, ratified the contract and is estopped from setting up, as a defense against the contractors, this defect.
    4. The city was a warrantor of the validity of the assessment assigned by it to the contractors.
    5. The contract is indivisible. The contractors are entitled to the whole amount due thereon, or nothing. Becher v. McCloud et al., 4 C. C., 305.
    There is no statute of frauds in Ohio declaring a contract, made between a contractor and a municipal corporation on a defective advertisement, absolutely void, or that no action can be maintained thereon. If this contract is a nullity, the court must so pronounce it on some general principle of law. Wilder v. Commissioners, 41 Ohio St., 601 ; Commissioners v. Railroad Co., 37 Ohio St., 208; State ex rel. Garrett et col. v. Van Horn, 7 O. S. 327, 332; State v. Ex. of Buttles, 3 O. S., 309, especially paragraph 6, of the syllabus on page 309; State ex rel. Smead v. The Trustees of Union Township, 8 O. S., 394, 400, 402; Goshen Township v. Shoemaker et al., 12 O. S., 624, 627, 628.
    Tt takes a greater degree of irregularity to render a contract for a street improvement between a city and a contractor illegal, than to render an assessment, levied by the city to pay for such improvement, illegal. Moore v. Mayer, 73 N. Y., 238; Cincinnati v The Anchor White Lead Co., 44 Ohio St., 224; Wewell v. Cincinnati, 45 Ohio St., 407, arising out of the same assessment; Kirchner et al. v. Cincinnati, 14 W. L. B., 48; Hastings v. City of Columbus, 42 Ohio St., 585.

      Again, if the property owners, when there is a defective advertisement, petition to have the contract let to a particular bidder, or have a particular kind of improvement made, they are estopped from setting .up an irregularity in the advertisement. Tone v. Columbus, 39 Ohio St., 281; Moore v. Mayor, 73 N. Y., 238.
    If the failure to publish the ordinance does not invalidate a contract for a public improvement, the failure to publish the advertisement the full statutory time certainly ought not to invalidate the contract. A partial failure to observe the law is not as great an error as a total failure. 2 Dillon Mun., Corp. 936; Stuhr v. Hoboken, 43 N. J. L., 147.
    When property is taken in invitum and the statute requires a notice to be given the full measure of time required by law is usually exacted. This is not always the case. Sometimes the law permits a slight departure from the requirements of the statute. German Bank v. Stumpf, 73 Mo., 312. But the general rule is that nothing less than the full time will suffice where a man’s property is taken for a tax, assessment, or in a judicial proceeding. But, in this case, the proceedings were not in invitum. The city was soliciting the contractors to treat with it and the rule applicable in the case of taking property against the owner’s will does not apply.
    There is a broad distinction between cases where there was a defective advertisement and where there was no advertisement. In this case no objection is made to the form of notice; bids were received upon it; the plaintiffs were the lowest bidders. It gave to the public all the necessary information. The city solicitor or a tax-payer might have enjoined the city from letting a contract under such an advertisement. R. S., 1777 and 1778. This defect would have been a good defense in an action in mandamus to compel the city to award the contract to the lowest bidder. Mercer County v. Hackett, 1 Wall., 93; Mercer County v. Railroad, 27 Pa. St., 389; County of Warren v. Marcey, 97 U. S., 96, 2d paragraph of syllabus.
    Such a contract is the same as if it were a judgment rendered on a defective service. A judgment is a contract. Leake Con. 125, 155; Williams v. Jones, 13 M. & W., 628; Andrews v. Montgomery, 19 Johns., 162; India Rubber Factory v. Hoit, 14 Vt., 92.
    Where a judgment is rendered by a court against a defendant before the statutory time has elapsed, for him to appear and plead, or where there is any kind of service, however irregular, such a judgment is valid and binding except as against a motion to set aside filed in the court rendering it, or on error prosecuted to a superior court.

      Muncey v. Joest, Treas., 74 Ind., 409, opinion by Elliott, J., 412; Isaacs v. Price, 2 Dillon, C. C. R., 347; Ballinger v. Tarbell, 16 Ia., 491; Boket et al. v. Chapline et al., 12 Ia., 204; Bromley et al. v. Smith, 2 Hill, 517; Thompson v. Tohnie, 2 Peters, 157; Williamson v. Nicklin et al., 34 O. S., 123; Carper v. Richards, 13 O. S., 220, paragraph 4; Harrington v. Mofford, 46 Miss., 31; Bank of U. S. v. Danbridge, 12 Wheat. 64; Commissioners v. Aspenwall, 21 How., 539; Zabraskie v. C. C. C. R. R. Co., 23 How., 381; Bissell et al. v. City of Jeffersonville. 24 How., 288; Supervisors v. Schenck, 5 Wall., 772; Mayor v. Lord, 9 Wall., 414; Merchants Bank v. State Bank, 10 Wall., 604; Borgate et al. v. Short-
      ridge, 5 H. I. Cas., 298; East Anglian Railway Co. v. The Eastern Counties Railway Co., 5 Am. Law, Review, 772; Pollock on Contracts, 94; Miner’s Ditch Co. v, Zellerbach, 37 Cal., 543; De Voss v. Richmond, 18 Gratt., 338.
    Time and again corporations have been held estopped to plead ultra vires to an action on a contract performed by the other parties where the corporation has received the benefit, although clearly beyond its powers. 2 Beach on Private Corporations, sec. 425; Darst v. Gale et al., 83 Ill., 136; Railway Co. v. McCarty, 96 U. S., 258; Hitchcock v. Galveston, 96 U. S., 341; Thompson v. Lambert, 44 Iowa, 239.
    The city passed an ordinance ordering the assessment payers to pay, and authorizing the contractors to receive the cost of the improvement. The city is now estopped, and should not be heard to say that the contract was ultra vires.

    Where a city agrees to pay a contractor in assessments it impliedly warrants their validity. The city is liable for any balance which the contractors, for any reason, cannot collect, unless they have expressly agreed to take assessments as full payment.

      Cincinnati v. Diekmeier, 31 O. S., 242, 244; Bill v. Denver, 29 Fed. Rep., 344; Sleeper v. Bullion and Dustin et al., 6 Kan., 300; Bucroft v. Council Bluffs, 63 Ia.,646; Scofield v. Council Bluffs, 68 Ia., 695 ; Maher v. Chicago, 38, Ill., 266; Chicago v. The People, ex rel. 56 Ill., 326; Louisville v. Hyatt, 5 B., Mon. 501; Tourmier v. Municipality, No 1, 5 La., 298; Cronan v. Municipality, No. 1, 5 La., 537; Memphis v. Brown, 20 Wall., 289.

      Gilbert IL Barger, Florizel Smith and Fllsioorth G. Irvine, for defendant in error.
    The first and simple question to he determined is this: Is the contract sued upon an illegal contract because the agents of the city of Columbus did not advertise for bids, for the improvements therein provided for for the period of four weeks in two newspapers published in the corporation?
    We maintain the following propositions :
    1. The contract in question is an illegal contract because the mode and manner prescribed by law were not followed in its execution.
    2. As an illegal contract it cannot be sued upon.
    3. As an illegal contract it could not after-wards be ratified by any act of the. municipality.
    4. The equity of the case is not with the plaintiff in error.
    A municipal corporation has such powers and such only as are expressly granted by statute, and such as may be implied as essential to carry into effect those that are expressly granted ; and, relative to its power to enter into a contract, when the mode of contracting is specially and plainly prescribed and limited by express legislation that mode is exclusive and must be pursued, or the contract will not bind the corporation.
    Beach on Private Corporations, sec. 216.
    Nothing is more certain under the modern adjudications, than that the methods prescribed by charter or other statute must be observed by the corporation in entering into contracts if these statutory provisions are mandatory and intended by the legislature to act as wise restrictions upon the power of the corporations to contract. If, then, there are mandatory and restrictive enactro.en.ts requiring’ the corporation to contract only under certain formalities and conditions, then contracts made by the officers or ag-ents of the corporation which are not executed according to these statutory requirements do not bind the municipality.
    Beach on Public Corporations, sec. 252.

      Bank of U. S. v. Danbridge, 12 Wheat., 64; Smith v. Newburg, 76 N. Y., 136; Brady v. Mayor, etc., 20 N. Y., 312; Allen v. Galveston, 51 Tex., 302; Bryan v. Page, 51 Tex., 532; McBrian v. Grand Rapids, 56 Mich., 95; Argenti v. San Francisco, 16 Cal., 255; Los Angeles Gas Co. v. Toberman, 61 Cal., 199.

      Durango v. Pennington,8 Col., 257; People v. Webber, 89 Ill., 347; Worthington v. Covington, 82 Ky., 265; Addis v. Pittsburg, 85 Pa. St., 379; Keeney v. Jersey City, 47 N. J. Law, 449; State v. Passaic, 41 N. J. Law, 90; Siebrecht v. New Orleans, 12 La., Ann., 496; Baltimore v. Eschback, 18 Md., 276; Taft v. Pittsford, 28 Vt., 286; Fulton v. Lincoln, 9 Neb., 358; Hudson v. Marietta, 64 Ga., 286; Logansport v. Humphrey, 84 Ind., 467; Gates v. Hancock, 45 N. H., 528; Heidelberg v. San Francisco Co., 100 Mo., 69; Niles Water Works v. Niles, 39 Mich., 311; Wilhelm v. Cedar Co., 50 Ia., 254; Driftwood (etc.), Co. v. Connors, 72 Ind., 226.
    A person dealing with the agents of a municipal corporation has no right to presume that they are acting within the line of their duty, but must be careful to see that they are acting within the provision of the law which confers authority upon them.

      Smith v. The City of Newburgh, 77 N. Y., 136. Citing: Peterson v. The Mayor, 17 N. Y., 449; Cowen v. West Troy, 43 Barb., 48; Brown v. The

      Mayor, 63 N. Y., 239, 244; Hodges v. Buffalo, 2 Den., 110; McDonald v. The Mayor, 68 N. Y., 23, 27; Dillon on Mun. Corp., 463; Brady v. City of New York, 20 N. Y., 312; McDonald v. The Mayor, 68 Id., 23; Parr v. Village of Greenbush; 72 N. Y., 463, 472; Worthington v. The City of Covington, Ky., 265; Addis v. Pittsburgh, 85 Pa. St., 379; Major & C. C. of Baltimore v. Eschbach, 18 Md., 276; North Stafford, etc. v. Ward, L. R., 3 Exch., 177; Heidelberg v. St. Francois Co., 100 Mo., 69; Beaver et al. v. Trustees, 19 Ohio St., 108; Boren et al. v. Commissioners, 21 Ohio St., 311; Farman v. Commissioners, 21 Ohio St., 311; State ex rel. v. Commissioners, 36 Ohio St., 326; State v. Commissioners, 39 Ohio St., 188; Ross v. Board of Education, 42 Ohio St., 374; Ohio ex rel. v. Yeatman, 22 Ohio St., 553; American Clock Co. v. Commissioners, 31 Ohio St., 415.
    In this last case the contractor, Mills, was' not permitted to recover even by way of damages the money and property he actually invested and furnished under his illegal contract, while in the case at bar, McCloud and Geigle have received in full all costs and expenses to which they went, in the performance of their illegal contract and are here asking for more.

    Where a municipal contract is illegal because it is made in violation of a statute that was passed in obedience to the constitutional mandate that the general assembly shall restrict the power of municipal corporations to contract so as to prevent the abuse of such power, an alleged breach of such illegal contract affords no basis of an action at law. Roll v. Raguet, 4 Ohio, 400; Raguet v. Roll, 7 Ohio, 77; Thomas v. Cronise, 16 Ohio, 54; Hooker v. Palos, 28 Ohio St., 261; McQuade v. Rosecrans, 36 Ohio St., 442; Williams v. Englebrecht, 37 Ohio St., 383; Kahn v. Walton et al., 46 Ohio St., 195; Jacobs v. Mitchell et al., 46 Ohio St., 609; Dillon on Munci. Corp., Sec., 447; Dillon on Munci. Corp., Sec. 458; Oliver v. Gilmore, 52 F., 562; Kountze v. Flannagan, 19 N. Y., 33; Dil. on Munci. Corp., Sec. 466; Dickinson v. Poughkeepsie, 75 N. Y., 65; Mitchell v. Milwaukee, 18 Wis., 92; Emery et al. v. The Ohio Candle Co., 47 Ohio St., 320.
    Where the form and manner of making a municipal contract are prescribed by legislative enactment for the manifest purpose of restricting the power of the municipality in order to avoid the dangers that would flow from an unrestricted excise of such power, and in violation of such statute the ag’ents of the corporation attempt to enter into an agreement that purports to bind the city, neither the agents of the corporation nor the municipality itself can by any subsequent transaction ratify such illegal contract. Dillon on Munci. Corp., Sec. 449; Bryan v. Page, 51 Texas, 532; Pomeroy on Equity Jur., Sec. 964; Corry v. Freeholders of Somerset, 44 N. J. L., 455; Keeney v. Jersey City, 47 N. J. L., 453.
    No subsequent act can make the illegal contract effective. Sault Ste. Marie v. Van Dusen, 40 Mich., 429.
    Contracts contra bonos mores, forbidden by positive law, or opposed to public policy, are void, and can neither be ratified nor enforced. State v. Exec'r. of Buttles, 3 Ohio St., 310; Peterson v. The Mayor, 17 N. Y., 454; Gates v. Hancock, 45 N. H., 528; Marsh v. Fulton Co., 10 Wall., 684; Reilly v. Philadelphia, 60 Pa. St., 467; Zottman v. San Francisco, 20 Cal., 96; Swift v. Williamsburg, 24 Barb., 427; Murphy v. City of Louisville, 9 Buch., 189; Hague v. City of Philadelphia, 48 Pa. St., 529.
    Where a contractor has been paid in full for all labor, materials, and other things furnished by him upon a street improvement under a contract that is illegal because made by the agents of the municipal corporation in violation of the statute that in obedience to^ the constitutional mandate defines and restricts the power of the municipality to enter into contracts for such work, a court of equity will not, after such restoration to his former position and condition, aid such contractor to get from the treasury of such city money that he never owned and whose value he never parted with or lost. Dillion on Munci. Corp., sec. 459.
   Bradbury, J.

The circuit court held the contract, by virtue of which plaintiffs sought to recover, tobe void, for the sole reason that the proposition for bids, for making the improvement was not advertised as prescribed by section 2303, Revised Statutes.

The scheme of improvement contemplated an assessment against the property abutting thereon to pay the expense of making it. The record discloses the adoption, of the preliminary resolution declaring a necessity for the improvement and specifying its nature, or character, and the subsequent enactment of an ordinance providing therefor ; that a notice calling for bids to make the im- • provements was published; that the plaintiffs in error were the lowest responsible bidders therefor; that the plaintiffs in error and the city of Columbus entered into a contract, based upon the bid of 'the former, by the terms of which they were to perform all the labor and. furnish all the material necessary to complete the improvement, and to receive therefor $8,563.36. That they had fully performed the contract on ■ their part. The terms of the contract were such that the city was not to be liable thereon to the plaintiffs in error until after the latter had exhausted their remedies against the owners of the property that abutted upon the improvements, and then only for the balance that remain uncollected. After the improvements had been substantially completed and the proportion of the entire cost that should be assessed against each parcel of abutting property, ascertained, a large number, if not all, of the abutting proprietors brought an action against the citv of Columbus and the plaintiffs in error to enjoin the city from placing the assessments upon their respective lots. This action was taken to the circuit court on appeal. The trial in the circuit court resulted in a finding that the assessments were irregular; the court proceeding under section 2289, Revised Statutes, then ascertained the actual cost of the labor and material that went into the improvement apportioned the same among the abutting owners, and charged the share of each owner upon his lot.

The contractors, plaintiffs in error, were thus reimbursed for whatever they had expended in and about the improvement. The difference between this expenditure and the contract price, representing the profits of the transaction, was about two thousand and three hundred dollars, and the object of the present action is to recover that sum from the city.

The improvement in question was local; it was inaugurated and carried onward to completion upon the supposition that the benefit to result from, it to abutting property was at least equal to the sum it would cost, and that sum was to be apportioned among the owners of that property and made a charge thereon. This was the primary source from which payment was to be drawn. The city was not to be called upon for payment of any part thus to be charged upon abutting property- until after this primary source had been exhausted, and then only for so much thereof as could not be recovered from that source. Under thése conditions the city of Columbus was under no higher obligation than that of the guarantor.

The owners of the abutting property were relieved of any obligation to pay the contractors, plaintiffs in error, any sums excepting the actual cost of the improvement, because of the omission of the city council to cause the notice to bidders to be advertised according to the requirements of section 2303, Revised Statutes. That section requires -such notice to be published for four weeks in two newspapers published and of general circulation in the city, where the estimated cost of the improvement exceeds five thousand dollars. The estimated cost of the improvements in this cause exceeded that sum. A notice calling for bids was published, but the mode or length of time does not definitely appear, the record merely showing that it was for less than the statutory period. The duty of publication belongs to the city council. In omitting to ;make it in the manner prescribed by the statute the city council violated that duty. Who is to suffer for this default? Ordinarily a principal is answerable for a default of his agent in the line of the agent’s duty. If, however, that general principle should be invoked as the sole arbiter of the question, much difficulty might arise in its application. Doubtless the council of a municipal corporation is generally its agent, but that the legislature might impose duties upon that body other than those pertaining to the entire municipality is conceivable. Municipal corporations are agencies of the state in the administration of its governmental affairs, and might be authorized to charge the state itself with pecuniary obligations. That it may impose obligations upon distinct portion of its inhabitants, in connection with local improvement, is shown by its frequently acting in such matters, as expressly authorized by statute. Ih such cases, no principle is ■apparent which makes that body, while acting in the local affair, the agent of the whole body of the people, instead of that portion upon whose immediate affairs the council is acting, so as to cast upon the entire body of taxpayers the burden of mistakes made in transacting the concerns of a part only. It would seem that such consequences should result, and the whole body of the inhabitants charged with liability under such circumstances, only by virtue of some oositive provisions of law.

In the present case the city of Columbus entered into a contract to pay for any balance not collectable from the abutting proprietors, and thereafter if the contract was valid it was bound to perform what the statutes required it to do to charge those abutting proprietors, and therefor if by reason of an omission of anything it was subsequently required to do, those abutting proprietors, who, as we have seen, were primarily liable, were discharged, the city should make good the loss. The question, however, is, was the contract in this ease valid? The duty which the council omitted was one which preceded the making of the contract, and was preliminary thereto. The notice which it omitted to publish in the prescribed manner and for the prescribed time was provided by the legislature as a safeguard to the taxpayer, whether local or general, against private rapacity and official indifference. This beneficial provision has no value if it can be disregarded by a city council, and yet a contract entered into binding upon the city and consequently imposing a burden upon the whole body of its taxpayers. The evils that imperatively demand these restrictive statutes are of common notoriety. They can be held in check only by regarding as mandatory statutory provisions designed to circumvent them.

There are no equitable considerations that require the whole body of the taxpayers of the city to contribute to a fund to pay the plaintiffs in error. The latter, as we have seen, have been reimbursed for their expenditures made' in behalf of the improvements. They are now seeking the profits of the transaction, which, if paid by the city must be from funds raised chiefly by those who were not appreciably benefited by the work done and materials furnished. The plaintiffs in error, therefore, must recover, if at all, not upon-any equitable g’rounds, but upon a strict legal right. We think there is no hardship in requiring them, and all other parties who undertake to deal with a municipal body in respect of public improvements, to investigate the subject and ascertain at their peril whether the preliminary steps leading up to contract and prescribed by statute have been taken. No high degree of vigilance is required of persons thus situated to learn the facts. They are dealing with public agencies whose powers are defined by law, and whose acts are public transactions, and they should be charged with knowledge of both. If the preliminary steps necessary to legal-' ize a contract, have not been taken, they can withdraw from the transaction altogether, or delay until the steps are taken. The citizen and taxpayer, in most instances, unless directly affected by the improvement has but a remote, contingent and inappreciable pecuniary interest in the matter and should not be required to personally interest himself about its details. If he should do so and ascertain fatal irregularities, his remedy must be by a civil action which is attended always by annoyance and expense and frequently by uncertainty.

The judiciary should construe these restrictive statutory provisions designed by the legislature to protect the public treasury from unconscionable private greed so as to effect the object intended. To accomplish the end designed by the statute, the publication of the notice prescribed by section 2303 should be held a condition precedent to the power of the city to enter into the contract providing for the improvement.

This question, and others analogous to it, have been discussed so frequently by judges and authors that it is impracticable to give more than a partial citation of the volumes in which they have been treated.

An, occasional hardship may accrue to one who negligently fails to ascertain the authority vested in public agencies with whom he deals. In such instances, the loss should be ascribed to its true cause, the want of vigilance on the part of the sufferer, and statutes designed to protect the public should not be annulled for his benefit. Seibrecht v. New Orleans, 12 La. Ann., 496; Baltimore v. Esch bach, 18 Md., 276; Taft v. Pittsford, 28 Vt., 286; Fulton v. Lincoln, 9 Neb., 358; Hudson v. Marietta, 64 Ga., 286; Logansport v. Humphrey, 84 Ind., 467; Gates v. Hancock, 45 N. H., 528; Heidelberg v. San Francois Co., 100 Mo., 69; Niles Water Works v. Niles, 59 Mich., 311; Wilhelm v. Cedar Co., 50 Ia., 254; Driftwood (etc.) Co. v. Commissioners, 72 Ind., 226; Beach on Public Corporations, section 252; Bank of U. S. v. Dandridge, 12 Wheat., 130; Smith v. Newburg, 77 N. Y., 130; Brady v. Mayor, etc., 20 N. Y., 312; Allen v. Galveston, 51 Tex. 302; Bryan v. Page, 51 Tex., 532; McBrian v. Grand Rapids, 56 Mich., 95; Argenti v. San Francisco, 16 Cal., 255; Los Angeles Gas Co. v. Toberman, 61 Cal., 199; Durango v. Pennington, 8 Col., 257; People v. Weber, 89 Ill., 347; Worthington, v. Covington, 82 Ky., 265; Addis v. Pittsburgh, 85 Pa. St., 379; Keeney v. Jersey City, 47 N. J. Law., 449; State v. Passaic, 41 N. J. L, 90.

Judgment affw^mecl.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Varwig v. The Cleveland, Cincinnati, Chicago & St. Louis Railroad Co.

      Bona fide purchaser defined — Act of February 22, 1893 — Right of easement of land owner — Such right not affected by previous unrecorded deed from landowner's grantor to railroad — Burden of proof — Purchaser entitled to tnjunction against additional t? ack, when,

    1. A purchaser of land who has paid a valuable consideration therefor is a bona fide purchaser within the terms of the act of February 22, 1831, 1 S. & C., 458. Morris v. Darnels, 35 Ohio St., 406, approved and followed.
    2. Where, prior to the purchase of land abutting upon a village street, a railway company has, with the consent of the owner of such land, laid in the street in front of the premises purchased, a single track of its road and is operating cars thereon, such condition is notice to the purchaser of a right to maintain such track, and his easement in the street, as owner of abutting land, is, to the extent of such possession and user, affected thereby. But such right will not be aflected by an unrecorded deed from his grantor executed more than six months prior, giving to the company permission to lay additional tracks, if, at the time of his purchase, the purchaser acts in good faith and has no knowledge of the existence of such conveyance.
    3. The burden of proving bad faith or knowledge is on the company.
    4. And where, in a proper action, a purchaser brings himself within the protection of the statute, he is entitled to an order enjoining the company from laying an additional track until the right is acquired by appropriation, or other suitable means.
    (Decided April 28, 1896.)
    Error to the Circuit Court of Hamilton County.
    Action to enjoin the defendant company from laying an additional track in front of the premises of plaintiff on Lebanon street, in the village of Carthage. On trial in the common pleas plaintiff’s action was dismissed and costs awarded against him, and a like judgment was rendered, on appeal, by the circuit court. Facts sufficient to an understanding of the points decided are stated in the opinion.

      Milton Scoter and Follett & Kelly, for plaintiff in error.
    The exemption by the ordinance of all liability on the part of the village “for any damage which may be claimed by any citizens of the village, in consequence of injury to property caused by the construction of said railway through or across any •of the streets of said village,” certainly can not be construed as conferring any rights upon the the railway company, as against the citizens, and even if the ordinance did not contain this exemption, under ■ the provisions of the statutes of this state, the rights of abutting property owners can not be affected by any act of the village council.
    We think the ordinance is not a material factor in-the determination of the rights of the parties to this controversy, and there is nothing to show that it was considered, or was within the contemplation of the parties, at the time of the giving of the release. The release was in terms for a right of way, cos then surveyed, and not of a right of way, as authorized by village council. Morris v. Daniels, 35 Ohio St., 406; Ryder v. Rush, 102 Ill., 338; Rogers v. Wiley, 14 Ill., 65; Spofford v. Weston, 29 Me., 140; Newton v. McLean, 41 Barb., 285; Pollak v. Davidson, 87 Ala., 551; Bartlett v. Varner, 56 Ala., 580; Center v. Planters, etc. Bank, 22 Ala., 743.
    But if we are wrong, although we confidently believe that the effect of the release cannot in any way effect the rights of the plaintiff herein, or operate as notice to him of the terms of such release, we claim — That the release itself conferred no right upon the defendant to lay more than one track. Railroad Co. v. Commissioners, 31 Ohio St., 338; Railroad Co. v. Williams, 35 Ohio St., 168; Railroad Co. v. O'Harra 48 Ohio St., 343. To the same effect, and fully sustaining the doctrine announced in the foregoing decisions, see Cincinnati v. Cumminsville, etc., Railway, 14 Ohio St., 523; Hatch v. Railroad, 18 Ohio St., 92; Railroad v. Lawrence, 38 Ohio St., 41; Poter v. Railway Co., 20 Ohio St., 150; Parrot v. Railroad Co. 3 Ohio St., 330; 10 Ohio St., 624; Railroad Co. v. Hambleton, 40 Ohio St., 496; Lewis Em. Dom. Sec. 111; Lackland v. Railroad Co., 31 Mo., 180; Railroad Co. v. Reed, 41 Cal., 256; Maltman v. Railroad Co. 41 Ill., App., 229; Railroad Co. v. Reich, 101 Ills., 157; Farrand v. Railroad Co., 21 Wis., 441; Dabach et al. v. Railroad Co., 89 Mo., 483; Rude v. St. Louis, 93 Mo., 48; Theobald v. Railroad Co., 4 L. R. A., 735; Nichols v. Railroad Co., 16 L. R. A,, 371; Railroad Co. v. Heisel, 38 Mich., 62; Edmison v. Lowry, 17 L. R. A., 275. West Ry. of Ala. v. Ala. Grand T. R. R. Co., 17 L. R. A., 474; Tate v. O. & M. R. R. Co., 7 Ind., 479; Roberts v. C. & N. R. R. Co., 35 Wis., 659; Veazie v. Penobscot R. R. Co., 49 Me.,. 119; People v. D. & C. R. R. Co., 58 N. Y., 165; Hampden v. N. H. & N. R. R. Co., 27 Conn., 165; Egerer v. N. Y. C. & II. R. R. Co. (N. Y.), 14 L. R. A., 361; Selden v. Jacksonville & C. R. R. Co. (Fla.), 14 L. R. A., 370; Abendotte v. Manhattan R. R. Co., 122 N. Y., 1; Kane v. N. Y. Elev. R. R. Co., 125 N. Y., 164; Adams v. C. B. & N. R. R. Co., 39 Minn., 286.

      The grant by Applegate, “as now surveyed,” under which the defendant claims the right to put down this additional track, did not in terms designate more than one track, and will, therefore, be limited to one track. The railroad company obtained no greater right under the grant than it would have obtained under proceedings to condemn.
    Lewis Em. Dom. sec. 117; Railroad Co. v. Hitchcock, 51 N. W. Rep., 808 ; Warner v. Railroad Co., 39 Ohio St., 70; Brigham v. Railroad Co., 1 Allen, 316; Railroad Co. v. Railroad Co., 31 N. J., 205; Lance’s Appeal, 93 Am. Dec., 722 ; 55 Pa. St., 16; Harmon v. Angier, 2 Allen, 128; Washburn, Easements & Servitude, 4th Ed., p. 265; Goddard’s
    Law of Easements, 276; 6 Am. & Eng. Enc. of Law, 149; 3 Kent’s Com., 419; Jennison v. Walker, 11 Gray, 426; Chandler v. Aqueduct Corp., 125 Mass., 544; Marsh v. Haverhill Aq. Co., 114 Mass., 106; Hall v. Pickering., 40 Me., 548; Wyncoop v. Berger, 12 Johns., 222; Atkins v. Bordman, 4 Lead Cas. Real Prop. (Sharswood & Budd), 183; Jones v. Percival, 5 Pick. (Mass.), 437; Onthank v. The L.

      S. & M. S. R. R. Co., 71 N. Y., 194; Lewis Em. Dom. sec. 290; Carty v. Shields, 6 Cent. Law Jour., 354; French v. Hayes, 43 N. H., 30; Stone v. Clark, 11 Metcalfe (Mass.), 378; L. & N. B. Tp. Co. v. N. & K. Tp. Co., 2 Swan, 182; Griffith v. House, 18 John., 397; State v. Norwalk etc. Co., 10 Conn., 157; Turnpike Co. v. Hosmer, 12 Conn., 364.
    The right to re-locate or add to the grant should not be extended by construction.
    Under the provisions of the statutes of this state, in proceedings to condemn, the use for which property is to be condemned must be set forth. Giesy v. Railroad, 4 O. S., 308; Railroad Co. v. Bohn, 34 O. S., 114.
    The plans of the proposed road must be known before damages can be assessed, and if the location or mode of construction is changed after the grant is acquired, or damages assessed, an injunction will lie. Carpenter v. Railroad Co., 24 N. J. Eq., 249, Ib. 408; 26 N. J. Eq., 168; Hill v. Railroad Co., 7 N. Y., 152; Marsh v. Railroad Co., 19 N. H., 372.
    The right to lay one track does not carry with it the right to lay another or additional track, or change the location of the tracks. Moorhead v. Railroad Co., 17 Ohio, 340.
    This latter case was decided in 1848, and prior to the decision, but after the suit was brought, the legislature passed the act (vol. 46, p. 44, sec. 10), now sec. 3283, R. S.,. authorizing railroad companies to condemn the right of way over and upon public streets under proper circumstances, and in 1853, the case of the L. M. R. R. Co. v. Naylor, 2 O. S. 236, was decided. Groff v. Bird in Hand Tp. Co., 5 L. R. A. 661 (Pa.); Tootle v. Clifton, 22 Ohio St., 253; Crawford v. Titus, 46 Ohio St., 528; Wagner v. Railway Co., 38 Ohio St., 35; Yeoman v. Lasley, 36 Ohio St., 416; Harback v. Railroad Co., 11 L. R. A., 113; Railroad Co. v. Railroad Co., 3 L. R. A., 240; Mettler v. Railroad Co.,25 N. J. Eq.,214; Redman v. Railroad Co., 33 N. J. Eq., 166; Bolton v. McShane, 67 Ia., 207. Relief in these eases was not based upon the grounds of the irreparable character of the injury and the insolvency of the • defendant. Quinton v. Burton, 61 Ia., 471; Morgan v. Miller, 59 Ia., 481; Grant v. Crow, 47 Ia., 632; Bells v. Belknap, 36 Ia., 583; McCord v. High, 24 Ia., 336; Rudinger
      v. M. & W. R. R. Co., 62 Mich. 29; Stamford v. Stamford Horse Railroad Co., 1 L. R. A. 374, s. c. 56 Conn. 381; Huddleston v. Killbuck Tp. 5 Cent. Rep. 557-8 (Pa.); Nichols v. A. A. & Y. S. R. R. Co. 16 L. R. A.,371, 374-5; Herbert v. Penn. R. R. Co., 43 N. J. Eq., 23; Lewis Em Dom. section 804; Davis v. Londgreen, 8 Neb. 43; High on Injunc. sections 498,500, 510; Kerr on Injunc. pp. 15, 14, 172-3; Maxwell Code Plead. 198.
    ■ Harmon, Colston, Goldsmith c§ Hoadley, for defendant in error.
    Plaintiff contends that as the railway company only constructed a single track road on Lebanon street in front of his premises, at the time, this release only applied to a single track, and that defendant has not the rig’ht now to lay a second track on Lebanon street in front of his premises. Before considering this proposition we desire to call the court’s attention to the language of the ordinance giving the Cincinnati & Springfield Railroad Company the right to lay its tracks upon Lebanon street, which was passed on the second day of May, 1871, nearly fourteen months before the release given by Yarwig’s predecessor in title. The validity of this ordinance as a contract has been established by this court in Village of Carthage v. C. & S. R. R. Co., 36 Ohio St., 631. We contend that the railway company had the right to build this additional track, by virtue, first, of the ordinance passed on the second day of May, 1871, from which we have just quoted, and secondly, by virtue of this release of date June 20, 1872, from which we have also quoted.
    The language of the ordinance just quoted, speaks of the right, not only to construct a railway, but to lay its tracks in said street. And even if the word “tracks” were not used, we submit that under the authorities, the term railway is broad enough to include all necessary tracks. Railway v. Williams, 54 Pa. St., at page 107; White v. Railroad Co., 122 Ind., 317; Railway Co. v. Smith, 111 Ill., 363; Railway Co. v. Eisert, 127 Ind., 156; Railroad Co. v. Railroad Commissioners, 56 Conn., 313; Getz’s Appeal, 3 Am. & Eng. R. R. cases, 186; Railroad Co. v. Daniels, 16 Ohio St., 398.
    It is conclusively shown, that the right of way as then surveyed ran from Second to Sixth street, in front of, and past plaintiff’s land, and such right had been granted to the railway by the village, but this does not mean a single track, as plaintiff contends.
    Some claim is made by plaintiff’s counsel, that because the railway company did not exercise its right to lay a second track along Lebanon street for a number of years, it thereby lost the right to now lay a second track in said street. White v. Crawford, 10 Mass., 183; Arnold v. Stevens, 24 Pick., 106.
    The public has acquired rights by the laying of this additional track, where it is admitted by the record that the defendant company, by reason of the increase of its business, and in order to safely move its trains, required the new and additional track in controversy in this cause. Dayton, Xenia & Belpre R. R. Co. et al. v. Henry Lewton, 20 Ohio State, 412. McElroy v. Kansas City, 21 Fed. Rep., 257; Osborne v. Railway Co., 147 U. S., 259, The release was the full equivalent of condemnation proceedings for the construction and maintenance of said railway and the laying of any and all tracks along said street ih front; of said premises, which might be authorized by the village of Carthage. Indeed, at the time of the grant and the release in question, there is no evidence that any track had then been laid, and therefore plaintiff in error would not be entitled to an injunction ¡preventing the laying of this additional track or of any mandatory injunction for its removal, as claimed.
   Spear, J.

The defendant is a railroad company operating a steam railway, and the successor of the Cincinnati and Springfield Railway Company. The plaintiff is the owner of a frontage on the east side of Lebanon street, in the village of Carthage, Hamilton county, between Fifth and Sixth streets, of five hundred eight and eight-tenths feet. He acquired the same by purchase from one John W. Applegate, July, 1876, and then received a deed. Applegate had been the owner from the year 1870 to the above date.

On May 2, 1871, the council of the village of Carthage, duly passed an ordinance (which is still in force), authorizing the Cincinnati and Springfield Railway company “to appropriate and use so much of Lebanon street and its crossings as may be necessary for the construction of the Cincinnati and Springfield Railway through said village of Carthage, and to lay their railway tracks therein,” providing, among other things, “that said Lebanon street be so graded and graveled by said railway company as to permit the portion thereof not occupied by said track to be used as other streets are used to the acceptance of the village council,” and, providing further, that for the privileges g’ranted said railway, the village incurred no liability “for any damage which may be claimed by any citizen of the village of Carthage, in consequence of injury to property caused by the construction of said railway through or across any of the streets of said village. ’ ’

On the 20th of June, 1872, said Applegate, by deed of release, in consideration of the station and depot remaining, as per deed of even date, and $1,500, and the advantages the grantor and public would derive from the construction of the railway, granted unto the said The Cincinnati and Springfield Railway “as now surveyed * * * * the right of way for so much of the railway as may pass through the following described piece, parcel or lot of land situated in Millereek township, Hamilton county, state of Ohio,” being the same premises described in the petition, “and I also hereby release to said railway company all claim for damages on account of the construction of said railway over and upon Lebanon street, Carthage, Hamilton county, Ohio, through and along-said premises.” Concurrent therewith, in consideration of $1,500, he conveyed the ground on which the station then and now stands by deed. The deed for the depot grounds was recorded May 14, 1875, but the deed of release was not recorded until May 13, 1887. Lebanon street is sixty-six feet in width. In July and August, 1872, the railway company laid one track over and upon Lebanon street, east of the center line of said street, the center of the track being forty and six-tenths feet from the west line, and twenty-five and four-tenths from the east line, and was the only track laid the full length of the street until after the bringing of this suit, although in May, 1887, without the consent of plaintiff, the defendant laid a track in the street between the one mentioned and plaintiff’s premises, commencing at Sixth street and extending south about three hundred and six and eight-tenths feet, and used said track for standing cars and switching purposes until June, 1892, when it was made one of the main tracks of the railway. An action is now pending to recover damages for the alleged wrongful laying of said track, upon a claim that it interferes with the use of the street and with ingress to and egress from plaintiff’s said premises.

In April, 1892, the defendant having made preparations to lay a new and additional track on Lebanon street, between the original track and the premises of plaintiff, commencing at the south end of the track laid in 1887, and extending south on and over Lebanon street the full length in front of plaintiff’s premises, this action was commenced to enjoin the laying of the same for the reasons stated in the petition; a restraining order was refused by the common pleas court and by the circuit court on appeal. The defendant then laid the new and additional track, the east rail of which was six and one-half feet from the curb line, and the overhanging cars extending within four feet of the east curb line of the street. The width of the sidewalk had been reduced from thirteen to eight feet. The company has ever since and does now use. and maintain the new track as a part of its railway, and one of the main tracks thereof. Said track was laid without the consent and against the protest of plaintiff, and defendant has not in any way compensated plaintiff for the laying of the same, the interference with the use of the street and with ingress and egress to and from his premises, and the other incidental damages sntfered by plaintiff by the laying of the track. •

Stated in general terms, the contention of the plaintiff is that the laying of an additional track on Lebanon street imposes a burden upon his property for which he is entitled to compensation, and that, under the constitution and the decisions, this must be done before the taking; that the village council cannot prejudice his rights as an abutting owner, and that injunction is the proper remedy.

For the defendant it is contended that the ordinance gave full right to go upon the street and lay all necessary tracks for its road; that this track is necessary, and that the release by Applegate bars any claim by plaintiff both as to.damages and to injunction.

Respecting the rights in a street, of the municipality and the owner of lands abutting, there has been no modification, so far as we are aware, of the plain principle announced in Crawford v. Delaware Ohio St., 459, and followed in numberless cases since. In substance it is that the acquisition by a municipality, of land for a street, involves the right to put and maintain the street in suitable condition to answer all purposes of the acquisition, to which public right all private rights of lot owners are necessarily subordinated, while there remains in the owner of abutting land, inhering in the land and attaching to it, a private right in the street in the nature of an incorporeal hereditament, as much property as the land itself. The decisions referred to illustrate two ideas respecting the ownership of the street: the right of the public at large, as represented by the municipality, and the right of the owner of abutting lands. Whether the title of the municipality is acquired by grant, by common law dedication, or by appropriation, it is held in trust for the public, with the power of control, and accompanied with the duty of keeping open, in repair, and free from nuisance. The right of general use and enjoyment the adjoining owner possesses in common with the public at large, and that right may be affected by whatever the municipality may lawfully do or permit respecting the street. But his separate right, being a right of property, appurtenant to his land, can be taken or invaded only upon the terms of the constitution, viz.: that compensation shall be first made. And this principle controls the case at bar, and rules it in favor of the plaintiff, unless his rights are affected by the release of Applegate to the Cincinnati and Springfield Railway Company, of J une 20, 1872. Should it become necessary to construe this release then the provisions of the ordinance might be important as throwing’ light on its true interpretation, but unless this necessity arises it can hardly be contended that the ordinance plays any part in the controversy, for the right of the land owner, being of the character of private property, it follows that the village council had no power, by ordinance or otherwise, to bargain away, or impair, that right. And it is not important to consider the provisions of the ordinance with respect to the rights obtained by rhe company, as between itself and the public.

Nor is it necessary to discuss the effect of the release as between Applegate and the company unless it shall be found that the plaintiff is bound by its provisions notwithstanding it was not recorded until after he purchased and took possession of the land. The answer to this question depends upon whether or not, within the meaning of our statute, the plaintiff was (1) a bona fide purchaser, and (2) was without knowledge at the time of the purchase, of the prior conveyance. We understand that the term purchaser, as read in this connection, does not mean simply one who has taken title in any way other than by descent, but does mean one who is a buyer for a valuable consideration; and the transaction of purchase must have been a real and not a simulated one. No question was made below, or is made here in argument, that the plaintiff, in his dealing with Applegate by which he acquired title, was not a purchaser for value. The claim is, however, that he is not a bona fide purchaser with respect to the release of Applegate to the C. & S. Ry. Co., because, seeing the single track of the railroad in the street at the time, he was bound at his peril, to assume that the railway was there by virtue of some grant from Applegate, and that it was then his duty to inquire of the company, or of Applegate, or of both, as to the extent of the grant; that he is chargeable with all knowledge that inquiry would have elicited; that such inquiry would have informed him that the company had obtained from Applegate the right to lay what the ordinance permitted, to wit: its railway in the street, and- that meant as many tracks as might be necessary in the operation of the road.

The gist of this proposition is that the plaintiff although a purchaser for value, was not a purchaser in good faith within the meaning of the, statute. The statute in force at the time of plaintiff’s purchase, (1 S. & C., 467), provides : “That all other deeds and instruments of writing, for the conveyance or incumbrance of any lands, tenements, or hereditaments, executed agreeably to the foregoing provisions, shall be so recorded within six months from the date thereof; and if such deed or other instrument of writing, shall not be so recorded within the time herein prescribed, the same shall be deemed fraudulent, so far as relates to any subsequent bona fide purchaser having, at the time'of making such purchase, no knowledge of the existence of such former deed or other instrument of writing: Provided, that such deed or other instrument of writing, may be recorded after the expiration of the time herein prescribed, and from the date of such record shall be notice to any subsequent purchaser.” Plaintiff was a bona fide purchaser in the fullest sense unless he was bound to inquire. We think he was not. The pertinent rule is that which obtains in relation to commercial paper, as illustrated in Johnson v. Way, 27 Ohio St., 374, Kitchen v. Loudenback, 48 Ohio St., 177, and other cases, which applied here warrants the conclusion that when it appears that'the party ‘was a purchaser for value it is not a defense in support of a claim based on an unrecorded deed to show that he took title under circumstances which ought to have excited apprehension and inquiry in the mind of a prudent and reasonable man. No other view will give effect to the statute. Its words make absence of knowledge of the release at the time of the purchase the test; not absence of that which might induce inquiry. A holding which would substitute constructive notice, in the absence of a record, for actual knowledge, would clearly violate this statute. It appearing that the plaintiff was a purchaser for value, a presumption of want of knowledge of the release at the time of the purchase was raised, and he was entitled to the protection of the statute unless this presumption was overcome by evidence. The burden of showing such actual knowledge, therefore, was on the company. Morris v. Daniels, 35 Ohio St., 406. It offered no testimony from which such a fact may be inferred.

Plaintiff concedes that he was chargeable with knowledge of the railroad as it was built at the time of his purchase, and of the actual use then being made of the street by the company. And this is carrying the doctrine of presumption far enough. In no aspect of the case could he be bound to assume that the company had acquired the right to lay additional tracks. Had the company placed its release on record at the proper time, that, under the statute, would have been notice; having chosen to keep it off the record for more than six months and until after its grantor sold to a bona fide purchaser, the company cannot now be heard to assert that the title of that purchaser is impaired by its unrecorded release. The statute but adopts the principle of equity which holds that he, in consequence of whose negligence a fraud has been committed, shall sustain any resulting loss, and the rule is just, wise and salutary.

Upon the admitted facts the plaintiff was entitled to an injunction preventing the laying of the additional track, and is now, as matter of strict right, entitled to a mandatory injunction. However, in consideration of the fact that the courts below refused injunction, and that the track in controversy was not put down until after decision by the circuit court in favor of the company, and of the further fact that the traveling public would be more or less inconvenienced by a removal of the additional track, a reasonable time, to be specified in the journal entry, will be given the company to acquire from the plaintiff the right to maintain its track by a proceeding to appropriate, or by other proper means.

Judgment reversed and judgment for plaintiff in error.


author: Burket, J.

text:
    Hixson v. Burson et al.

      Constitutionality of an act determined by subject-matter and effect, not alone by form — Sectiow26, article %, constitution — Construction of highways by county commissioners — Unconstitulionality of act of May 16,1894, (91 Ohio Laws, 759.) — 85 Ohio State, 458 overruled — Constitutional law.

    1. Under section 26 of article 2 of the constitution, the constitutionality of an act is determined by the nature of its subject-matter, its operation and effect, and not alone by its form.
    2. The act of May 16, 1894, entitled, “An act to authorize the county commissioners to provide for the construction, improvement and repair of public highways,” 91 O. L., 759, is unconstitutional in this, that its subject-matter is general, while its operation and effect are local. The second syllabus of. State ex rel. Hibbs v. Commissioners of Franklin County 35 Ohio St., 458, is overruled.
    3. The act being unconstitutional, .the contemplated road improvement cannot be made lawful by a vote in favor thereof by the people to be affected thereby.
    (Decided April 28, 1896.)
    Error to the Circuit Court of Athens county.
    The action was commenced in the court of common pleas by plaintiff in error, who is a tax payer of said county, against the commissioners of Athens county to enjoin them from making and executing a contract for the sale of certain road improvement bonds, and from levying a tax to pay interest on such bonds, under an act of the general assembly, passed May 16, 1894, 91 O. L., 759. The first and second sections of the act are as follows:
    “Section 1. Be it enacted by the Genmxil Assembly of the State of Ohio, That the county commissioners of any county which by the last federal census had, or which at any subsequent federal census may have a population of not less than thirty-five thousand one hundred and ninety (35,190) and not to exceed thirty-five thousand and two hundred (35,200) when they become satisfied that the public interest of their county demands and justifies special action for the improvement of the roads therein, are hereby authorized and empowered to construct free turnpike roads over the principal thoroughfares of such county, beginning at and leading from such eligible points as may by them be deemed proper, and running by such direct and eligible route as they may find best for the public convenience, and terminating at any point within or at the county line; but they are not authorized or required to construct any such road within the corporate limits of the town or city where the county seat is located, when according to the last federal census, more than one thousand (1,000) inhabitants are contained in such corporate limits.
    “Section 2. Said county commissioners are hereby authorized and empowered to call to their assistance a competent surveyor or civil engineer, or both, at their discretion, with the necessary proper assistance, and to lay out, survey and locate such turnpike road or roads through or upon any improved or unimproved lands on the best route between the points of beginning and termination, and to obtain the right of way by grant, or take propositions for the purpose from the owners of land over which the road will pass.”
    The act required the question of constructing such roads to be submitted to a vote at any general or special election, and provides that if a majority of the votes be against the policy of constructing such roads, the commissioners shall not assess any tax for that purpose, but that if a majority be found in favor of such construction, the commissioners may proceed to levy taxes, issue bonds, and make said improvement of roads. By the sixth section, the amount of bonds to be issued is limited to three hundred thousand dollars.
    The vote was taken at 'the general election in November, 1894, a separate ballot box being- provided for that purpose, and a majority of the votes cast upon the subject of pikes, was in favor of the construction of such free turnpikes, but the votes cast in favor of such free turnpikes, was not a majority of the votes cast at that election for secretary of state.
    The commissioners regarded a majority of the votes cast upon the turnpike, question as sufficient, and proceeded to advertise for bids for the purchase of one' hundred thousand dollars of bonds under said act.
    The prosecuting- attorney having refused, upon request by a tax payer, to bring an action to enjoin the sale of such bonds, this action was' brought'by such tax payer, before the date fixed for the sale of the bonds, and a temporary injunction was allowed. The petition sets out the number of votes for and against such free turnpikes, and the number of votes cast at that election in said county for secretary of state, and claims that as the votes cast in favor of such pikes. was less than, a majority of all the votes cast at that election for secretary of state, that the proposition for such free turnpikes was not carried, and also claims that the act is not constitutional.
    The defendants below, also defendants in error here, demurred to the petition, and the demurrer was sustained, and plaintiff not desiring to further plead, the action was dismissed by the court, and judgment rendered against the plaintiff for costs.
    Upon petition in error, the circuit court affirmed the judgment of the common pleas.
    Thereupon a petition in error was filed in this court, seeking to reverse the judgments of both courts below.

      L. M. Jeioett and A. M. Zetvis, for plaintiff in error.
    Two questions arise in this case:

      First — As to the constitutionality of the “Act of the general assembly of the state of Ohio,” passed May 16, 1894, 91 O. L., 759.

      Second — That the vote cast for the construction of said road was not a majority of all votes cast at the November (6) election of 1894, being the election at which the construction of the roads was submitted to the voters of Athens county, Ohio.
    1. We claim that the law in question is clearly unconstitutional and void. State v. Bargus, 53 Ohio St., 94; Field v. Commissioners, 36 Ohio St., 481.
    The court will take judicial notice that Athens is the only county in the state to which the provisions of this act can ever apply. - Sec. 26, Art. 2, Const, of 1851; State ex rel. 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. McGill v. State, 34 Ohio St., 228; Ohio ex rel. v. Covington et al.,29 Ohio St., 3; 21 Ohio St., 11; 29 Ohio St., 3; 34 Ohio St., 228; 38 Ohio St., 199; 43 Ohio St., 112; 46 Ohio St., 275; 47 Ohio St., 290; 49 Ohio St., 202; 50 Ohio St., 103; 1 C. C., 355; Life Insurance Co. v. Pleasant Township, Ohio Legal News, January 11, 1893, 218.

      That the court will take judicial notice that the law applies only to Athens county, see State v. Constantine, 42 Ohio St., 444.
    The constitutionality of a law depends upon its effect and not its form. State v. Hipps, 38 Ohio St., 199; 3 Am. & Eng. Ency. of Law, 697; Kelly v. State, 6 Ohio St., 269.
    The constitutional provision that all laws of a general nature shall have a uniform operation is mandatory and not directory, and a statute in violation of it is void. Ex parte Falk, 42 Ohio St., 638; State ex rel. v. Ellet, 47 Ohio St., 90; Kenton v. State ex rel., 52 Ohio St., 59.
    The rules governing the interpretation of constitutions and statute are well stated in Smith’s Constitutional Construction, p. 692, see. 481; Potters Dwarris Stat. and Cons., sec. 654; Sedgwick on Stat. Const. Law,' 2d Ed., p. 404.
    2. Where a proposition is to be voted for at a general election and the authority under which it is submitted, statutory or constitutional, requires a majority of the voters voting at such election to adopt it. It is not sufficient that it receive a majority of the votes cast for or against the proposition; it must receive a majority of all the votes cast at such election. State v. Lancaster County, 6 Neb., 474; The People v. Brown, 11 Ill., 479; People v. Wiant, 48 Ill., 263; Everett v. Smith, 22 Minn., 53; Taylor v. Taylor, 10 Minn. 107; Baird v. Klings, 16 Minn., 249; State ex rel. v. Babcock, Aud., 17 Neb., 195; The Wisconsin Cases, 20 Wis., 572 ; 28 Wis., 358, 45 Wis., 479; 17 Neb., 194; McCreary on Elections, 3 Ed., sec. 173; Omaha v. Beecher, 22 N. W., 37.
    The question has been settled in Ohio. Engart
      v. Trustees, 25 Ohio St., 618; State ex rel. v. Foraker, 46 Ohio St., 677.
    And the supreme court of the United States in St. Joseph Township v. Rogers, 16 Wall., 664; People v. Warfield, 20 Ill., 163; People v. Garner,

    47 Ill., 246; Railroad Co. v. Dandson, 1 Snead, 292; Amgell & Ames on Corp., 9th Ed., secs. 499, 500; Bridgeport v. Railroad, 15 Conn., 475; Talbott v. Dent, 9 Ben Monroe, 526; State v. May r, 37 Miss., 270; County v. Johnson, 5 Ottawa, 369; McDowell v. Rutterford, N. ., 2 S. E. Rep., 351; State v. Constantine, 42 Ohio St., 437; State v. Swift, 69 Ind., 532.
    TPÍ?oí2 efe TFóoíi, Grosvernor, Jones c& Worstell and Sleeper, Sayre & Davis, for defendants in error.
    Two questions are presented by the record in this case:

      First — Is the act of May 16, 1894 (vol. 91 O. L., 759-60) constitutional?

      Second — Did the question of constructing a free turnpike receive a majority of the votes east, as provided by this state?
    1. The law is assailed as being in contravention of Article II, Section 26 of the Constitution of Ohio, which provides that “All.laws of a general nature shall have a uniform operation throughout the state.”
    The presumption is great in favor of the constitutionality of the law. State v. Kendle, 52 Ohio St., 355.
    But in considering the question we are not to forget the rule, that forbids the court from declaring an act of the legislature invalid on the ground that,it violates the constitution; to do this the court must be clearly of the opinion that such is the case. As long as it has a reasonable doubt about it, the doubt should be resolved in favor of the'law and the judgment of the legislature. Railroads v. Com'rs of Clinton county, 1 O. S., 77; Bronson v. Oberlin, 41 O. S., 480; Lehman v. McBride., 15 O. S., 591; State ex rel. v. Cincinnati, 20 O. S., 33, 34; Walker v. Cincinnati, 21 O. S., 14 and 42; Western Union Tel. Co. v. Mayer, Treas., 28 O. S., 540.
    ■ The term “Law of a general nature” as employed in the constitution has not, as yet, received from this court an authoritative definition * * *
    “The annunciation of the principles that govern each case as it arises, is the better mode of arriving at its proper meaning and effect.” McGill v. State, 34 O. S., 238.
    Only laws of a general nature are prohibited by Article II, Section 26 of the constitution. Appropriate local laws are not prohibited, and have been upheld by the uniform decisions of this court. State ex rel. v. Covington, 29 O. S., 102; Crickett v. State, 18 O. S., 9, 22; State v. Judges, 21 O. S., 1; McGill v. State, 34 O. S., 228; State ex rel. v. Commissioners of Franklin County, 35 O. S., 458; State v. Pugh, 43 O. S., 98; Fox v. Fox, 24 O. S., 335; State ex rel. v. Shearer et al., 46 O. S., 275 and 282; State ex rel. v. Hoffman, 35 O. S., 435 and 443; State v. Brewster, 39 O. S., 653; Welker v. Potter et al., 18 O. S., 85 and 112; State v. Nelson, 52 O. S., 88; Driggs v. State, 52 O. S., 37; Root v. Board of Education. 52 O. S., 589-596-7-8; Board of Education v. McLandsborough, 36 O. S., 227; State v. Board of Education, 38 O. S., 3; State v. Kendle, 52 O. S., 346 and 355; Bowles v. State, 37 O. S., 35; Cass v. Dillon, 2 O. S., 617; Field v. Commissioners, 36 Ohio St., 476; sections 8047-8057, Revised Statutes; State ex rel. v. Cappeller, 39 O. S., 207; State ex rel.
      v. Turnpike Co., 37 O. S., 481; State v. Powers, 38 O. S., 62; State ex rel. v. Hawkins, 44 O. S., 98; Marmet v. State, 45 O. S., 63.
    In the light of these uniform decisions of this court, and of the subject matter of the act in question, it seems to us, that the act is purely of a local character. It affects the people of Athens county only. The people of the state generally have no interest whatever in our public highways except as a few may pass over them occasionally.
    II. The second proposition which plaintiff in error submits to this court to determine whether or not the courts below erred is in substance that at the election in which the question was submitted by the commissioners to the qualified voters of the county as to the policy of constructing roads by general tax, a majority of the votes east was not in favor of such policy. This claim is based upon the fact that while there were 3256 votes cast in favor of the proposition, which was a majority of the votes cast on the proposition, yet it appeared that the total number of votes for Secretary of State was 6732, and therefore the number of votes cast in favor of the proposition was not a majority of all the votes cast at the election. Our answer to this claim is:

      First — The election at which the proposition was submitted to the voters of the county was a special election called for that purpose, as authorized by section 3 of the act referred to in the petition, and therefore it was immaterial how many votes were cast for Secretary of State at an annual fall election held at the same time and place.

      Second — If this court should be of the opinion that there was no special election, but that the question was submitted at the annual fall election, then we claim the true construction of sections 4 and 5 of the act to be, that if a majority of, the votes cast on that question favor such policy, then the commissioners may assess a tax, etc.
    III. Should the court find that this was not a special election, but a part of the general election, still, we think the vote cast was sufficient to authorize the commissioners to’ proceed to build the pikes. . We claim that a majority of the votes cast on the proposition is what the statute means and not a majority of all the votes cast at the election. 20 Pacific Reporter, 523; 29 Kan., 36; 28 Wise., 358; 20 Wise., 544; 18 Law Bulletin, 61 and 301; Atlantic Reporter, 72; 95 U. S., 369; L. Snead, 638; 15 Kan., 500; 2 Burrows, 1017; 50 N. Y., 461; 16 Barb., 370; 16 Wall., 644; 20 Ill., 163; 48 Ill., 263.
   Burket, J.

The plaintiff in error, also plaintiff below, urges that the proposition for free turnpikes was not carried at the general election in November, 1894, for the reason that while the votes in favor of the proposition exceeded those against it, the votes in favor of it were less than a majority of the votes cast for secretary of state at that election.

The usual rule in such eases is, that a majority of all the electors voting- at such general election for state, county or township officers, is required to carry the proposition. But the act in question seems, with sufficient clearness, to require only a majority of the votes cast upon the subject of free turnpikes to carry it; and as such majority was had in this case, the commissioners were authorized to proceed under the act, unless the act itself should be found to be unconstitutional.

It is urged that the act in question is in conflict with section 26 of article 2, of the constitution, which provides that, “All laws of a general nature shall have a uniform operation throughout the state.”

That the act is local, and has no operation outside of Athens county, is beyond question. While it is inform general, it is in its operation local, and might just as well have named, Athens county, by name, as to have designated it by its population at the last federal census of not less than 35,190, and not more than 35,200. Fields v. Commissioners of Highland county, 36 Ohio St., 481. The constitutionality of an act, under said section 26, is determined by the nature of its subject matter, its operation and effect, and not by its form only. In form an act may be general, while in its operation and effect it is local. Kelley v. State, 6 Ohio St., 269; State v. The Judges, 21 Ohio St., 1.

The legislative power of the state is vested in the general assembly without limitation, by section one, of article two, of the constitution, and the limitations upon that power are found in other sections of the same instrument. By that section full power is granted to pass local and special laws, and that power exists in all cases, unless limited by some other part of the constitution. By section 28 of the same article, the power to legislate by local or special laws as to correcting errors, omissions and defects in instruments and proceedings, is taken away.

By section two, of article twelve, the power to pass special laws as to the taxation of property is taken away. By section one, of article thirteen, the power to pass special laws conferring corporate power is taken away. By section two of the same article, the power to form corporations by local or special laws, is taken away. And by section six of the same article, the power to organize cities and villages by local or special laws is taken away. The legislation as to these named subjects, is required to be by general laws, and then the power of local and special legislation is further limited by this broad and comprehenive provision In section 26, of article two, requiring all laws of a general nature to have a uniform operation throughout the state.

The case of Kelley v. State, 6 Ohio St., 269, does not hold, as is urged, that no general rule as to the scope and force of this section can be laid down by this court. On the contrary, the court in that case does lay down a rule as to the construction of this section, but says that it does not undertake to discriminate nicely,-or define with precision. The court, through Scott, J., says: “Fe have then in the constitution, first, a general unqualified positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general nature, or, in its affirmative terms, requiring that a uniform operation throughout the state shall be given to all laws of a general nature. Without undertaking to discriminate nicely, or define with precision, it may be said that the character of a law, as general or local, depends on the character of its subject matter. If that be of a general nature, existing throughout the state, in every county, a subject matter in which all the citizens have a common interest, * * * then the laws which relate to and regulate it, are laws of a general nature, and, by virtue of the prohibition referred to, must have a uniform operation throughout the state.”

Time and. changed conditions may make it necessary to enlarge and extend the construction of the scope of section 26 of the second article of the constitution, hut it is certainly safe to say now that every subject of legislation is either of a general nature on the one hand, or local or special on the other. It can not be in its nature both general and special, because the two are inconsistent. If it is of a general nature, the constitution requires that all laws — not some laws — on that subject shall have a uniform operation throughout the state.

But how are we to determine whether a given subject is of a general natüre? One way is this: if the subject does or may exist in, and affect the people of,, every county, in the state, it is of a general nature. On the contrary, if the subject cannot exist in, r affect the people of every county, it is local, or special. A subject matter of such general nature can be regulated and legislated upon by general laws having a uniform operation throughout the state, and a subject matter which cannot exist in, or affect the people of every county, can not be regulated by general laws having a uniform operation throughout the state, because a bw can not operate where there can be no subject matter to be operated upon.

So that practically this section of the constitution means that the legislation on a subject to which, in its nature, laws having a unform operation throughout the state can be made applicable, must be by statutes having such uniform operation, and can not be. by local or special acts. The subject of the statute being of a general nature, all laws without exception as to such subject, must have a uniform operation. The constitution makes no exception, and the courts can make none.

The evident intention was, to restrict local and special legislation to such subjects as are in their nature not general, so as to-compel as near as possible, uniformity of laws throughout the state. Another object of this restriction was to induce each member of the general assembly to employ his time, knowledge and skill in passing good laws for the whole people of the state, and to prevent the exchange of courtesies with his fellow members for the passage of local or special laws for the benefit of a favored few.

With legislation thus limited to general laws, it was thought that one session of the general assembly in two years would be ample, and therefore, provision was made for only biennial sessions.

There were many other considerations for thus providing for general legislation, some of which have been pointed out by this court in the following cases: Lehman v. McBride, 15 Ohio St., 591; McGill v. State, 34 Ohio St., 228; State ex rel v. Ellet, 47 Ohio St., 90; Cass v. Dillon, 2 Ohio St., 617; State v. Nelson, 52 Ohio St., 88; Falk ex parte, 42 Ohio St., 638; State ex rel v. Bargus, 53 Ohio St., 94.

The case of Kenton v. State, 52 Ohio St., 59, and other like cases throw but little light upon the question here involved, for the • reason that in those eases the additional doctrine of classification of cities and villages is involved, a doctrine which has nearly wiped out .the limitation as to general laws in section six of article thirteen of the constitution and which should itself be overruled, so as to enable us to get back to the wholesome provisions of that section. But the doctrine of classification of cities and villages, as heretofore upheld, has been applied only to their organization and has not been, and can not be, applied to subjects in such cities which are of a general nature, and require laws of a uniform operation throughout the state. Cincinnati v. Steinkamp, 54 Ohio St., 284.

The attempted limitation of the scope of section 26, of article two, in some of the cases cited, is too narrow; notably is this true of the cases of McGill v. State, and Cass v. Dillon, supra.

. Is the subject of roads and highways, under that section of the constitution, of a local or general nature?

That the subject of roads and highways is capable of being legislated upon by general laws having a uniform operation throughout the state, is conclusively shown by the fact that such laws were passed at the second session of the general assembly after the adoption of the. constitution, and remain in force in substantially the same form to this day, and no local or special act on the subject of roads was passed for many years' thereafter.

The subject of roads is of so general a nature, that by section 19 of the Bill of Rights it is placed alongside of “a time of war, and other public exigencies,” and it is provided that private property may be taken for the purpose of making and repairing roads, without first making compensation therefor; while in all other cases of taking private property for public use, it must be first paid for in money, or secured by a deposit of money. In taking private property for the making and repairing of roads, the officers invoke the power of eminent domain, one of the highest attributes of sovereignty, a power which can not be invoked for a private, but only for a public use. Roads and highways are laid out, surveyed, located, constructed and kept in repair at the expense of the public and for the free use of the public. Without them all public business would be crippled, trade and commerce would be ruined, and it would be impracticable to reach our churches and public schools.

In the case of Grove v. Leidy, 9 C. C. Rep., 272, the subject of roads was held to be of a general nature, requiring legislation having a unifoim operation throughout the state, and that case was affirmed by this court in the case of Leidy v. Grove, 53 Ohio St., 662.

There is another consideration. To hold the subject of roads to be of a general nature requiring laws of uniform operation throughout the state, would make it the interest of all to secure the passage of the best possible system of general road laws. ;

Such laws could be amended from time to time as experience might suggest, and but little time need be taken to consider and pass such amendments. But regarding the subject of roads as of a local nature, each locality would be interested in some local scheme of road laws, to the exclusion of the general road laws of the state. Under such local system each member of the general assembly, instead of bettering the general road laws of the .state, would find more incentive to secure the passage of local acts affecting his immediate constituents or county, or some township, or particular road; and a member having succeeded in obtaining all the local road laws required by his section, would feel but little interest in securing road legislation for other parts of the state, unless thereby he could get a return of favors for some other local measure in which he .might take a special interest. But general legislation would induce each member to be vigilant in the service of the whole people, because thereby he could best serve his own constituents.

From these considerations, it is clear that the subject of roads is of a general nature, and that it is not only capable of being, but ought to be, legislated upon by general laws having a uniform operation throughout the state. The -limitations in said section twenty-six, exclude local and special legislation as to roads, and all such legislation is necessarily unconstitutional.

This conclusion has been reached after mature deliberation, and we might say with regret, as it involves the overruling of the second syllabus of the ease of State ex rel Hibbs v. Commissioners of Franklin county, 35 Ohio St., 458. With the highest regard for the eminent jurist who wrote the opinion in that case, and the able judges who then composed the court, we tried to reconcile that case with the provisions of the constitution, but were unable to do so, and we therefore reluctantly overrule the second syllabus. It seems so clear that the subject of roads is of a general nature, that we would be doing violence to our oaths to hold otherwise. The oath of a judge is to support the constitution, and he takes no oath to follow former decisions.

As the act in question taxes the whole county, including the county seat,' for road purposes, but prohibits any of the money from being expended upon the roads within the' county seat, it seems to be in conflict with section two of article one of the constitution, which provides that, “All political power is inherent in the people. Government is instituted for their equal protection and benefit. But as this point was not presented by counsel in their briefs, it is left undecided.

But it is urged, that a majority of those voting on the subject, voted in favor of the improvement of the roads in Athens county under this act, and that the majority should rule. The answer is, that the majority must rule inside of the provision of the constitution, and the act being unconstitutional, the vote could not make that lawful, which under the constitution is unlawful. To vote in favor of, or petition for an improvement under an unconstitutional act, can not give .validity to such an act,- so as to bind those who do not vote or petition for such improvement.

The judgment of the circuit court, as well as the judgment of the court of common pleas, is reversed, and the cause is remanded to the court of common pleas, with instructions to overrule the demurrer to the petition, and for further proceedings in accordance with this opinion.

Judgment reversed and cause remanded.