author: Price, J.

text:
    The City of Columbus v. The Columbus Gas Company.

      Municipal ordinance — Granting right to gas company to operate in city — Company to pay annual stipend to city for benefit of gas fund, etc. — Valid—Upon acceptance becomes contract — Grant not exclusive — City authorizes second company to operate— Contract with first company not vitiated — Municipal corporations — C ontracts.

    1. Where a municipal corporation by an ordinance passed by its council grants to a gas company the right to lay its pipes and other appliances in the streets and other public places within the corporation, for the purpose of selling and distributing its gas for public and private use, such council may require the gas company to pay annually to such municipal corporation a reasonable sum to compensate for the city’s necessary supervision of the work as well after as during its installation; and when the gas company accepts the terms of said ordinance according to law, and takes possession of and occupies the streets, et cetera, under-said grant, such accepted ordinance becomes a valid contract between the parties for the annual payment of said sum. The clause in the ordinance here involved that said payments are “for the benefit of the gas and light fund of said city” does not render the ordinance invalid as a means to raise general' revenue, said clause being subordinate to the principal obligation.
    2. That the municipal authorities, subsequent to the grant to the defendant company, gave permission to one or more other gas • companies to lay pipes in the streets and other public places within the corporation for the purpose of selling and distributing gas for public and private use, constitutes no defense to an action to recover payments due under the provisions of the former ordinance, because:
    (а) The said former ordinance under which the defendant holds does not purport to give to defendant an exclusive right to the streets for the purposes of its business.
    (б) The latter part of section six of that ordinance provides “that nothing herein contained shall be construed as granting exclusive rights or privileges, or preventing any other company from furnishing gas to the citizens of said city of Columbus.”
    (No. 9758
    Decided May 7, 1907.)

      Error to the Circuit Court of Franklin County.
    On the 5th day of October, 1903, the City of Columbus filed its petition against the defendant in error, in the court of common pleas of Franklin county, to collect the sum of $8,000, alleged to be due the city from defendant in error, on account of the provisions of a certain ordinance passed by the council of said city, on the 27th day of June, 1892, whereby the Columbus Gas Light & Coke Company obtained a franchise to enter upon the streets, and other public ways and places of said city for the purpose of excavating in the same and laying gas pipes and putting in other necessary lines and appliances to convey and supply illuminating gas to the inhabitants of said city and others desiring to consume such gas.
    The petition alleges that said Columbus Gas Light & Coke Company, in'writing, accepted the provisions of said ordinance, in the manner prescribed by statute, and afterwards, in October, 1892, transferred and assigned all its rights and interest in the said privilege to the defendant in error, The Columbus Gas Company, by and with the consent of the city, and that said latter company is now operating under said privilege, and has enjoyed ever sipce such transfer was made, all the privileges and benefits given to the said Columbus Gas Light & Coke Company by said ordinance.
    A copy of the ordinance is attached to the petition. -The city further alleges that section five of said ordinance provides that the privileges conferred in section one were granted upon the condition that the said Columbus Gas Light' & Coke Company, its successors and assigns, shall annually pay to the City of Columbus for the benefit of the gas and light fund of said city, the sum of four thousand dollars, the first payment to be made when this ordinance took effect, and the others annually thereafter; and as a further consideration for the rights and privileges therein granted, the grantee company shall sell gas for and during the ten years next following the passage of the ordinance, at a price not exceeding one dollar and ten cents per thousand cubic feet, and that from the above-named price a discount at the rate of ten cents per thousand feet shall be made on all bills paid on or before the fifteenth day of each month for gas consumed during the preceding month, making the net price not to exceed one dollar per thousand feet; the gas to be so furnished shall be of at least sixteen candle power.
    Ten annual payments were made in advance, as required by said ordinance, by The Columbus Gas Light & Coke Company, and its successor, The Columbus Gas Company, the last payment having been made by the latter company on July 8, 1901, which was to pay, and did pay, for the year beginning July 1, 1901, and ending June 30, 1902. No further payments have been made, although there was due, when suit was brought, the sum of $4,000 páyable July 1, 1902 and $4,000 payable July 1, 1903. ' _
    _ It is further alleged that defendant is still exercising all the privileges conferred by said ordinance and is furnishing gas to the citizens of Columbus at the price originally fixed, the city council having made no change in the rate to be charged. The city wants judgment for the amount so alleged to be due, with interest.

      The defendant answered at great length, the material points of which are, that The Columbus Gas Light .& Coke Company, assignor of defendant, The Columbus Gas Company, was incorporated about the 21st of February, 1846, under the laws of Ohio, for the purpose of manufacturing, selling and distributing artificial gas to the city and its inhabitants, and that thereafter, about the 14th day of-May, 1850, the said city passed an ordinance to provide for the lighting of the city with gas, and thereb}r vested in the -said Columbus Gas Light & Coke Company, its sucessors and assigns, the full and exclusive privilege of using the streets, lanes, commons and other public grounds for the purpose of conveying gas to the city and its citizens, with exclusive authority to open and use the said public ways and grounds for the introduction of pipes and other apparatus for gas, from the date thereof to and including the 21st pf February, 1866,. and thereafter fixed the price of gas from time to time, which defendant’s predecessor should charge its customers for gas furnished down to and including said ordinance, of 1892, and in each of said ordi-nances renewed, or again gave consent to the use and occupancy of said streets, etc.
    The defendant further avers that said consent when once given by the city exhausted its power to further grant or give consent, and it became co-extensive with the occupancy and use of the streets, etc.., by The Gas Light & Coke Company, and that the giving of said consent, or the granting of said privileges by said ordinance of 1892 was superfluous and unnecessary, and defendant charges that said streets have been occupied by defendant and its predecessor for said purposes since the year 1850; and that in October, 1892, The Columbus Gas Light & Coke Company sold, conveyed and assigned all its rights, interests and privileges in,, by and under said ordinances to defendant, which was done with the consent of said city,' and that said Gas Light & Coke Company at the same time sold and conveyed to defendant all its property-entire plant, including the pipes laid in said streets, etc. And further, that defendant acquired the right to exercise said privileges by virtue óf said ordinance of May 14, 1850, and denies that it acquired the right to exercise said privileges under said ordinance of 1892, or that it has for more than ten years exercised said privileges under said ordinance of 1892. Said ordinance of 1892 is of no force and effect, except as to the fixing the price of gas to be charged and collected by it, until such time as the city shall fix another or different price.
    It is further said in the answer that the said sum of $4,000 to be paid annually by the defendant as successor of The Columbus Gas Light & Coke Company to the city, as required by the ordinance of 1892, is and was a sum of money exacted for the purpose of general revenue for said city and for no other, and was, and will be, if collected, used by the city as such revenue, and applied to the purposes to which revenues of said city obtained through the ordinary system of taxation are, and have been, applied, and was a tax upon defendant, and its business, for the purpose of securing such revenue for the city; that said gas and light fund is provided by said city for the payment of light' furnished the city, and the same is maintained through a system of taxation'and is. part of the city’s general fund.

      The defendant next says the city has never appointed a measurer or inspector of gas, or gas' meters, at any time, and that at the time of the passage of said ordinance of 1892 there was no such officer or gas inspector in said city, and that the city has been at no expense on account of inspection or supervision of defendant’s gas and meters, and said sum of $4,000 was not exacted for any purpose of regulation.
    The defendant also says that on August 10» 1896, the city, without defendant’s knowledge or consent, passed an ordinance transferring said annual payment of $4,000 to the general expense account or fund of the city, and that thereafter all annual payments were placed in said fund, which is maintained through revenue derived from taxation, and therefore the exacting of said payments from defendant is without legal authority, and defendant is not under obligation to pay the same — that said agreement to pay said annual sums is without consideration, contrary to law and against public policy, and therefore void.
    A second defense is interposed to the effect, that the city well knew, when it passed- the ordinance of 1892, the only means the defendant had for the payment of said $4,000 annually was its receipts and income derived from the consumption of gas by the plaintiff and private consumers of gas, and that defendant would have to rely upon said receipts to enable it to pay the same, and knowing all this the city permitted The Federal Gas & Fuel Company to occupy and use the streets, and other public grounds, for the purpose of laying pipes therein and conveying and distributing natural gas to said city and its inhabitants, to be used for illuinitiating purposes, without requiring it to pay anything therefor to said city, which permission was given by ordinances passed May 22; 1889, July 31, 1889, and April 3, 1900, respectively.
    It is then alleged that natural gas can be furnished to consumers at a much lower price and at' much larger profit than the artificial gas of defendant; and that said ordinances for natural gas provided that said Federal Gas & Fuel Company should pay annually to the city for general expense fund, ten per cent, of all moneys received from sale of natural gas sold at a price exceeding fifteen cents per one thousand cubic feet, and that said company sold its natural gas at fifteen cents per thousand cubic feet, and so was not required to pay anything to the city.
    Also, that in February, 1889, The Central Ohio Natural Gas & Fuel Company secured the right to occupy said streets and other public grounds and lay pipes to distribute its natural gas for public and private use, and that on or about July —, 1901, said company laid its pipes and was furnishing gas to the city and its inhabitants, and its price was fixed at thirty-five cents per thousand cubic feet, with a discount for prompt payment.
    The defendant says that when said ordinance of 1892 was passed, natural gas had not then been used, believed or known to be suitable for illuminating purposes, and it did not come into general use for that purpose until about the year 1896 or 1897; that on account of the rights and privileges conferred by the city on said two natural gas companies, the defendant was unable to retain its trade and consumers, and was thereby deprived of the means to pay said annual payments.

      The reply admits that the payments made by defendant the past four years were placed to the credit of the general expense fund of the city, and that this fund is maintained by revenue derived from a system of-taxation and proceeds of bonds sold; and admits the privileges obtained by the two natural gas companies, and that part of their gas is used for illuminating purposes, and that the city, in 1901, fixed by ordinance the price of natural gas delivered to the city and its inhabitants, and that natural gas had not come into general use for illuminating purposes when the ordinance of 1892 was passed. • .
    The parties waived a jury and the cause was heard by the court, who found and rendered judgment for the defendant. This judgment was affirmed by. the circuit court.

      Mr. George S. Marshall; Mr. Edgar L. Weinland and Mr. Fred R. Hoover, for plaintiff, in error.
    We recognize the fundamental principle underlying municipal powers, viz.: that municipalities have only such powers as are expressly conferred by the state, together with such as are necessarily implied therefrom and such as are essential to the existence of the corporation.
    The express power to grant the franchise in question will scarcely be disputed by the defendant in error. The same statute which conferred it also in express terms gave the municipality the right to prescribe reasonable regulations under which the company might use the streets. Section 3550, Revised Statutes; City of Zanesville v. Telegraph & Telephone Co., 64 Ohio St., 67.

      The court will note .that Section 3461 does net so clearly in its express terms give the city the right to prescribe regulations under which a telegraph or telephone company may use the streets, as d'oes Section 3550 with respect to gas companies. It is further significant, we think, that Section 3550 contains no such stringent limitation as is found in the concluding sentence of 3461, the only limitation in the statute here under consideration being the single word “reasonable.”
    It follows, therefore, that the city has in Section 3550 thé right to prescribe as a condition to its grant any regulation whatsoever so long as it is reasonable.
    It is almost impossible to give a concise and comprehensive definition of the term “regulation.” For that reason we desire to call the court’s attention to a few of.the various subjects recognized by the courts and text writers as belonging under that head. Regulations of the character under consideration are under the police power which is inherent in the state and which it may delegate, in large part, to municipalities. Smith on Modern Law of Municipal Corporations, Section 1319; Booth on Street Railways, Section 220.
    This latter author in other sections of his work on street railways holds that' even after a franchise has been granted to a street railway company it is subject to reasonable regulations, such as a requirement to pay a license fee upon its cars, etc.
    To the same effect we desire to cite Railway Co. v. City of Philadelphia, 58 Pa. St., 119. This case was approved in Johnson et al. v. City of Philadelphia et al., 60 Pa. St., 445.
    To the same effect i§ the case of Railzvay Co. v.
      City of Philadelphia, 83 Pa. St., 429. This case was also affirmed in the 101 U. S., 528. To the same effect is Allerton v. City of Chicago, 6 Fed. Rep., 555; Gas Light & Coke Co. v. State, 18 Ohio St., 238; City of Zanesville v. Gas-Light Co., 47 Ohio St., 1.
    The broad scope of this police power of the state is too well recognized to call for any extended discussion of its application in Ohio. As bearing on the subject we note: State, ex rel., v. Gas Light & Coke Co., 34 Ohio St., 572; State, ex rel., v. Gas Light & Coke Co., 18 Ohio St., 262; Marmet v. State, 45 Ohio St., 63; City of Cincinnati v. Bryson, 15 Ohio, 625; Baker v. City of Cincinnati, 11 Ohio St., 534.
    The Pennsylvania courts uniformly, uphold the right of a city to require reasonable exactions from public service corporations, without express statutory authority therefor, but under the general police powers of municipalities. Telegraph Co. v. City of Philadelphia, 22 Weekly Notes of Cases, 39; Chester City v. Telegraph Co., 154 Pa. St., 465.
    The right of a municipal corporation to protect itself against the cost and expense incident to the granting of a franchise’ for the use of its streets is thus recognized by the United States Circuit Court of Appeals: City of Philadelphia v. Telegraph Co., 89 Fed. Rep., 454; Gas Co. v. City of Muncie, 160 Ind., 101; Dillon on Municipal Corporations, Section 706; Milhau et al. v. Sharp et al., 15 Barb., 193.
    Generally speaking, municipal corporations, as well as other public bodies, when acting through their proper agencies and in the line of their corporate powers and duties, are presumed to act in a lawful and regular manner. The principle is stated by McQuillan on Ordinances, Section 186.
    This court has held that as to assessments levied by municipalities on property, the presumption is in favor of their validity. Bolton v. City of Cleveland et al., 35 Ohio St., 319; Muhlenbrinck v. Commissioners, 42 N. J. L., 364, 368.
    It should be borne in mind constantly, that we are not dealing with the right and the extent of the power of the city to impose conditions upon a company having the right, either- under the statutes or under an existing franchise, to use the streets, but merely with the right of the city to agree with a company desiring to obtain the city’s consent to such use. City of Columbus v. Railway Co. et al., 2 C. C., N. S., 305.
    The amount charged is reasonable. The burden being upon the company resisting the payments to prove that they are unreasonable, it sought to do so by showing, and rested its case largely upon the fact that no officer had been specifically employed or designated as a “Gas Inspector” and that the city’s accounts did not show specific expenditures for such inspection.
    The record, however, does show that the necessary cost of such inspection and supervision, if carried on through a separate department established for that purpose, would be at least equal to the amount agreed upon. It was also shown that inspection would be needed to discover leakages and prevent dangers from explosions. The more we go into this feautre of the case, the more reasons we see why the city, not knowing what the future might bring forth, should ask the sum of $4,000.00 a year from the company. The presumption is that such sum is reasonable and the conditions existing in a growing city beat out that assumption. Telegraph-Cable Co. v. Borough of Taylor, 192 U. S., 64; Borough of North Braddock v. Telegraph Co., 11 Pa. Sup. Ct. Rep., 24; City of Allentown v. Telegraph Co., 148 Pa. St., 119; City of Philadelphia v. Telegraph Co., 102 Fed. Rep., 254.
    We submit that there was no testimony offered on behalf of the gas company showing the sum in question to be of that unreasonably excessive character which would warrant a court in prohibiting its collection. Telegraph Co. v. Borough of New Hope, 187 U. S., 419.
    As the company seems- to lay the greatest stress on its claim that the city has failed so to apply the payments in question, we will assume for the purpose of the argument such to be the fact. We ask wherein this is cause, of complaint for the company? If the city 'has diverted the money received, the remedy is apparent and always open. Injunction will lie to prevent further diversion of the funds and the city authorities' may be compelled by proper proceedings to apply the moneys to proper inspection and regulation uses. At all events, can the company be heard to say that because the city in the. past has failed in its duty to its citizens, therefore the company may refuse to perform its obligation under the contract? Two wrongs do not make one tight. Telegraph Co. v. Borough of New Hope, 187 U. S., 419; Borough of New Hope v. Telegraph-Cable Co., 202 Pa. St., 532; Borough of North Braddock v. Telegraph Co., 11 Pa. Sup. Ct., 24.
    It must be borne in mind that the annual charge in the case at bar was not imposed subsequently to, but was and is part and parcel of the franchise contract.
    If such requirement be of the kind which the legislature might empower the city to exact, then the company is estopped to set up want of power on the part of the city at the time of the franchise grant or to deny the reasonableness of the consideration to which it agreed. This is the well recognized doctrine of estoppel, and applies with especial force in this case where the company accepted the condition, and for ten years, without objection, made the annual payments required by the ordinance. Telegraph-Cable Co. v. City of Newport, 76 S. W. Rep., 159.
    The company is estopped by continuing to enjoy the franchise. The company sought to obtain from the city what it evidently believed was a valuable and highly 'profitable franchise. It acquired the right to use, and as the record shows, used and is using more than one hundred miles of the streets of the city. It made its own contract with the city as to the amount of compensation or reimbursement which-it should pay. It secured these valuable franchises only upon condition of such payment. It continues to this day to hold and enjoy the privileges secured to it under the franchise. Aside from the question, whether the city has the right under the enactments of the legislature to charge and collect such compensation, there can be no dispute as-to the power of the legislature to authorize the city so to do. There is nothing in the nature of such a charge that could be construed as contrary to public policy, and it is certainly not expressly df impliedly prohibited by statute. City of Columbus

      v. Gas Co., 2 N. P., N. S., 37; Gas Co. v. City of Muncie, 160 Ind., 97; Board of Agriculture v. Railway Co., 47 Ind., 407; Sturgeon et al. v. Commissioners, 65 Ind., 302; Poock et al. v. Building Association, 71 Ind., 357; Bicknell, Admx. v. Township, 73 Ind., 501; Railway Co. v. Flanagan, 113 Ind., 488; Wright et al. v. Hughes, Assignee, et al., 119 Ind., 324; City of St. Louis v. Davidson et al., 102 Mo., 149; Page on Contracts, Section 1054; Middleton et al. v. State ex rel., 120 Ind., 166; Deering & Co. v. Peterson et al., 75 Minn., 118; Mayor, etc., v. Harrison et al., 30 N. J. L., 73; City of Buffalo v. Balcom et al., 134 N. Y., 532; Mayor, etc., v. Sonneborn, 113 N. Y., 423; Hendersonville v. Price, et al., 96 N. C., 423; City of Fergus Falls v. Hotel Co., 80 Minn., 165

      Messrs. De Witt & Hubbard, for defendant in error.
    1: The exaction of $4,000 annually was for the purpose of securing revenue only for said plaintiff. The terms of the ordinance provide, that it shall be paid to the benefit of the gas and light fund; The evidence is that the gas and light fund is a fund to pay for lighting the streets. There is no provision that it is for regulation or supervision.
    “An ordinance having no element of regulation, and showing on its face that the sole purpose of the city authorities in adopting it was to raise revenue is a tax ordinance.” State ex rel., v. Boyd, 63 Neb., 829.
    The use made by the city of the money it received fixes its character as revenue. Telegraph-Cable Co, v. Borough of Taylor, 192 U. S., 64.

      The regulations contemplatéd by Section 3550, Revised Statutes, were limited to the mode and manner of laying conductors of gas in the streets, etc. The exaction could not be for inspection because other sections of the Chapter 2, Revised Statutes, make other ample provision for inspection.
    2. The plaintiff in error had no power or authority to exact from the defendant in error the payment of any sum whatever as a police measure, or for regulation, inspection or revenue, as a consideration or condition for its consent to a gas company occupying its streets, etc. “A municipal authority has no power or authority except such as has been expressly.granted to it by the legislature or is clearly implied.” Village of Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Bloom v. City of Xenia, 32 Ohio St., 461; State ex rel. v. Gas Light & Coke Co., 18 Ohio St., 293; Cooley’s Const. Lim., 231; Beekman et al. v. Railroad Co., 153 N. Y., 144; 1 Dillon on Municipal Corporations, Section 89; Water Co. v. City of Los Angeles, 88 Fed. Rep., 720; Minturn v. Larue et al., 23 How., 435;
    Especially for thé purpose of revenue. Gas Light Co. v. City of Elmira, 2 Albany L. J., 392; Smith v. Gas Light Co., 12 How. Pr. Rep., 187; State v. Mayor, etc., 33 N. J. L., 280; Kip v. Mayor, etc., 2 Dutcher, 298; Adamson v. Railroad Co., 89 Hun, 261; Mayor, etc. v. Railroad Co., 32 N. Y., 261; Macklin et al. v. Telephone Co. et al., 1 C. C., N. S., 373.
    The city has no power to make this exaction for some future emergency that may or may not arise. City of Philadelphia v. Telegraph Co., 40 Fed. Rep., 615.
    3. The ordinance relied upon is void for that it is against public policy. Greenwood on Public Policy, rules 1, 2, 5, 6, 284; Crawford & Murray v. Wick, 18 Ohio St., 190; Richardson v. Crandall, 48 N. Y., 348; Atchison v. Mullen, 43 N. Y., 147; People v. Supervisors, 60 Hun, 328; Beekman et al. v. Railroad Co., 153 N. Y., 157.
    The tendency of contracts of this kind is bad. The main object of the legislature in granting the franchise right to use of the streets of a city is “the promotion of the public convenience and welfare.” State ex rel. v. Gas Light & Coke Co., 34 Ohio St., 580. The people are entitled to the benefit thereof, and any price or consideration for the consent of the municipal corporation by so much more do the people have to pay for gas in excess of a reasonable price.
    4. A municipality holds whatever interest it has in its streets in trust for the people for public use, and hence has no authority to use the trust property for its own benefit. Elster v. City of Springfield, 49 Ohio St., 96; 2 Dillon on Municipal Corporations, Section 671 \-City of Alton v. Transportation Co., 12 Ill., 38; 27 Am. & Eng. Ency. Law, 194; Perry on Trusts, Sections 129, 196, 209, 427, 432.
    5. A municipal corporation has no proprietary rights in its streets which it can sell or part with for a compensation, especially when the use contemplated is for the public benefit. City of Zanesville v. Telegraph & Telephone Co., 64 Ohio St., 67; Lewis on Eminent Domain, Section 119; Gas Light Co. v. Gas Co., 25 Conn., 19; Mayor, etc. v. Railroad Co., 32 N. Y., 261; State v. Mayor, etc., 33 N. J. L., 280; Barhite v. Telephone Co. et al.,
      63 N. Y. Supp., 659; Ghee v. Gas Co. et al., 158 N. Y., 510; Adamson v. Railroad Co., 89 Hun, 261.
    6. There was then no consideration to support the requirement to pay or promise to pay said $4,000. 1 Parsons on Contract, 427; Tiedeman on Commercial Paper, 1st Ed., Section 151; Daniels on Negotiable Instruments, Section 160; Chitty on Contracts, 5, 25, 26; Lord Loughborough in Myddleton v. Lord Kenyon, 2 Ves. Jr., 392; 30 Eng. Rep., 689; Swan’s Treatise, 12th Ed., 514, 517; 2 Kent’s Commentaries, 12th Ed., 463, star paging; Withers v. Ewing, 40 Ohio St., 400.
    The alleged consideration is an executory one, that is, it is not only a promise to give something immediately, but to give something at a future day. And equity estops the same rule as the' common law. Fry on Specific Performance, 45; Platt v. Maples, 19 La. Ann., 459; Paton v. Stewart, 78 Ill., 481; Butman et al. v. Porter, Exr., et al., 100 Mass., 337; Pomeroy on Specific Performance, 57; Miturn v. Seymour, 4 John’s Ch., 498; McIntire v. Hughes., 4 Bibb., 186; Dawson et al. v. Dawson et al., v Devereux Eq., 92, 99; Banks v. May’s Heirs., 3 A. K. Marshall, 435; Bibb v. Smith, 1 Dana, 580; Holland v. Hensley, 4 Ia., 222; Webb et al. v. Insurance Co., 10 Ill., 223; Wyatt v. Mayfield, 99 Ill, 577.
   Price, J.

We have yielded to the apparent necessity of setting forth in the statement of this case the issues made by the pleadings, believing that such statement will materially assist to an understanding of what may be said in this opinion. But as the rights, of the -parties are based on. the ordinance of June 27, 1892, .and the subsequent conduct and acts of the city and the defendant, wé will not dwell upon several averments of the answer, which do not aid in determining the paramount controversy. It will promote a clear' understanding of this controversy to examine two or more sections of said ordinance.

“Section 1. Be it ordained by the city council of the city of Columbus, Ohio, that the Columbus Gas Light and Coke Company, a corporation organized under the laws of Ohio, and its successors and assigns are hereby granted the privilege and invested with the right to use the streets, alleys, avenues, lanes, commons, bridges and public grounds of-the city of Columbus for the purpose of laying and maintaining pipes to be used for carrying gas for public and private use in buildings and manufacturing establishments, and otherwise of said city, together with the right to dig and excavate in all of said streets, alleys, avenues, lanes, commons and public grounds, for the purpose of laying and maintaining pipes and other appliances required to convey said gas to consumers thereof; provided, however, that the right to purchase the works of said company and all the appurtenances belonging thereto at any time during the existence of the rights and privileges conferred by this ordinance, is hereby reserved by said city of Columbus and is hereby secured to said city by said company, its successors or assigns.”

The second section provides for the manner of conducting the work of excavating in the. streets and other public grounds, and places restrictions against interfering with water pipes, drains, sewers, or other public or private works of the city, or the gas pipes of other companies. The third section required the relaying and replacing of all pavements, curbs, gutters, streets and alleys disturbed by the gas company, so as to. restore them to former condition. The fourth section binds the company to preserve and keep the city harmless from any damages or costs that may be incurred or happen to persons or property by reason or on account of anything done by the company under the provisions of the ordinance, and to defend at its own costs any suits brought against the city by persons or corporations, claiming damages on account of the erection or maintenance of the plant of' said company, etc.

The fifth sections provides:

“Section 5. The privilege conferred in section one (1) of this ordinance is granted upon the condition that the said Columbus Gas Light and Coke Company, its successors, or assigns, shall annually pay to the city of Columbus for the benefit of the gas and' light fund of said city the sum of four thousand dollars, the first payment to be made when this ordinance takes • effect and the others annually. thereafter; and as a further consideration for the rights and privileges- therein granted the Columbus Gas Light and Coke Company shall sell gas for and during the ten years next following the passage of this ordinance at a price not exceeding one dollar and ten cents ($1.10) per 1000 cubic feet, and that from the above named price a discount at the rate of ten cents per 1000 feet shall be made on all bills paid on or before the fifteenth day of each month for ga's consumed during the preceding month, making the net price not to exceed one dollar per 1000 feet. ' The gas to be furnished for the above price shall be of at least sixteen candle power, and the council of said city hereby reserves the right to enforce compliance with this specification.
“Section 6. When the said Columbus Gas Light and Coke Company shall file with the city clerk its assent in writing to the terms of this ordinance, the said ordinance and acceptance shall be treated and deemed, as a compliance with law, and the council shall not, for the term (10 years) aforesaid, by ordinance or otherwise, require said company, its successors or assigns, to furnish gas of sixteen (16) candle power at a lower price than that herein named; provided, that nothing herein contained shall be construed as granting exclusive rights or privileges, or preventing any other company from furnishing gas to the citizens of said city of Columbus.
“Section 7. The privileges granted by the provisions of this ordinance shall not be forfeited by a temporary failure to furnish gas, unless such failure is through the neglect or misconduct of said company, its successors or assigns.
“Section 8. This ordinance shall take effect from and after its passage and publication according to law.
“Passed Júne 27, 1892.”

The ordinance was signed by the president of the city council and attested by the cit)r clerk. On the 1st day of July, 1802, the company, by resolution of its board of directors, accepted the provisions of said ordinance in due form, and authorized and directed its president to file said acceptance in writing with the city clerk, all of which was done July 2, 1892.

The defendant company has enjoyed the rights and privileges conferred upon it by the above ordinance every since its acceptance by the company * and has paid ten annual payments as required by its terms. It refused to pay the amounts due July 1, 1902, and July 1, 1903, respectively, although still in the énjoyment of all the privileges and benefits of the contract as before. It hqs released or abandoned nothing which it gained by such contract. When brought into court to answer the demand for the payment of said sums, it urges several reasons why it should not respond to the terms of the obligation which it so long supposed was binding upon it. We have endeavored to extract from the answer and the arguments of counsel in its support the principal points of defense.

(1) It is said that because the predecessor of defendant, the Columbus Gas Light and Coke Company, obtained a right to occupy the streets and other public grounds of the city for the purpose of laying pipes and to sell and distribute gas to the city and its inhabitants in the year 1848 and again in 1850, there was no further grant necessary, and the authority of the city over the subject was exhausted and the grant under the ordinance of 1892 was neither necessary nor warranted, • except as to fix the price at which gas should be furnished. The argument in support of this point is vague and unsatisfactory. It can have no foundation in either fact or law, unless the right to so use the streets and public grounds is derived from a higher source than, and independent of municipal control. It was even claimed on oral argument that the gas company had its authority to occupy the public grounds of the 'city from the statute, and that the municipal authorities could only regulate the mode of use and the price to be charged for the gas. This erroneous view "may account for the entire foregoing proposition. We find nothing'in the statute to uphold the claim made. Section 3550, Revised Statutes, provides: “A company organized for the purpose of supplying gas for lighting the streets and public and private buildings of a city, village, town, or township, may manufacture, sell and furnish the gas required therein for such, or other purposes, and a company organized for the purpose of supplying the inhabitants of a city, village, town, or township with water may sell and furnish any quantity of water required therein for such or other purposes; and such companies may lay conductors for conducting gas or water through the streets, lands, alleys and .squares in such city, village, town, or township, with the consent of the municipal authorities of the -city, village or town, or with the consent of the trustees of the township, and under such reasonable regulations as they may prescribe.”

This section was enacted as an amendment to the former statute, April 17, 1867, 64 Ohio Laws, 255, and it is now Section 3550, Revised Statutes. The former provision so amended, required the consent of the municipal authorities to the laying of conductors of gas or water in the streets and public grounds of the municipality. This legislation authorized the municipal authorities to refuse the privilege of placing such pipes and appliances in the streets, etc., and without their consent no gas company can lawfully enter upon and occupy the streets for the purposes of its business. This was understood to be the law during times past, and must have been so understood by the defendant, as witness the several ordinances under which its predecessor operated, as also the ordinance in favor of defendant, which is now before us. The ordinance of 1850, and those passed before and. afterwards, so far as found in the record, were passed under favor of statutory authority similar to Section 3550, supra. In all of the them the grant of the use of the streets, etc., was found in the ordinances themselves. We are unable to adopt the theory advanced,- and still believe that the city council must be consulted and its consent obtained before -any gas company can occupy public highways and places, for the transaction -of its business. This view is perfectly consistent with the duties imposed by former Section 2640, Revised Statutes, now Section 28 of the Municipal Code, which provides that the council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public-grounds and bridges within the corporation and shall cause the same to be kept open and in repair and free ' from nuisance. Former ordinances re-. ferred to in the answer had run their course and had expired, and the gas company wanted and needed the ordinance of 1892, and without it the company had no right as against the. will of the council to longer continue its business in- the- streets and other public grounds. We deem this sufficient to answer the first point made in the defense.

(2) The answer makes the further claim that the said sum of $4,000 to be paid annually by the defendant as successor of the Columbus Gas Light and Coke Company to the city as required by said ordinance of 1892 was exacted by the city for the purpose of general revenue for said city and for no other purpose, and when collected was, and the sums now sued for, will be used, as such revenue, which should be raised by taxation, and therefore the sums so exacted are an additional tax upon defendant and its business, which is not authorized by law. To sustain this charge of inequality it is said that the ordinance provides that the annual payments shall be “for the benefit of the gas and light fund of said city,” which fund is created and maintained by taxation of property in the city; and that the city never appointed an inspector of gas, or gas-meters, and that when said ordinance of 1892 was passed the city had no such officer, and that the city has not at any time been at any expense on account of inspection or supervision of defendant’s gas, or gas-meters, and said annual payment was not exacted for any purpose of regulation.

As if to increase the enormity of the demands of the city, it is alleged (and it seems to be true) the city, in August, 1896, without defendant’s consent, by ordinance transferred said annual payments to the general expense fund of the city, which latter fund is maintained by a system of taxation. The defendant complains of having to make these annual payments which go into the general expense fund, because it is an exaction' in addition to the payment of its share of the general taxation to maintain said fund, and is an unlawful tax upon the company and its business.

This phase of the defense needs some analysis, inasmuch as it is argued that such facts show the obligation 'to make the annual payments is without consideration and contrary to law.

We have- observed that the gas company can establish its plant and system of pipes, etc., only with the consent of the city council, and we now say that a reasonable condition may be fixed for such consent. This is not prohibited by statute, and it is evident that the privilege and its fruits were of great value • to the company. Such system, or plant, consisted of a network of underground pipes, their connections and other fixtures, as well as surface attachments, absolutely necessary for the successful operation of the business of the company. Frequent excavations and repairs were inevitable, and new extensions of the system were required from time to time. The city being charged with the care and control of its streets and public places, became responsible to third parties for their safe condition, and hence an additional burden was cast upon the city to supervise and see that such safe condition prevailed, which increased responsibility was attended with additional expense, in order that the gas company might be compelled to keep its agreement of regulation, and in case of its neglect, to make the public places occupied by the company safe and free from nuisance.

In the contemplation of the parties to the ordinance contract, the sum of $4,000 per year was considered reasonable and it was so stipulated, and the presumption that it was reasonable must be indulged until it is overthrown. When the present ordinance was passed — 1892—the city had a brilliant future, which has been fully realized,for since that time it has moved forward. with rapid strides in both territory, manufacturing and commercial business, so that eighty miles or more of defendant’s gas pipe conductors with their fixtures are in the streets and other public places, and.it is folly to say that the supervision of all this system, costs the city nothing. It may not have an officer known as an inspector of gas and gas-meters, but it. appears that the duties of such a position fall upon other officers of the city, and it has'a right to be reimbursed. We think the facts in the record warrant this statement.

The city and the gas company, in closing the negotiations for the grant, agreed upon the amount which should be paid the city annually, either as a condition of the grant or as an indemnity to the city for the cost and expense of its supervision and care of the streets, and this sum was inserted in the ordinance and became one of its substantial parts and as such it has since continued, for we are not advised that any change or modification has been made by the only parties authorized to make it.

It might or might not cost the city four thousand dollars a year to supervise and exercise the proper control over the plant and conduct of the gas company. If it should cost more the company could not be compelled to pay more than the agreed amount. If less, the gas company has no right to change its stipulated liability to a scale of actual cost to the city. Nor has the company a right to' ask the court to whittle down its liability to the precise expense the city annually incurs by reason of the privileges the company enjoys in the use and occupancy of the streets and other public grounds. There is no prayer for the reformation of the contract on any ground.

The parties who were competent to make this contract in question, are competent to change it; but it is not for the court to .sanction repudiation by one party or make a new contract instead of the former.

It is true the ordinance says the annual payments are “for the benefit of the gas and light fund,” but the city is the contracting party, and if any one, by contract or otherwise, diverts the money so paid into a wrong fund the act can be corrected by proper proceedings. Such payments do not become general revenue of the city if it be illegal to so transfer them. Hence the clause “for the benefit of the gas and light fund” is not destructive of the company’s obligation.

The city auditor testified that the name “Gas Light Fund” was a mere ledger name in the method of keeping the city books and has no special significance. There is also considerable evidence in the record tending to prove the cost to the city of the supervision of the streets occupied by the company. Therefore it is not necessary to discuss the right of the city to raise general révenue by requiring these payments, a point so fully and ably argued in brief for defendant in error. It sufficiently appears in ■ the record that much, if not all, of these annual payments have directly or indirectly been used by the city for the legitimate purposes contemplated by the parties, and it is not compecent for the gas company to escape because the city authorities have not been judicious in the manner they expended the money. It may have been improperly mingled with the general revenues of the city; and if the contract or ordinance, accepted and yet relied on by the company,, gives countenance to a wrongful diversion of the payments, it can not repudiate its obligations on that account. It is charged with the duty of making the payments, but it is not charged with any responsibility for the proper disbursement of the same.

The answer avers that in 1896, the city council passed an ordinance transferring payments made by the gas company “to the general expense account fund of said city,” and that this was done without the knowledge or consent of the company, and that this particular fund is one raised by general taxation. Here again we have a supposed avenue of escape on the ground that the city committed a wrong in mixing the payments with a general expense fund. The knowledge or consent of the gas company, or their absence, in no sense affects the situation. If the ordinance complained of is illegal there is a way to ■ restore the money to its proper function, but the liability of the coriipany- can not be thus extinguished. We think this branch of the defense not good.

We do not deem it necessary to consider here the many authorities cited in the briefs of learned counsel. . They are collected in their proper place preceding this, opinion.

(3) The remaining defense is that when the ordinance of 1892 was passed, the city knew that the only means the defendant had for the payment of said annual payments was its receipts and income derived from the consumption and sale of gas to the city and private consuméis, and to meet these annual amounts, it would need to retain its then business; yet the city, having such knowledge, subsequently permitted the Federal Gas & Fuel Company to enter upon and occupy the streets and other places and lay pipes therein for the distribution and sale of natural gas as an illuminant to- the city and its inhabitants, which permission was given first in 1899. It is pleaded that natural gas could be and was thereby furnished at a much lower price and at a greater profit than artificial gas, which was being furnished by the defendant; and further, that the above natural gas company was not required to pay anything for the benefit of the general expense fund except the excess received for the gas above fifteen cents per cubic foot, and that no natural gas was sold by that company above that price, and therefore the city received nothing.

It is also complained that in February, 1899, the Central Ohio Natural Gas Company secured from the city' the right and privilege of piping said streets and other places for the purpose of conveying natural gas for public and private use, and that' in 1901 the latter company did lay its pipes and furnished natural gas to the city and its inhabitants, and that the city then fixed the price of natural gas at thirty-five cents per thousand cubic feet, with a discount for prompt payment.

It is alleged that when defendant obtained its contract of 1892, natural gas had not then been used, or believed to be suitable for illumin*ating purposes, and that it did not come into general use for such purposes until* about the year 1896 or 1897; and that by reason of the city giving the right to these companies to furnish the cheaper-gas the defendant was wholly unable to compete with them — was not able to retain its consumers and was thereby deprived of the means to make said annual payments, and that it would be “unconscionable and inequitable to require or compel the defendant” to pay said- annual sums, or to make any further payments thereof. The reply denied the alleged results of the acts of the city.

The court of common pleas heard evidence as to the loss or decline in defendant’s business after the natural gas companies were admitted to the field, but its finding for the company is general, and we are not advised by the record what weight such defense had with that court. And the judgment of the circuit court is a general affirmance.

If all that is said in this branch of the defense should be conceded, what, then, aré the rights of the parties?

The city did not violate the provisions of the ordinance of 1892 under which defendant holds, for it did not grant it the exclusive right to occupy the streets and furnish gas to. the city and fits inhabitants; and the statute (Section 3550, Revised Statutes) does not purport to grant, either directly or by permission of thé municipal authorities, an exclusive right to any one company to lay its conductors for conducting gas through the streets of a city, town, or village. This is held in The State, ex rel., v. The City of Hamilton, 47 Ohio St., 52, 70, 71. On page 71, it is said: “A gas company may open the streets and lay down its pipes with the consent of the city, under such reasonable regulations as the city may make; but the right to give such consent and prescribe such regulations does not carry with it a power to exclude every other gas company or to bar the municipality from ever using unoccupied portions of the streets for the same purposes. In State, ex rel., v. Cincinnati Gas Light & Coke Company, 18 Ohio St., 262, 289, the principle is stated, that to enable the city council to grant, by ordinance in the nature of a contract, an exclusive right to use the streets and alleys of the city for the. purpose of laying therein pipes for carrying gas to be used in lighting the city for a term of twenty-five years, the power must be shown' to have been expressly granted, or to be so far necessary to the proper execution of the powers which are expressly granted as to make its existence free from doubt. Grants by the public are to be strictly construed, and an intention to grant an exclusive privilege, or monopoly, is not to be implied. Where exclusive privileges are not expressly given by the charter they should not be held to be conferred.”

But if any one should doubt the soundness of the doctrine so advanced the ordinance itself should silence all cavil, for the last clause of section six thereof provides, “that nothing herein contained shall be so construed as granting exclusive rights or privileges, or preventing any other company from furnishing gas to the citizens of said city of Columbus.”

The defendant and its assignor, the Columbus Gas Light and Coke Company, under prior ordinances and the one under consideration have occupied and used many of the city streets and grounds for the .transaction of its business for over half a century, and when the last ordinance was passed ■ a.nd accepted, both the city and the company were facing the future, not knowing what it might unfold as to new means of furnishing light. The company was content with past profits, and would venture upon the unknown future. If its profits are now behind it, the city should not be tied to the destiny of the company and be obliged to exclude other gas and electric companies, to the great detriment of its inhabitants. What time has' developed, the company must be held to have contemplated.

In respect to the gas company, the contract may now be a hard one to comply with, but there are innumerable instances in business life where contracts of parties have become hard and unprofitable, 'yet the courts can not discharge from liability on that ground, for such risks were assumed when the contracts were made.

We find that the lower courts erred in their judgments, and perceiving no good reason to remand the case for another trial, we render final judgment for the sums mentioned in the petition.

Judgment reversed and judgment for plaintiff in error.

Shauck, C. J., Crew and Summers, JJ., concur..


source: Caselaw Access Project

author: Shauck, C. J.

license: Public Domain

text:
    Thomas et al. v. State of Ohio, ex rel. Gilbert, a Taxpayer. Gileillan et al. v. State of Ohio, ex rel. Seymour, Prosecuting Attorney.

      The court having affirmed validity of act — And subsequently decided act void — Authorizing certain public contracts — The contracting party is entitled to compensation for performance— Rendered before action challenging validity of law — Lazo of contract — Tax inquisitor contract.

    This court having affirmed the constitutional validity of a legislative act passed to authorize contracts for services to be rendered to the public, and such a contract having been entered into and services performed toward its execution, the party performing them is, notwithstanding our subsequent decision that the act is constitutionally void, entitled to receive the stipulated com' pensation for such services as he has performed before the filing of the petition in an action which challenges the validity of such contract, this court not having in the meantime qualified or overruled the decision upon which the party relied.
    (No. 9913
    Decided May 7, 1907.)
    Error to the Circuit Court of Montgomery County.
    ( No. 10158
    Decided May 7, 1907.)
    Error to the Circuit Court of Franklin County.
    The cases are stated in the opinion.

      Messrs. Doyle & Lewis; Messrs. Bosler & Emanuel; Messrs. Young & Young and Mr. I. H. Goeke, for James R. Thomas et al.

      Messrs. McMahon & McMahon; Messrs. Rowe & Shuey and Mr. O. M. Gottschall, for Phillip Gilbert.

      Mr. J. T. Holmes and Messrs. Dyer, Williams & Stouifer, for Bailey W. Gilfillan et al.

      Mr. F. C. Rector; Messrs. Huggins, Huggins & Johnson; Mr. A. T. Seymour and Mr. M. E. Thrailkill, for defendant in error.
    Brief of Mr. Doyle.

    The question now.before the court in this case and the Gilfillan case, does not involve the validity of the law, but the validity of the contracts made under it, and the interpretation of the law as applied to these contracts.
    The statement of law, made in State, ex rel., v. Cappeller, 39 Ohio St., 207, to the effect that “The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state, or any of its subordinate agencies with respect to part transactions.' It is designed to prevent retrospective legislation, injuriously affecting individuals, and thus protect vested rights from invasion,” was copied from the opinion of the Supreme Court of the United States in New Orleans v. Clark, 95 U. S., 654. Reiterated by this coprt in Burgett et al. v. Norris, Treas., 25 Ohio St., 308; Kumler v. Silsbee, 38 Ohio St., 445. And when this court, as it is now constituted, affirmed the judgment in State, ex rel., v. Gibson, Treas., et al., 71 Ohio St., 509, without report, it did so upon the doctrine thus announced.
    It is sufficient to say that in 1883, this court decided that the first inquisitor act, passed in ■ 1880, and which applied to Hamilton county alone, was on a subject-matter local and temporary in its nature, and not in conflict with Section 26, Article II of the Constitution, and so far as it was retrospective in its operation, not in conflict with Section 28 of Article II of the Constitution.
    The act which was thus held to be valid in 39 Ohio State was followed by the act of 1885. Section 1343a, et seq., is in almost the identical language, except that it was made applicable in all counties containing a city of the first class, or a city of the first grade of the second class, thus confining it to four counties in the state instead of one. And that was followed by the act of 1888, which we humbly admit applied to all the counties of the state except the four included in the act of 1885. State, ex rel., v. Crites, Auditor, 48 Ohio St., 142.
    We have the right to assume therefore that this legislation was declared valid by the highest court in the state and that the rights of the parties are protected by the act of May 9, 1902, and now given in Bates’ Annotated Statutes at Section 22&-I. If the subject of these statutes was one upon which the general assembly could not legislate. If the power granted was one that by any act the legislature could not grant, then we grant you that it could not make valid anything done under it's attempted grant. In other words, we are not unmindful of the decision of this court in Bartlett et al. v. State, 73 Ohio St., 54.
    The legislature says that if an act was declared to be legal and valid by the courts, and rights have accrued under it, such rights will be enforced notwithstanding the change in the decisions of the court, as against the state or one of its political sub-divisions.
    It is a declaration by the.state that it will not take advantage of a change in judicial decree, as against parties contracting with it, on the' faith of legislative -enactment having the endorsement of previous judicial decree.
    But we are not bound even to rely on the act of May 9, 1902. It seems to me that the law requires the same result independently of that act.. This court has many times declared the law substantially as it is declared in that act. Shoemaker et al. v. City of Cincinnati et al., 68 Ohio St., 603.
    We call attention to the opinion where the law classifying cities was repeatedly approved by this court, and quoting from . Judge . Spear: “remained the law of the state until the decisions involving the government of the cities of Toledo and Cleveland in State, ex rel., v. Jones et al., 66 Ohio St., 435, and State, ex rel., v. Beason et al., 66 Ohio St., 491.” You held the same thing in City of Cincinnati v. Taft et al., 63 Ohio St., 141. You decided it in Lewis, Auditor, v. Symmes et al., 61 Ohio. St., 471.
    It was affirmed by this court in City of Findlay v. Pendleton et al., 62 Ohio St., 89. It has been decided many times in the circuit court. Friedman v. City of Cincinnati et al., 13 Ohio Dec., 404; Bank et al. v. Trustees, 13 Ohio Dec., 472; City of Columbus v. Bohl et al., 13 Ohio Dec., 569. We need not consume time giving decisions of the Supreme Court of the United States. Douglass v. Pike County, 101 U. S., 677; City of Chicago v. Sheldon, 9 Wall., 50; Taylor v. City of Ypsilanti, 105 U. S., 72; Louisiana v. Pilsbury, 105 U. S., 295; City of Los Angeles v. Water Co., 177 U. S., 558; Wade v. Travis County, 174 U. S., 509; Anderson v. City of Santa Anna, 116 U. 5., 361; Havemeyer v. Iowa County 3 Wall., 294.

      Brief of Messrs. McMahon & McMahon.

    An unconstitutional act is a nullity. It confers no protection. It creates no rights or obligations. In legal contemplation it is as if it had never been passed. Norton v. Shelby County, 118 U. S., 426; City of Cleveland v. Construction Co., 67 Ohio St., 198.
    Furthermore, the citizen is charged with knowledge of the fact. He takes all the risks of action under the law. He can .not plead ignorance, nor ask protection by reason of the advice of counsel. This may be a hardship. But the exigency of government requires it. City of Findlay v. Pendleton, 62 Ohio St., 80; Miller et al. v. Flixon, Treas., 64 Ohio St., 40.
    It must be remembered that the classification in the two laws providing for inquisitors was by counties and not by .cities. It is true the counties in the older law are described as containing cities of a certain grade -and class: — but the legislation is for the counties and not the cities in the counties.
    The very same judges who decided the Grites case, 48 Ohio St., 142, held, one year later in the case of Costello v. Wyoming, 49 Ohio St., 202, that a law providing that in villages in any county containing a city of the first grade of the first class, the village council may construct.sidewalks, etc., was decided unconstitutional as not being of uniform operation throughout the state, and was not saved by the attempted classification by cities. Commissioners v. Rosche Bros., 50 Ohio St., 103; State, ex rel., v. Bargus et al., 53 Ohio St., 94; State, ex rel., v. Davis et al., 55 Ohio St., 15;
      Hixson v. Burson et al., 54 Ohio St., 470; Mott et al. v. Hubbard, Treas., et al., 59 Ohio St., 199; Silberman et al. v. Hay, 59 Ohio St., 582; State, ex rel., v. Brown et al., 60 Ohio St., 462.
    These decisions, all- concerning laws operating in counties or in cities in certain counties, are all against the contention of plaintiffs in error, that the trend of decision justified the making of the contracts' relied upon in this case.
    The consideration of the decisions where the doctrine of the classification of cities was invoked to save the law in question from the objection of want of uniformity would include the following: City of Cincinnati v. Steinkamp, Trustee, 54 Ohio St., 284; State, ex rel., v. Ketter et al., 65 Ohio St., 558; Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25; State, ex rel., v. Buckley et al., 60 Ohio St., 273; State, ex rel., v. Cowles et al., 64 Ohio St., 162; Fenner v. City of Cincinnati, 65 Ohio St., 567; Platt v. Craig et al., 66 Ohio St., 75; State, ex rel., v. Jones et al., 66 Ohio St., 453; State, ex rel., v. Beacom et al., 66 Ohio St., 491; State, ex rel., v. Yates, Treas., 66 Ohio St., 547; State, ex rel., v. Garver et al., 66 Ohio St., 555; State, ex rel., v. Spellmire et al., 67 Ohio St., 77; Pump v. Commissioners et al., 69 Ohio St., 448; Schumacher v. McCallip et al., 69 Ohio St., 500; State, ex rel., v. Lezvis, Auditor, 69 Ohio St., 202.
    Brief of Mr. Holmes and Messrs. Dyer, Williams & Stouifer.

    Gilfillan’s rights are protected by the act of May 9, 1902, 95 O. L., 444;'Bates’ Annotated Ohio Statutes, 5th Ed., Sec. 22&-1.

      It may be objected to by the act of 1902 that it is retroactive in its terms, and is therefore unconstitutional, as being in contravention of the provisions of Section 28, Article II of the Constitution of Ohio.
    While it is true that the act of May 9, 1902, is intended to have a retrospective effect, and is intended to operate upon past transactions by making valid and binding engagements which without its operation might not be operative or of controlling effect, or at least might be involved in doubt, yet this fact of itself does not make the law a retroactive law. The definition of Mr. Justice Story of a retroactive law is given in the case of The Society v. Wheeler, 2 Gallison’s R., 139, quoted with approval by this court in Rairden et al. v. Holden, Admr., 15 Ohio St., 207. This definition, upon first consideration, might seem .broad enough to include the statute we are now considering, but it must be limited and controlled by the operation of another principle, which is declared by Mr. Justice Field, in New Orleans v. Clark, 95 U. S., 644.
    This language, it seems to us, demonstrates clearly that it is entirely proper for the legislature by appropriate enactments to provide for the payment by the state, or any of its subordinate agencies, of claims, for the payment of which it may be morally or equitably bound, but concerning which there may be no legal liability. This language of Mr. Justice Field has been quoted with approval by this court in a number of cases. Kumler v. Silsbee, 38 Ohio St., 445; State, ex rel., Cappeller, 39 Ohio St., 207; Burgett et al. v. Norris, Treas., 25 Ohio St., 308; State, ex rel., v.
      Peters, 43 Ohio St., 629; Read v. City of Plattsmouth, 107 U. S., 568; Insurance Co. v. Commissioners, 106 Fed. Rep., 123; Hubbard, Treas., v. Fitzsimmons, 57 Ohio St., 436; State, ex rel., v. Commissioners, 17 Ohio St., 608; State, ex rel., v. Trustees, 20 Ohio St., 362; Board of Education, v. McLandsborough, 36 Ohio St., 227; State v. Board of Education, 38 Ohio St., 3; Commissioners v. Rosche Bros., 50 Ohio St., 113.
    The case of State, ex rel., v. Gibson, Treas, et al., 71 Ohio St., 509, affirming the decision of the circuit court *of Hamilton county, without report, is interesting. The decision of the circuit court is found at 4 C. C., N. S., 433, and the decision of the common pleas court is found at 2 N. P., N. S., 221.
    In the Gilfillan case, the equities are not even in doubt: When this contract was made, this court had held in the case of the State, ex rel., v. Cappeller, 39 Ohio St., 207, 215, that the subject of the employment of a person to assist the county auditor in bringing taxes upon the tax duplicate and to provide for the payment of a compensation for such services was subject-matter of a local and temporary nature; and a special act with reference thereto was valid, as established by prior decisions of this court. That decision' has stood unquestioned and unchallenged, and Gilfillan had a right to rely upon it.
    In the case of State, ex rel., v. Crites, Auditor, 48 Ohio St., 142, the act of April 10, 1888, providing for the securing of a fuller and better return of property, and authorizing the employment of a person to assist the county auditor was held to be a constitutional enactment, and a contract made pursuant to its provisions was held to be legal, and binding.
    There was nothing in the decision of State, ex rel., v. Buckley et al., 60 Ohio St., 273, that was notice to Gilfillan that the tax inquisitor statute was unconstitutional.
    This court, in the case of Bartlett et al. v. State, 73 Ohio St., 54, again had occasion fo consider the power of the general assembly to legislate with respect to matters affected by acts which had been declared to be unconstitutional. The particular legislation there under consideration was held to be unconstitutional, but the court in delivering its opinion, recognized the existence of powers in the general assembly, srfch as were exercised in the enactment of Section 22&-1.
    In the Bartlett case, the general assembly •undertook, by so-called general legislation, to declare that special legislation which had been enacted in violation of the constitution, should nevertheless “continue to be and remain, and be recognized and regarded as legal.”
    It was clearly ultra vires for the General Assembly to sit in judgment on the constitutionality of one of its own acts. The case does not touch the question at bar. The act now under consideration, does not undertake to say that the tax inquisitor acts shall continue as valid and binding legislation, but simply'declares in general terms that all vested rights that have been acquired by reason of acts done under laws which were held to be constitutional at the time the contracts or obligations were made, shall be protected, notwithstanding a change in judicial interpretation. Black on Constitutional Prohibitions, Section 216, page 273.

      The legislature may, by a curative act, validate contracts made ultra vires by municipal corporations. Lewis’ Sutherland, Statutory Construction, Sec. 675, pp. 1229, 1236; Steele County v. Erskine et al., 98 Fed. Rep., 215, affirming 87 Fed. Rep., 630, is also pertinent. Windsor v. City of Des Moines, 110 Ia., 175. The case of Schneck v. Citof Jeffersonville, 152 Ind., 204, is an instructive case. Marion County v. Railroad Co., 91 Ky., 388; Railroad Co. v. Bullitt County, 92 Ky., 280; Devers v. York City, 150 Pa. St., 208; Melick v. City of Williamsport, 162 Pa. St., 408; City of Chester v. Pennell, 169 Pa. St., 300:
    Mr. Gilfillan is entitled to receive from the county what he has earned under the contracts set forth in the petition below, regardless of the provisions of Section 22&-1.
    A change of judicial interpretation will not be permitted to operate retrospectively, and Gilfillan’s rights will be protected according to the law, as construed by the courts at the time his contracts were made. Lewis, Auditor v. Symmes et al., 61 Ohio St., 471; Douglass v. County of Pike, 101 U. S., 677; City of Findlay v. Pendleton et al., 62 Ohio St., 80; Bartlett et al. v. State, 73 Ohio St., 59.
    The Supreme Court of the United States has repeatedly declared it as a well settled principle of law, commencing with the case of Gelpcke v. City of Dubuque, 1 Wall., 175; Havemeyer v. Iowa County, 3 Wall., 294; Olcott v. Supervisors, 16 Wall., 478; Louisiana v. Pilsbury, 105 U. S., 278; Anderson v. City of Santa Anna, 116 U. S., 356; Wade v. Travis County, 174 U. S., 499; City of Los Angeles v. Water Co., 177 U. S., 558.

      Counsel for defendant in error raise no question as to the constitutionality of the Act of May 9, 1902 (95 O. L., 444; Sec. 220-1, Batea’ Annotated Statutes). Indeed, they state that it is but declaratory qí the existing law with respect to vested rights. They claim, however, that the act has no application to the contracts made with Gilfillan, and especially with respect to the contract executed December 24, 1902.
    The statute expressly relates to, and operates upon all public contracts, bonds, obligations, etc., as' well those made after, as those entered into before its passage; and its applicability is controlled not by the date of its passage, but by the date of any subsequent change of “judicial construction and adjudication.”
    The provisions of the enactment, therefore, are just as operative with respect to the contract of December 24, 1902, as to the two preceding contracts, for the change of judicial construction of which we complain did not take place until June 26, 1906, the date of the decision by this court, of State, ex rel., v. Lewis, Auditor, 74 Ohio St., 403.
    Furthermore, if this act is simply declaratory of the law as it stood at the time of its passage, then the date-of its enactment is of no determining force whatever, with- respect to its operation.
    The pertinent question therefore is, were the Gilfillan contracts valid according to any rule of judicial decision and construction at the time they were made? We say. that State, ex rel., v. Crites, Auditor, 48 Ohio St., 143; and State, ex rel., v. Cappeller, 39 Ohio St., 207, were both cases of judicial decision, wherein a rule was announced according to which the contracts herein were valid.
    It is apparent that all of the contracts made by Gilfillan come clearly within the letter as well as the spirit of the Act of May'- 9, 1902, and that his rights thereunder should be protected.
    Brief of Mr. Rector; Mr. Seymour; Mr. Thrailkill and Messrs. HugginsHuggins & Johnson.

    Plaintiff in error contends that his rights, under the contracts, are protected and preserved to him by force of the Act of May 9, 1902, 95 Ohio Laws, 444, Sec. 22&-1, Bates’ Statutes. This act is only declaratory of the existing laws. Insurance & Trust Co. v. Debolt, Treas., 16 How., 416; Wade v. Travis County, 174 U. S., 499; City of Cincinnati v. Taft et al., 63 Ohio St., 141; Shoemaker et al. v. City of Cincinnati et al., 68 Ohio St., 603.
    This act, therefore, could not in any event affect the contract entered into on the twenty-fourth day of December,' 1902, and after which date a large amount of property was put on the duplicate by the auditor.
    . This act can only apply, if at all, to the contracts of January 22, 1897, and June 26, 1900, as these were the only contracts, in existence at the time such act was passed. We submit, however, that this act has no applicatio'n whatever to any of the contracts in question in this case.
    By the terms of the act, the contracts in controversy must be valid according to a rule of judicial construction and adjudication, prevailing at the date of such proceedings or action, and the alleged invalidity must be claimed by specific change in such rule of ' construction as to such similar legislation.
    What was the rule of construction prevailing on January 22, 1897, and on June 26, 1900, as to what are 'properly general laws requiring uniform operation throughout the state? There was no judicial adjudication of the law under which the contracts with plaintiff in error, Gilfillan, were made, in so far as related • to the objection on account of its want of uniformity.
    Plaintiffs in error cite the case of State, ex rel. v. Crites, Auditor, 48 Ohio St., 143, as being such an' adjudication.
    The objection that the act of 1888 did not have a uniform operation was not made in that case, and was not therefore adjudicated. This case can not therefore be regarded as authority' upon the question of the uniform operation of' the laws under which the contracts with Gilfillan were made.
    On this point, see the case of State, ex rel. v. Lewis, Auditor, 74 Ohio St., 403.
    Was there then prevailing, at the date of the contracts with Gilfillan, a rule- of judicial construction as to such similar legislation under which his contracts or any of them were valid?
    The judicial construction of the law as to the classification of, cities has been changed by subsequent decisions,
    However,, the law as to the classification of cities waS not such similar legislation as to bring plaintiff’s contract within the provision of the act. of May 9, 1902. Shoemacker et al. v. City of Cincinnati et al., 68 Ohio St., 603; State ex rel.
      v. Cowles et al., 64 Ohio St., 162; see the unreported case of Zelsman et al. v. City of Columbus et al., 73 Ohio St., 355.
    The court in the case of State ex rel. v. Cowles et al., held the act of April 6, 1900 (19 O. L., 517), and the act of April 16, 1900, supplementary thereto (94 Ohio Laws, 670), repugnant to Section 26, Article II, of the constitution.
    Our understanding of the decisions of the court is that this case did not determine the constitutionality of the law as to the general classification of cities. See Shoemaker et al. v. City of Cincinnati et al., 68 Ohio St., 611.
    The converse would therefore be, that the act creating the park commissioners in cities of the second grade of the first class was not a similar law to that of the classification of cities.
    It would therefore be difficult to see how the acts authorizing contracts with tax inquisitors could be similar to the law classifying cities.
    However, the judicial construction and decisions of the court as to what laws must have uniform operation throughout the state . have changed quite decidedly within the last fifteen years. The decisions on a similar case or cases have been directly opposite.
    In the following cases the court construed certain legislation as not being in contravention to Section 26, Art. II, of the constitution. Welker v. Potter et al., 18 Ohio St., 85; State, ex rel., v. Judges, 21 Ohio St., 1; McGill v. State, 34 Ohio St., 228; State, ex rel., v. Cappeller, 39 Ohio St., 207; State, ex rel., v. Shearer, 46 Ohio St., 275; Marmet v. State, 45 Ohio St., 63; Hart v. Murray,
      48 Ohio St., 605; Pearson, Auditor, et al. v. Stephens, 56 Ohio St., 126.
    In the following cases the court held directly the opposite to the foregoing cases: State v. Powers, 38 Ohio St., 54; Ex parte Falk, 42 Ohio St., 638; State, ex rel., v. Ellet et al., 47 Ohio St., 90; Commissioners v. Rosche Bros., 50 Ohio St., 103; State, ex rel., v. Bargus et al., 53 Ohio St., 94; State, ex rel., v. Ferris, 53 Ohio St., 314; State, ex rel., v. Davis et al., 55 Ohio St., 15; Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25; Mott et al. v. Hubbard, Treas., et al., 59 Ohio St., 199; Silberman et al. v. Hay, 59 Ohio St., 582; State, ex rel., v. Buckley et al., 60 Ohio St., 275; State, ex rel., v. Brown et al., 60 Ohio St., 462; Platt v. Craig et al., 66 Ohio St., 75; State, ex rel., v. Yates, Auditor, 66 Ohio St., 546.
    It will be observed that the decisions in the first class of cases were all decided as long ago as 1891, except the case of Pearson, Auditor, et al., v. Stephens, 56 Ohio St., 126, which was decided in 1897.
    The court, as will be seen by the second class of cases, has completely changed its position as to what subjects require uniform legislation. And it will be noticed that this class of cases, excepting the case of Pearson v. Stephens, supra, have been uniformly against the construction claimed by the plaintiffs in error, and against the constitutionality of special legislation. It therefore follows from these decisions that similar laws to the one under which the contracts in question were authorized,' were declared unconstittuional prior to the entering into of the contracts by Gilfillan.

      Plaintiff in error was bound to know the law and to correctly interpret it. Railway Co. v. Kentucky, 161 U. S., 691.
    Plaintiff in error, Gilfillan, contends that he had. acquired vested rights in the subject of the contracts from the fact that relying on the decisions of the court in force at the time his said contracts were made to the effect that the law authorizing the making of contracts with tax inquisitors or such similar laws were constitutional, he made the contracts and fulfilled the same.
    This is the same principle that is attempted to be declared by Section 22&-1, -Revised Statutes, and, unless the contracts with Gilfillan were entered into in reliance upon former adjudications respecting the act whereby such construction was authorized, they are void, ab initio, and never had any effect. Norton v. Shelby County, 118 U. S., 425; Railway Co. v. Kentucky, 161 U. S., 691; Lewis, Auditor, v. Symmes et al., 61 Ohio St., 471; City of Findlay v. Pendleton, 62 Ohio St., 80.
   Shauck, C. J.

On the first day of June, 1905, Phillip E. Gilbert, a taxpayer of Montgomery county, filed a petition in the court óf • common .pleas of that county alleging the facts necessary to entitle him to bring the suit in the capacity of a taxpayer, and praying that the execution of a contract which had been entered into between the appropriate county officials and James R. Thomas, whereby the latter, for a stipulated compensation to be paid by the county, should 'perform the duties of a tax inquisitor in bringing taxable property of the county upon the duplicate for taxation, should be perpetually enjoined, it being alleged that the payment of the stipulated compensation by the county was unlawful because the contract was not authorized by the terms of any constitutional statute. - An answer having been filed, the cause was tried on the pleadings and the evidence, and on July 7, 1905, a judgment was entered in the court of common pleas dismissing the petition. The cause was then appealed to' the circuit court where it was tried de novo upon the pleadings and the evidence. That court being of the opinion that the legislation by which the contract was supposed to be authorized was unconstitutional because repugnant to ' Section 26 of Article II of the Constitution of the state which ordains that all laws of- a general nature shall have uniform operation throughout the state, rendered judgment for the plaintiff, perpetually enjoining Thomas from performing any work and from receiving any compensation under the contract. Thomas thereupon filed a petition in error here for the reversal of the judgment of the circuit court. At the last term the case was fully argued and considered upon the question of the constitutional validity of the legislation intended to authorize contracts of this character. We reached the conclusion that it is invalid because repugnant to Section 26 of Article II of the Constitution. The case is reported in 74 Ohio St., 403, where the constitutional and statutory provisions involved are fully set out. Upon the announcement of our conclusion counsel for Thomas communicated to us their desire to be heard upon the proposition that in view of previous decisions of this court respecting the validity of such legislation the present conclusion that it is invalid does not justify the denial of compensation from the date of the contract. To afford opportunity for hearing upon that question our mandate was withheld and the causes set for argument with Gilfilan v. The State, ex rel. Seymour, Prosecuting Attorney.

The latter cáse originated in a suit by the prosecuting attorney in the court of common pleas of Franklin county to enjoin the payment to Gilfillan of compensation for'services to be performed by him as tax inquisitor for Franklin county under contracts executed between him and the appropriate officers of the county, it being alleged, among other things, that said contracts were invalid because the legislation by which they were supposed to be authorized was repugnant to Section 26 of Article II of the constitution. After a final judgment in the court of common pleas the cause was appealed to the circuit court, where it was tried de novo upon the pleadings and the evidence. In that court it was determined that the legislation was invalid for the reason stated; but in recognition of Gilfillan’s right to rely upon former decisions of this court that this legislation is valid it was held that he was entitled to compensation for services rendered under the contract until this court decided similar legislation invalid, and that date it fixed at May 11, 1899, when this court announced its conclusion in State, ex rel. Wilmot et al. v. Buckley et al., 60 Ohio St., 273, where we held that laws relating to the subject of popular elections are of a general nature, and must be of uniform operation throughout the state. The separate statements of conclusions of fact and of law made by the circuit court embrace other questions which need not be stated here, as they relate to the interpretation of the contract and its application to facts shown in the evidence.

In both cases the present inquiry assumes that the legislation referred to is void for repugnancy to Section 26 of Article II of the constitution' as decided in Thomas et al. v. State, ex rel. Gilbert, 74 Ohio St., 403. We have to ascertain to what extent, in view of the previous decisions of this court, the plaintiffs in error are entitled to rely upon their contracts, notwithstanding the invalidity of the legislation. In one of the briefs there is much reliance upon the act of May 9, 1902 (95 O. L., 444, Bates’ Statutes, Section 22&-1), entitled “An act to carry into effect the intention both of officials and parties respecting certain county and municipal instruments and proceedings.” In view of the abiding character-of the restraints imposed by the constitution upon legislative action, one does not readily accept the cohclusion that legislative acts which they have made void may receive validity from subsequent legislative acts. The inquiry will be most effectively promoted .by adverting at once to the constitutional principles which are involved, for to them it must at last come. The doctrine invoked by the plaintiffs in error is founded on the provisions- of the tenth section of the first article of the Constitution of the United States that no state shall pass any law impairing the obligation of contracts, and that of Section 28 of Article IT of the constitution of this state that “the general assembl)1- shall have no power to pass laws impairing the obligation -of contracts.” The courts have not failed to observe the significance of these provisions of the organic laws for the preservation of the inviolability of contract's. To give to them the effect intended the courts have accorded full recognition to the doctrine that when contractual obligations are involved, and to the extent which may be necessary to their enforcement, the interpretation which is placed upon a constitutional provision by the highest tribunal appointed for that purpose is to be regarded as a part of the provision. In numerous authoritative and well-considered cases this doctrine has been stated in varying terms but to the same import. It was stated with care and precision by Chief Justice Waite in Douglass v. County of Pike, 101 U. S., 677, as follows:

“The true rule is to give a change of judicial construction in respect to a statute, the same effect in its operation on contracts and existing contract rights that would be given to a legislative enactment; that is to say, make it prospective but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in its effect on contracts, as an amendment of Jhe law by means of a legislative enactment.”

The reporter’s abstract of the briefs will show that this doctrine has been- recognized in numerous cases, applying it to decisions respecting the validity of statutes as well as to their construction. It was distinctly recognized by this court in Lewis, Auditor, v. Symmes et al., 61 Ohio St., 471, though its application was there denied because the case involved no contractual obligation. In City of Cincinnati v. Taft et al., 63 Ohio St., 141, the doctrine was recognized and applied in support of the binding obligation of contracts executed under favor of legislation which this court had previously held to be constitutionally valid, although in the case cited it was admitted to be void under our later decisions. Two distinctions should receive attention. This doctrine may be invoked as a matter of right by all suitors who are in a position to assert the binding obligation of contracts. It is, therefore, broadly distinguishable from the doctrine which courts and writers usually and properly treat' under the head of stare decisis, which involve only considerations of public policy and propriety, however important they may be. The provision of the federal constitution is that no state shall pass any law 'impairing the obligation of contracts., while the express restriction of the constitution of the' state is upon the general assembly.,. The duty of the courts of the state would be obvious from a consideration of the purposes in view. It becomes clearer when attention is given to the provision of the federal constitution, for that would not be more clearly violated by an act of the legislature impairing the obligation of a contract than by judicial decision impairing the oblh gation of contracts authorized by laws of which the decision of the court of last resort affirming their validity had become a part.

Upon principle this doctrine may be regarded! as entirely consistent with the commonly accepted doctrine that an unconstitutional act of the legislature is not a law, but a nullity. It is in accordanee with the general rule that all who assume the validity of legislation do so at their peril. As to them, contracts purporting to be authorized by void legislation have no obligation to be impaired by judicial decisions which apply to them the tests prescribed by the constitution. But that contracts executed under, favor of acts which the highest court ■ of the state has declared valid are themselves valid as against subsequent decisions to the contrary, though the acts may not be valid, seems clear for the reasons already stated, and the distinction is clearly implied by the terms in which the courts have stated the doctrine which the plaintiffs in error invoke. The terms of the doctrine require a consideration of the decisions of this court respecting legislation of this character prior to the commencement of these suits. In State, ex rel., v. Cappeller, 39 Ohio St., 207, the court had to determine the proper interpretation of statutes relating to the assessment and collection of taxes and the payment for services rendered in that behalf, and the constitutional validity of the Act of April 14, 1880, entitled “An act to more fully secure the taxation of real and personal property in Ohio and for levying taxes thereon according to its true value” (77 O. L., 205). The act assumed to authorize such contracts as these and to provide for the ratable deduction of money paid for services rendered in that behalf from the several funds in the treasury of the county. Although the title of the act comprehended the entire state, the first section by artifice limited its operation to Hamilton county. The opinion shows that the court did not regard the act as having a uniform operation throughout the state, but it appears to have been regarded as not a law of a general nature because it did not operate throughout the state. Analysis of the opinion in that case is not necessary for the third section of the syllabus prepared by the court as the authoritative statement of the points decided is: “Section i of the act of April 14, 1880 (77 O. L.; 205), is not in conflict with either Section 26 or 28,, Article II of the Constitution.” The legislative act upon which the plaintiffs in error relied when rendering a part of the service under the present contracts was before this court at the January ^ Term, 1891, in State, ex rel., v. Crites, Auditor, 48 Ohio St., 142, when it gave the utmost assurance possible to those who contemplated entering into such contracts, it being stated, in the syllabus that “the act of April 10, 1888 (85 O. L., 170), entitled ‘An act to secure a fuller and better return of property for taxation and to prevent omissions of property from the tax duplicate’ is constitutional, and a contract made pursuant to its provisions is legal and valid.” The former decisions of this court, therefore, clearly justify the resort by counsel for the plaintiffs in error to the doctrines stated in support of their conclusion that these contracts are not entirely destitute of validity in view of the circumstances under which tíiey were executed, although the legislation may be wholly invalid.

To this extent the judgment of the circuit court in Giliillan v. State, ex rel. Seymour, is in accordance with the views we have expressed. But in that court it was thought that this court had withdrawn its authority for reliance upon the validity of the legislation involved on May 9, 1899, when it decided State, ex rel. Wilmot et al., v. Buckley et al., 60 Ohio St., 273. It is true that in that case, and in other cases arising at about the same time, the consideration of this court was given to the constitutional provision here involved, namely, that laws of a general nature must nave uniform operation throughout the state, but neither the case specially referred to nor any other involved in the general consideration dealt with the present subject of legislation, and 'they could not have determined that it is general and therefore within the constitutional requirement. Those cases do not make plainer than it had been ever since the adoption of the constitution that laws which are of that nature must have that operation, though some of them held laws to be of that nature which had not been so regarded in previous decisions. The changes in decisions in all the cases referred to in fhe present inquiry resulted from the present acceptance of the view that a general subject of legislation'does not change its character because a legislative act respecting it may, by the general assembly, be given only a local operation. The court of last resort in the state having in the most authoritative manner affirmed the validity of this legislation, the assurance so given could be withdrawn only by a contrary decision with respect to the same legislation or like legislation upon the same subject. The doctrine recognized as necessary to preserve the obligation of contracts does not permit the denial of compensation to the plaintiffs in error until their right thereto was challenged by the original petitions filed in the court of common pleas in the cases, which resulted in the judgments here reviewed. Other questions discussed by counsel in the case of Gilfillan v. State, ex rel. Seymour, are, we think, foreclosed by the record, and the judgments will be modified only in the respect indicated.

The judgments of the circuit court will be vacated and the causes remanded to that court with instructions to enter such modified judgment as will permit payment to the plaintiffs in error of the stipulated compensation for the services which they rendered before the filing of the original petitions in these causes.

Judgment accordingly.

Price, Crew, Summers, Spear and Davis, JJ., concur.


author: By the Court.

text:
    Boyce v. The Board of Education of Mount Carmel Special School District.

      Attendance at nearest school — Section 40220, Revised Statutes— Law requiring children to attend — School in resident district.

    Section 40220, Revised Statutes, does not require the board of education of a school district to admit children to 'a school outside of the district in which they reside unless the school in their own district is more than a mile and a half from their residence and more remote from their residence than the school to which admission is sought.
    (No. 9883
    Decided May 7, 1907.)
    Error to the Circuit Court of Clermont County.
    The plaintiff in error brought suit in the court of common pleas for a writ of mandamus to compel the defendants in error to admit his children of school age to the school located in Mount Carmel special school district. He alleged that the children resided with him in Beechwood special school district in Union township; that there is but one school in the district in which he resides which is located more than a mile and a half from the relator’s home and that that is the school to which his children are assigned. As ground for the claimed right to their admission to the school under the control of the defendants, he alleged, that the school controlled by the defendants is the nearest school to his residence outside of his own school district and in an adjoining school district. He admitted in his petition that the school to which his children are assigned is nearer his residence than that to which he sought to have them admitted, but alleged that if his children, were compelled to attend the school in the district where they reside they would be required to travel along a public highway which is shaded for a great distance with woods on either side, and quite lonesome and dangerous for children to travel without protection! The relator founded his claimed right to have his children admitted to the school controlled by the defendants upon Section 4022a, Revised Statutes, which is as follows:
    “When pupils live more than one and one-half miles from the school to which they are assigned in the district in which they reside they are entitled to attend a nearer school in the same district, or if there be no nearer school in said district, they may attend the nearest school in another school district, in all grades below the high school, and in such cases the board of education of the district in which they reside shall be compelled to pay the tuition of such pupils without an agreement to that effect, but a board of education shall not collect tuition for attendance as provided herein until after notice of such attendance shall have been given to the board of education of the 'district where the pupils reside, but nothing contained herein shall be construed to require the consent of the board of education of the district where the pupils reside, to such attendance; said tuition shall be paid from either the tuition or the contingent funds and the amount-per capita shall be ascertained by dividing the total expenses of conducting the elementary schools of the district attended, exclusive of permanent improvements and repairs, by the total enrollment in the elementary schools of the district, said amount to be computed by the month and an attendance any part of a month shall create a liability for the whole month. When the schools of a district are centralized or transportation of pupils provided, the provisions of this section shall not apply.”
    In the court of common pleas a demurrer to his petition was overruled and a peremptory writ of mandamus was granted according to his prayer. In the circuit court the judgment of the court of common pleas was reversed and the petition dismissed.

      Mr. Daniel W. Murphy and Messrs. Nichols & Nichols, for plaintiff in error.

      Messrs. Frasier & Hicks for defendant in error.
   By the Court.

Notwithstanding a manifest, want of care to express with precision the purpose of this legislation it is quite clear that the legislature did not contemplate any of the reasons assigned in the petition as- a sufficient cause for the transfer of attendance by children from the school in the district in which they reside to that of another district. It is equally clear from the language which the legislature has employed that the only purpose to be accomplished by the section is to relieve school children from the necessity of attending a school in their own district which is more than one mile and a half from their residence' if there is a nearer school in another district. Since the petition .admits that the school which is under the, control of the defendants is more remote from the residence of the relator than is the school of the district in which he resides, the circuit court correctly determined that the statute does not authorize the transfer.

Judgment affirmed.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.