author: Davis, J. Shauck, J.,

text:
    Gentsch et al. v. The State ex rel. McGorray et al.

      Classification often proper and necessary — In legislation for objects of general law — Classification legislation is special and unconstitutional, when — Section S926o, Revised Stattutes — Of a general nature and valid — Constitutional law.

    1. Classification is often proper and sometimes necessary in-' legislation, in order to define the objects on which a general law is to take effect and in order to definitely apply and effectuate the purposes of the legislation; but when classification is unnecessary, arbitrary, fictitious or otherwise faultily made and is used to evade the constitutional limitations under the form of general legislation, such legislation in relation to a class may he both special and unconstitutional.
    2. Within the legitimate purposes of general legislation, not relating to the organization of cities and villages, a bona fide classification on the basis of real and substantial differences in population, and of the conditions growing out therefrom, may be valid.
    3. Section 2926o, Revised Statutes, is a law of a general nature and operates uniformly throughout the state.
    4. When the said section is construed with other legislation in pari materia, it does not appear that it denies or abridges the right of citizens to vote. The said section is intended to, and does, facilitate rather than impede the exercise of the right of suffrage, and it is reasonable, uniform and impartial.
    (No. 9230
    Decided December 6, 1904.)
    Ebboe to the Circuit Court of Cuyahoga county.
    The defendants in error filed a petition in the court of common pleas of Cuyahoga county praying for a writ of mandamus commanding the plaintiffs in error to cause all voting places in the city of Cleveland to be opened at the hour of five-thirty A. M. on the eighth day of November, 1904, and to keep them open and to receive all votes offered by the qualified electors up to the hour of five-thirty P. M. of said day. The relators allege that they are electors and candidates for office duly nominated in said city. That the defendants are the chief deputy and board of deputy state supervisors and inspectors of elections, as well as judges of election in precinct A, ward fourteen, in Cleveland. They aver that in the act of the general assembly passed April 23, 1904, there is included a certain section, to-wit: section 2926c, which provides that on the day of the November election in every year the polls in each and every precinct in cities in which registration is required, shall be opened by the judges of election appointed and organized as is provided in said act •by proclamation made by the chairman at the hour of five-thirty o ’clock in the morning, standard time, and shall be closed by proclamation at the hour of four o’clock, standard time, in the afternoon, in cities which now have or may hereafter have a population of three hundred thousand or more, as ascertained in the manner provided in section 2926a, and at the hour of five-thirty o ’clock in the afternoon in all other cities in which registration is required. . And the relators further allege that said section is unconstitutional and void, and that the defendants nevertheless threaten and declare their intention of opening said polls at five-thirty o’clock A. M. standard time, on November 8, 1904, and of closing the same at four o’clock in the afternoon of the same day in the city of Cleveland, which is a city having a population of three hundred thousand. or more. The relators further say that the population of Cleveland is about four hundred and fifty thousand, and that there are more that ninety thousand qualified electors in said city who have the right to vote at said election, and as electors will, at said election, be required to choose and vote upon more than three hundred persons as candidates for national, state, county, municipal and township offices, thirty persons as candidates for school district offices, and three questions submitted to popular vote, two of them involving the annexation of territory to the said city, and one involving the issuance of a large amount of bonds for municipal purposes. That there are in the said city about two hundred and thirty-nine precincts, and at past elections, at many of these precincts, more than four hundred and fifty electors have cast their ballots; and that heretofore the time from half-past five in the morning until half-past five in the afternoon in the large precincts has not sufficed to enable all the electors entitled to cast their ballots to vote, and if the provisions of said section be enforced, many electors throughout said city will be unable to vote by reason of the physical impossibility of all the voters residing in such precincts and entitled to vote, casting their ballots within the time allowed by said unconstitutional section of the statutes of Ohio. The relators say that the defendants have been urged and demanded by these relators to disregard the provisions of said section, which they have refused to do; but on the other hand threaten and will, unless otherwise directed by the court, close the said polling places at the hour of four P. M. on said day. A demurrer was filed to the petition on the ground that it did not state facts sufficient to constitute a cause of action for the relief prayed for, which demurrer was overruled by the court of common pleas, and the defendants not desiring to plead further, judgment was rendered thereon. The plaintiffs in error in the circuit court, also plaintiffs in error here, filed a petition in error in the circuit court of said county, seeking the reversal of said judgment, and the circuit court affirmed the judgment of the court of common pleas, and proceedings are prosecuted in this court for the purpose of obtaining a reversal of the judgment of the circuit court and the court of common pleas.

      Mr. Wade H. Ellis, attorney general, and Mr. Roscoe J. Mauclc, of counsel, for plaintiff in error.
    The relator argued that section 2926c, Revised Statutes, as amended April 23, 1904 (97 O. L., 208), was unconstitutional because it violated article 2, section 26, and article 5, section 1, of the constitution of Ohio, and that section 2929, Revised Statutes, controlled the proposed action of the defendants in closing the polls.
    It must be apparent that if section 2926o violates article 2, section 26, then section 2929 is imbued with the same infirmities and cannot therefore be invoked by the relators herein. The same weakness appears in the same section as enacted by previous general assemblies. In 90 O. L., 281, this section made an exception in closing the polls in favor of Cincinnati. In 88 O. L., 99, the same section made the closing hours for other places at six o’clock and for Cincinnati at four o ’clock. Following its course backward we discover that the first enactment of the closing law under the present constitution was in 50 O. L., 311, to the effect that “The polls shall be opened between the hours of six and ten in the morning, and closed at six in the afternoon of the same day.”
    The revision commission accepted this same language and it so continued until the amendment in 88 O. L., 99. Inasmuch as mandamus only commands “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station” (section 6741, Revised Statutes), and inasmuch as no law authorizing the polls to open and close at five-thirty is now or ever did exist in Ohio, exempt from the suggested constitutional infirmity of lack of uniform application, this petition was insufficient in law and the demurrer should have been sustained. If the law for which the defendants contend cannot be sustained then the governing section is the law of 1853 under which the defendants in a proper action might be compelled to keep polls open until six o’clock, but they could not be required to open them until ten.
    Further, if the section in question violates article 2, section 26, then section 29266 is for a similar reason unconstitutional, and this being the section under which the defendants were appointed to office their title fails and in failing destroys all right on the part of any one to force them to perform a public duty.
    The title of office of the defendants can be raised by mandamus. State ex rel. Armstrong v. Halliday, 61 Ohio St., 171.
    But this act is not unconstitutional. It violates none of those sections which provide for and guarantee the citizen’s right of suffrage. The suggestion is made that the law only provides for a three and one-half hour holiday on election day, and that all the electors cannot be accommodated within those hours. But heretofore, there has been no legal holiday at all on election day. The new statute is an enlargement of the opportunities of the elector and not a trespass thereon, as the petition seems to imply. If this law is to be declared unconstitutional because all the electors in a given precinct cannot be accommodated within the hours made a legal holiday then all previous elections must be invalid because heretofore no-part of election day was a holiday.
    In order to make an apparent case, the petition below, on page seven, contained the allegation that only four marking stalls are provided in the booths of that city, and that with but four marking stalls, all the electors could not be accommodated within the three and one-half hours on the morning of the election now made by statute a legal holiday.
    While the demurrer admits the allegation of the petition that only four marking stalls are to be provided in each booth, the attention of the court is di- . rected to 97 O. L., 234 (sec. 19), where it is provided that the number- of voting shelves shall not be less than one for every seventy-five electors qualified to-vote at such voting place. Under the statutes no voting precinct can have more than five hundred electors, and when a precinct reaches that population its division becomes necessary by the board of' election.
    Nor does section 2926c in any way contravene-article 2, section 26. The relator laid great stress-upon Hixon v. Burson, 54 Ohio St., 470. The court held in that case simply “that the constitutionality of an act is determined by the nature of its subject-matter, its operation and effect and not alone by its-form.” Every one agrees to that proposition now. The subject-matter of the act under consideration in the Hixon case was the construction of roads. The-court held that that subject-matter was such as to-come within the purview of article 2, section 26, and that there was no reason why legislation for their construction should not be broad enough to cover the whole state. We have no quarrel with that proposition. The trial court in overruling the demurrer to the petition relied largely upon State ex rel. Wilmot v. Buchley, 60 Ohio St., 273. This case, however, is neither controlling nor in point.
    What the court did hold there was that a classification of cities ignoring the city of Mansfield and all of the cities of the fourth grade and first class, was not of uniform operation throughout the state. It •did not hold, nor had any of the recent decisions of this court held, that the details of elections must be precisely the same in all parts of the state, nor have they decided that all laws must have a uniform operation throughout the state, where reason and experience, justify otherwise. Platt v. Craig, 66 Ohio St., 75; State ex rel. Knisely v. Jones, 66 Ohio St., 453.
    That elections in cities require more and different ■safeguards from fraud and intimidation than elections in rural counties seems to be so patent a fact that none can deny it. The history of election frauds in the whole country is largely a history of offenses •committed in great cities. The dangers existing in cities has led this, and other states, to require the registration of voters in cities of the larger size. Commonwealth v. McClelland, 83 Ky., 687.
    It is to be observed from the history heretofore given of section 2929 that that section has only made an exception in favor of Cincinnati since 1889. Prom 1886, however, section 2926o has caused the Cincinnati polls to close at four o ’clock, and it is more than a coincidence that this legislation followed in the wake of the election frauds of 1884 and 1885, and was one of the steps taken to remedy the evils then prevailing in that city. The recent general assembly ^changed the law from one affecting Cincinnati only to one affecting all cities of three hundred thousand) and more population.

      ■ Messrs. Foran £ McTighe and Mr. Arnold Oreen, for defendant in error.
    We claim, first, that section 2926o, Revised Statutes, is unconstitutional and void, for the reason that the legislature has no power, directly or indirectly, to abridge or to unnecessarily impair the constitutional -right of every citizen to vote. Monroe v. Collins, 17 Ohio St., 666.
    It is admitted that the legislature has the right to-pass laws regulating the manner in which elections shall be conducted, and the legislature has also the right to regulate the enjoyment and the constitutional right of the electors to vote, but only by laws, which facilitate the lawful exercise of that right, and by laws which are intended to prevent an abuse of that right. The true rule, or rather the true line between laws which take away the right, or abridge the right of suffrage, and those which may lawfully be enacted to regulate its exercise, is laid down by the supreme court of Massachusetts in Capen v. Foster, 12 Pick., 488.
    The legislature of the state of Ohio passed an act on May 4,1885 (82 O. L., 232), requiring registration in the cities of Cleveland and Cincinnati as a condition of the right of suffrage in those cities. This act allowed voters seven days within the year in which to register and correct registration, but it contained no provision for registration after the seven days, although five days after the last day of registration intervened before the election was had. In Daggett v. Hudson, 43 Ohio St., 548, our Supreme-Court declared this act to be unconstitutional, for-the reason that it had a direct tendency to impair the right of suffrage, and might disfranchise without their fault a large body of voters necessarily absent from the place of registration during the allowed time for registration.
    This is also the law in the state of Massachusetts. Lyman v. Martin, 2 Libby, 136.
    It may now be regarded as settled law that in the absence of constitutional inhibition, the legislature may pass registration laws, even of a local character, if they merely regulate in a reasonable and uniform manner how the privilege of voting shall be exercised. Owensboro v. Hickman, 14 S. W. Rep., 688.
    The constitution of the state of Nebraska has practically the same constitutional provisions with respect to the right to vote as the state of Ohio. A law of that state requiring registration provided that the electors should be deprived of the right to vote unless they registered on one of four days, the last, one being ten days prior to the election. This law was held unconstitutional and void. State v. Corner, 22 Neb., 265.
    The legislature of a state may regulate the right to vote by facilitating its lawful course and by preventing its abusé. The right to vote must not be impaired by the regulation. It must be regulation, not destruction. Attorney General v. Detroit, 78 Mich., 545.
    Citation of authorities to this effect might be multiplied to a great extent, but we do not think it necessary to pursue the subject further. We however call attention to State ex rel. v. Poston, 59 Ohio St., 133.
    In view of these decisions we may now pertinently ask what necessity exists for requiring the polls to be closed at four P. M. on election days in Cincinnati’ and Cleveland. We use the words Cincinnati and Cleveland advisedly. The legislature, by the act of May 16, 1894 (91 O. L., 759), provided for the construction, improvement and repair of certain public highways. This act was to apply, however, “to any county which, by the last federal census had, or which at any subsequent census may have, a population of not less than 35,190 and not to exceed 35,200.” The Supreme Court in passing upon this act said in Hixon v. Burson, 54 Ohio St., 470, that while the act was: “ in form general, it is in its operation local, and might just as well have named Athens county by name as to have designated it by its population by the last federal census, of not less than 35,190 and not more than 35,200.” In other words, there was no other county, at the time of the passage of this act, in the state of Ohio, that had just that population. By a parity of reasoning it may be said with equal frankness and truth, that section 2926o (97 O. L., 208), which provides that the chairman of the board of the judges of elections shall by proclamation open the polls at five-thirty o’clock in the morning, standard time, and shall close them by proclamation at the hour of four o’clock, standard time, in the afternoon “in cities which have now or may hereafter have a population of 300,000, or more, as ascertained in the manner provided in section 2926a, and at the hour of four-thirty o’clock in the afternoon in all other cities in which registration is required” might just as well have named Cincinnati and Cleveland by name as to have designated them by their population at the last federal census.
    We claim this law is unconstitutional, that is, section 2926o, for the reason that it is in contravention of section 26, article 2, of the constitution of Ohio, which provides that “All laws Of-a general naturé shall have a uniform operation throughout the state.” 1
    This question has been before the Supreme Court of the state a great many times, and it may be said truthfully that during a long period there were some doubts as to the interpretation which the Supréme Court placed upon this languagé of the* constitution. The question first came up for adjúdication in State v. Powers, 38 Ohio St., 54. By an act of the general assembly March 31, 1879, it was provided: “That upon a vote, as hereinafter provided for, the territory comprising the township of New London in Huron county, Ohio, now consisting of New London School District and the New London Village School District, be and the samé are hereby organized into a special school district, to be known as the New London School District.” This statute was held to be unconstitutional, because it was in contravention of section 26, article 2, of the constitution, and section 2, article 6, of the constitution.
    But later in the case of State ex rel. v. Shearer, 46 Ohio St., 275, the doctrine laid dowp in the Powers case, 38 Ohio St., 54, was overruled, and it was declared in the latter case that: “A law is not necessarily of a general nature by reason simply of its being upon a general subject,” and also “that the subject of dividing territory into school districts is in its nature local. ’ ’ It will not be necessary to discuss this case at length, as the doctrine of the State ex rel. v. Shearer was distinctly overruled in the Spellmire case, 67 Ohio St., 77.
    So that, today, the doctrine of the Powers case, béiiig reaffirmed by thé Spellmire case, .’is the doctrine upon this subject in Ohio at this time. Section five’ of the syllabus in State ex rel. Wihnot v. Buckley, 60 Ohio St., 273, may be said to be in accordance with the doctrine of the Shearer case (46 Ohio St., 275), which was expressly overruled in the Spell-mire case (67 Ohio St., 77), but if there is any doubt upon that question it is dispelled by State ex rel. Knisely v. Jones et al., 66 Ohio St., 453. This latter case effectually destroys the doctrines of classification of cities.
    To the same effect is the case of State ex rel. Attorney General v. Beacom et al., 66 Ohio St., 491. In this case the attorney general in his brief tersely states the doctrine to be: “In all cases where it has been evident that such law applies to one city or may not or cannot be of uniform operation throughout the state, it has been held to be unconstitutional, and the mere fact that the city has not been named has been held not to change the character of the act..’ ’
    That was the language of the attorney general in the Beaeom case, and in support of his position he cites: State v. Ellet, 47 Ohio St., 90; Hixon v. Burson, 54 Ohio St., 470; State v. Bader, 54 Ohio St., 666; State v. Davis, 55 Ohio St., 15; Hubbard v. Fitzsimmons, 57 Ohio St., 436; Mott v. Hubbard, 59 Ohio St., 199; State v. Buckley, 60 Ohio St., 273; State v. Brown, 60 Ohio St., 462; State v. Cowles, 64 Ohio St., 162; State v. Ketter, 65 Ohio St., 558; State ex rel. v. Ratterman, 58 Ohio St., 731.
   Davis, J.

The contention is made here that section 2926o, Revised Statutes, violates section 1, article 5, of the constitution and also section 26, article 2, of the constitution.

It has not been made to appear to us, by argument or otherwise, that the strict enforcement of this statute would necessarily deprive any elector of liis vote, or that any elector ever has been deprived of his vote thereby. In one of the cities of the class defined in this section, this law has been in force for eighteen years and no complaint has yet been made that it has operated to the exclusion of a single lawful vote. When we consider its operation in connection with the sections of the statute making the election day from five-thirty o’clock A. M. to nine o’clock A. M., a legal part holiday, for election purposes only, and requiring the deputy state supervisors to “provide a sufficient number of voting shelves” (97 O. L., 238, sec. 6, and 234, sec. 19), it does not appear probable that any voter would be deprived of his vote by reason of the shortness of the time allowed. The first ground of the contention is therefore not well taken.

The section is general in its nature. Its subject-matter is the conduct of elections, as is the subject-matter of the whole statute of which it is a part, a matter which directly concerns every elector in the commonwealth. It operates throughout the state, because its operation is not limited to any locality and is limited only by the boundaries of the state. The provisions of this section, however, do apply only to cities having a population of three hundred thousand or more, wherever they may be situated within the state. It happens that there are only two cities in the state which are included in the class defined in the statute; and it also happens that these cities are situated at opposite extremities of the state. Hence it is argued that although the act is in form and subject-matter of a general nature and operates throughout the state, yet that it does not uniformly operate throughout the state and is in intention and effect a special enactment; conferring a special privilege upon the two cities, in regard to a matter which concerns alike all the electors of the state; and it is maintained that it is based on an unconstitutional classification in order to give the section the form and appearance of a law of uniform operation.

If the classification which is made in this statute can be sustained, then the statute strictly complies with section 26 of article 2 of the constitution. If such classification is not allowable under the constitution, then this section of the statute is unconstitutional, for the reason that it is special legislation upon a subject-matter of a general nature and does not operate uniformly throughout the state.

In Platt v. Craig et al., 66 Ohio St., 75, 79, it was said in the opinion that “laws of a general nature are required by the constitution (art. 2, sec. 26) to have a uniform operation throughout the state. Not only must such laws operate throughout the state, but they must, operate unif ormly, that is, there must be no exemption as to individuals of the same class. A general law must, therefore, in its operation be coextensive with the state and coextensive with every class brought within the purview of the statute; but the section does not imply that a law of a general nature must necessarily affect every individual in the state, or every small division of territory within the state.”

In State ex rel. v. Spellmire et al., 67 Ohio St., 77, at page 86, Burket, C. J., says: “With us ‘uniform operation throughout the state’ means universal operation as to territory; it takes in the whole state. And, as to persons ‘and things, it means universal operation as to all persons and things in the same condition or category. When a law is available in every part of the state as to all persons and things in the same condition or category, it is of uniform operation throughout the state.”

It is apparent from these recent utterances of this court, that the court has never meant to be understood as denying the general doctrine, held everywhere and often approved here, that a statute in relation to a class, if its operation is not territorially restricted, is a general law. Classification is often proper and sometimes necessary in legislation, in order to define the objects on which the law is to take effect and in order to definitely apply and effectuate the purposes of the legislation. For example, married women and widows are recognized as two distinct classes for the purposes of legislation peculiar to each class, as are also corporations classed as railroad companies, street railroad companies, electric interurban railroad companies, telegraph companies, telephone companies, express and insurance companies, etc. Many other illustrations may be found in the statutes of our state. In short there could be very little general legislation without classification.

But when the classification is unnecessary, arbitrary, fictitious or otherwise faultily made and is used to evade the constitutional limitations under the form of general legislation, such legislation in relation to a class may be special and unconstitutional. The reported decisions of this court abound with cases of false classification in acts obviously drawn with the purpose of enacting special laws under the guise of general laws. These are chiefly acts relating to municipal corporations.

In State ex rel. Knisely et al. v. Jones et al., 66 Ohio St., 453, it was clearly shown that classification and subclassification of cities and villages for the purposes of the organization thereof and for the purposes of legislation relating to the organization thereof, to the extent that every considerable city stood in a class by itself and all others could be readily identified and might as well have been mentioned by name, was not a classification on the basis of any real or permanent relation among its objects, but was a fictitious classification resulting in specialization and an evasion of constitutional limitations; and that legislation founded thereon was special legislation. But that is not inconsistent with the well established doctrine that within the legitimate purposes of general legislation, not relating to the organization of cities and villages, a bona fide classification on the basis of real and substantial differences in population, and of the conditions growing out therefrom, would be valid. The present case is an illustration of the application of this principle. The general assembly was legislating upon the subject of the conduct of elections throughout the state. That body was admonished in advance by a decision of this court that “The legislature have no power, directly or indirectly, to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; and laws passed professedly to regulate its exercise or prevent its abuse must be reasonable, uniform and impartial.” Monroe et al. v. Collins, 17 Ohio St., 665.

But experience had shown that under the social conditions which prevail in some quarters of very large cities, fraud, intimidation and even violence were more likely to occur in the twilight and darkness than in hroad daylight — “They love darkness because their deeds are evil” — and more likely to occur there than in smaller aggregations of population. The legislature therefore provided that the polls should be closed at four o ’clock, standard time, in the afternoon, “in cities which have now or may hereafter have a population of three hundred thousand or more.” The minimum of population thus fixed is tens of thousands below the population of either of the cities now included within the class, and is not beyond the range of possibility to other cities, if the rate of growth in urban populations in recent years should continue for a quarter or a half of a century. Thus the legislature clearly evinced an intention that the section which is now challenged should not apply to Cincinnati and Cleveland only, but should apply generally throughout the state, and that it should be a permanent regulation regarding the conduct of elections throughout the state.

There may well be differences of opinion as to whether this provision should not apply to cities of less population than the prescribed number; but the law-making power has exercised its judgment on that matter. The limit of population upon which the classification should be based is entirely within the discretion of the general assembly, having regard to all the conditions and circumstances, and so long as it is not unreasonable in its operation or subversive of the rights of electors, we cannot interfere with it.

This section was evidently designed to protect the voter in easting a free, untrammeled ballot and to ■enable him to have it honestly counted. It seems to have been conceived on proper lines and when construed with other enactments in pari materia, it is liberal and reasonable towards the voter.

The case of State ex rel. v. Buckley, 60 Ohio St., 273, cited in behalf of the relators, does not apply to this case. In that case there was an express exemption of territory as to which the statute should not be operative. That is not true of the statute which we are now considering.

Our conclusion is, therefore, that section 2926o, Revised Statutes, is a law of a general nature and that it operates uniformly throughout the state; that when considered in connection with other legislation related to it and on the.same subject, it does not deny or abridge the right of citizens to vote; that it is intended to, and does, facilitate rather than impede the exercise of the right of suffrage; and that it is reasonable, uniform and impartial.

The judgment of the circuit court and the judgment of the court of common pleas are therefore

Reversed and the original petition dismissed.

Chew and Summers, JJ., concur.

Spear, C. J., and Price, J., not sitting.

Shauck, J.,

concurs in the third and fourth propositions of the syllabus and in the judgment.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Board of Education of Canton v. Walker.

      Board of education cannot employ teacher for term extending beyond term of members of board — Section bOll, Revised Statutes — Several defenses pleaded to action and demurrer to each — Demurrer overruled by trial court — Circuit court finds error in overruling demurrer as to one defense only— Circuit court should affirm judgment of court below — Pleading's.

    1. Under section 4017, Revised Statutes, a board of education cannot lawfully employ a teacher for a term which would expire after the term of office of every member of the board employing him had expired by law.
    2. Where several defenses, each complete in itself, have been pleaded to an action, and demurrer to each of them has been overruled by the trial court and judgment rendered thereon fo-r defendant, and on petition in error the circuit court finds that there was error in overruling the demurrer as to one defense but that the demurrer was properly overruled as to the other defenses, the circuit court should affirm the judgment of the court below.
    (No. 8534
    Decided December 6, 1904.)
    Error to the Circuit Court of Stark county.
    The defendant in error began his action in- the court of common pleas of Stark county against the plaintiff in error* the Board of Education of the City of Canton, to recover damages in the sum of nine hundred dollars alleged to have been sustained by reason of his dismissal from the position of principal of one of the schools of said city. An answer was filed which contained five defenses. A demurrer was filed to the first, third, fourth and fifth defenses, and was overruled by the court of common pleas as to the first, third and fifth defenses and sustained as to the fourth defense. The first defense was, substantially, that the plaintiff was hired subject to the condition that the service of plaintiff might be terminated or dispensed ■ with at any time upon recommendation of the superintendent of instruction and a majority vote of the defendant, and that he was discharged pursuant to such condition, and with full knowledge thereof upon the part of the plaintiff. The third defense was, that the contract set forth in the plaintiff’s petition was one which could not he performed within the period of one year from the making thereof, and that neither the said contract nor any memorandum or note thereof is in writing signed by the party to be charged therewith, or by any other person authorized thereunto by him. The fifth defense sets forth that the board was organized and had its existence under and by virtue of a special act of the legislature of Ohio, passed March 1, 1892, and recorded in 90 Local Laws of Ohio, 450. That by the terms of said law each member of the defendant board shall serve two years, the board to consist of six members, three to be chosen each year for a term of two years. That the defendant board, by the terms of said law, is compelled to reorganize each year, and becomes a new board each year by reason of the fact that three members are required to be elected each year. That the said board, as organized and constituted at the time of the making of the said contract, to-wit: June 26, 1899, had no power, by virtue of any law of the state, to enter into a contract with the plaintiff for a period of two years thereafter, and that the said attempted hiring for the period of two years, as set forth in the petition, was illegal and void, and against public policy. The plaintiff below, after the overruling of his demurrer to the first, third and fifth defenses in the court of common pleas, declined to plead further, and judgment was entered against him for costs, and his petition dismissed. On proceedings in error, the ■ circuit court reversed the judgment of the court of ■common pleas upon the ground that it erred in overruling the demurrer to the said fifth defense, but the circuit court expressly found that the court of common pleas did not err in overruling the demurrer filed by the plaintiff in error to the first and third defenses in the answer. This proceeding is prosecuted to reverse the judgment of the circuit ■court and to affirm the judgment of the court of common pleas.

      Mr. Denver C. Hughes, city solicitor, for plaintiff in error. ,

      Messrs. Welty S Albaugh, and Mr. J. W. Burris, for defendant in error.
   By the Court.

By the statute, 90 O. L. (Local), 450, the board of education of the city of Canton was made to consist of six members, of whom three were required to be chosen each year for a term of two years. • Thus in two years from the time of its > organization on the third Monday of April the term of office of every member of the board would have ■expired. The board which made this contract was •organized on the third Monday of April, 1899. The contract was made June 26,1899, as alleged by plaintiff, to commence July 1, 1899, and to run two years from that date. But the term of office of every member of the board which made the contract expired before Jhe contract would expire, namely, on the third Monday of April, 1901.

Section 4017, Revised' Statutes, relating to the ■employment of teachers, etc., provides that “no person shall be appointed for a longer time than that for which a member of the board is elected.” The time-“for which a member, is elected” is in this instance two years from the third Monday of April. That is the limit of the teacher’s employment. It may be less. It must not be more. The apparent purpose of the general assembly is to prevent a board of education from continuing a teacher’s appointment for any time after the people may have' completely changed the organization and personnel of the board. We are therefore of the opinion that the board of education was without power to employ a teacher for the term which would expire after the term of office of every member of the board, employing him had expired by law. The circuit court therefore erred in sustaining the demurrer to the fifth defense.

But the judgment of the court of common pleas should have been affirmed on another ground. That court not only overruled the demurrer to the fifth defense, but to the first and third defenses also. The plaintiff declined to plead further and suffered final judgment to go against him. The circuit court found that the court of common pleas did not err in this, and in that we think that the judgments of both courts below are correct. For that reason the judgment of the court of common pleas should have been affirmed. •

The judgment of the circuit court is reversed and that of the court of common pleas is affirmed.

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


author: Speak, C. J.

text:
    Pinney v. The Merchants’ National Bank.

      Mortgages — Recording and assignment of — Effect of failure of assignee of mortgage to record assignment — Senior mortgagee not required to malee junior assignee party, when— Foreolosure proceedings — Rights of innocent purchaser— Section 4185, Revised Statutes — Act of April 16/1888.

    1. Section 4135, Revised Statutes, as amended April 16, 1888 (85 O. L., 284), authorizes the assignment of a mortgage to be recorded on the margin of the record thereof in the office of the county recorder. Such record is notice to all interested in the mortgaged premises, including mortgagees and subsequent purchasers, of the equitable right of the assignee in the mortgage, and that he is a necessary party to a suit brought to foreclose another lien upon the premises. But where such assignee fails to have his assignment so entered of record, and a senior mortgagee of the same premises brings an action to foreclose, he is, in the absence of notice or knowledge that the junior mortgagee has parted with his interest, justified in regarding the record as showing that the junior mortgagee remains the absolute holder of the mortgage, and in bringing him in as a party to the action. He is not required, at his peril, to ascertain whether or not some other person has an interest in the mortgage and make him a party.
    2. Where, in such case the apparent owner of the junior mortgage is made a party, and a sale is made of the premises founded upon proceedings in all respects regular, to an innocent purchaser, such purchaser will take title free and clear from the claim of the assignee of the junior mortgage.
    (No. 8511
    Decided December 6, 1904.)
    Error to the Circuit Court of Paulding county.
    The action out of which the present' error proceeding arises was brought by the defendant in error, The Merchants’ National Bank of Defiance, against .the defendant in error, John B. Lamb, and the plaintiff in error, Charles O. Pinney, and others, to recover against Lamb as maker of a promissory note, and tó obtain foreclosure of a m'ortgage given by said Lamb, upon four hundred acres of land in Paulding county. Demand was also made for an accounting of rents and profits. Lamb made no answer but was in default. The plaintiff in error, Pinney, answered denying the claim of the Bank, and setting up title to a portion of the land by virtue of a sheriff’s sale and deed upon foreclosure of a mortgage prior to that claimed to be held by the Bank. He also set up that if the Bank’s claim should prevail he should be allowed for lasting and valuable-improvements upon the land, made by him and his predecessors in title, and for taxes and assessments paid on the same. Other parties appeared, but their controversies are not brought to this court, and we-have to do only with the contention between the-Bank and Pinney. Their controversy involves the question whether or not the mortgage claimed to-be owned by the Bank was foreclosed, and the Bank’s, rights determined, by the foreclosure and sale above-referred to. Upon trial on appeal in the circuit court at its May term, 1903, the issues were found, generally for the Bank and judgment in its favor-entered. The circuit court made a finding of facts separate from its conclusions of law, and from that finding the following pertinent facts are gleaned:
    On December 21, 1892, John D. Lamb was the owner of a four hundred acre tract of land in Paulding county, being the west half and the southwest quarter of the northeast quarter, and the northwest quarter of the southeast quarter of section thirteen in Harrison township. On that day said Lamb, his wife Florence B. joining, executed and delivered to-one Dickinson a mortgage on the land to secure a note for five thousand dollars at the same time executed and delivered. On December 26th, following,, the mortgage was duly recorded in the mortgage records of Paulding county. Thereafter, for value, the note and mortgage were duly sold and assigned to one Woodhead.
    On July 6, 1893, Lamb and wife executed and delivered to one J. P. Buffington their note for twenty-five hundred dollars and a mortgage upon the same premises to secure it, the note coming due one year from date, which mortgage was duly recorded July 15, 1893. July 20, 1893, Buffington transferred and assigned the note and mortgage to the Merchants’’ National Bank, as collateral security for a preexisting debt then amounting to about four thousand two hundred dollars. The assignment was in writing upon the mortgage, but the same was never recorded in the office of the county recorder of Paulding county. ' The indebtedness of Buffington to the Bank still exceeds the amount of the note secured by the mortgage.
    On January 1, 1894, Woodhead, as the owner of the first-named note and mortgage, commenced an action in foreclosure in the court of common pleas-of Paulding county, making Lamb and others defendants. The petition alleged that J. P. Buffington claimed an interest in the premises but that the same-was subsequent and inferior to that of Woodhead. Buffington’s name did not appear in the caption of any of the pleadings. Buffington did not file any pleading, nor does the record of the common pleas show the issuing of any summons against Buffing-ton on the petition, but the record, under date of’ April 28, 1894, upon a hearing upon divers answers and cross-petitions, and the evidence, does show that the court found that Buffington had been served with summons and was in default. The record also-■shows, under date of July 28, 1894, upon a further hearing upon divers answers and cross-petitions, .and the evidence, that the court found that Buffing-ton had been duly served with summons and was in default. The record of the -common pleas further shows that upon final hearing, September 24, 1894, upon the amended and supplemental petitions and the evidence, that John D. Lamb and Florence B. Lamb had been served with summons and were in default, and that Buffington had waived the issue and service of summons and voluntarily entered his appearance herein, and was in default. A judgment in favor of Woodhead (plaintiff) for $5,459.49 was then rendered, and •decree for sale was thereupon taken. The Bank was not made a party to the action, nor brought in as such in any manner.
    • Sales were duly made under the order, the west half (the land now in controversy) being sold to one Francisco for $6,401.00, and upon confirmation and payment of the purchase money by the purchasers, deeds were made to them respectively and they thereupon entered into possession, and with their ■successors in title, including Pinney, have been and still are in possession under and by virtue of said proceedings. This final decree adjudged that the title of Francisco to the tract so by him purchased was free and clear from all claims of Buffington, and .all persons claiming under him, and that said title ought to be and was quieted as against said Buffing-ton and all persons claiming under him, 'and they were enjoined from interfering with the title or possession of Francisco to the premises. Thereafter, on January 12, 1895, pursuant to an order of the ■court, and in accordance with section 4139, Revised Statutes, the clerk of the court caused satisfaction of the mortgage set forth in the petition, and of the Buffington mortgage, to be entered upon the record thereof in the office of the county recorder.
    Pinney, the plaintiff in error, became the owner of the west half of section thirteen by mean conveyances from Francisco, the purchaser.
    At the time of sale the lands were neither cleared nor drained and were wholly unimproved. Pinney, and his predecessors in title from Francisco, placed lasting and valuable improvements on the land to the value of $9,005.00, and paid taxes and assessments thereon to the amount of $2,210.29. The purchase price paid by Francisco ($6,401:00), was applied to the payment of taxes then due, costs, the amount due on the judgment in favor of Woodhead on the Dickinson mortgage, and other liens, all •of which were prior and superior to the lien of the Buffington mortgage, a portion of which prior liens still remain unpaid.
    Neither Woodhead, Francisco, nor Pinney, nor any ■of the holders of title to any of the premises, had any knowledge that the Bank claimed to have any interest in the note or mortgage to Buffington, or that he had transferred any interest to anyone, until the •commencement of the Bank’s suit.
    A few weeks after the sale of the lands, and the taking possession by the purchasers, Buffington talked to the cashier of the Bank, or the Bank officers, in regard to the sale of the lands at sheriff’s sale.
    On these facts the circuit court found that the mortgage set forth in the petition of the Bank is a good, valid and subsisting lien, for the amount due, viz.: $4,433.33, including interest to date, and for interest thereon at eight per cent, until paid; that the conditions of the mortgage have been broken, and that the Bank is entitled to a foreclosure thereof. The court found as to the other issues between the Bank and Pinney that the latter was entitled to be subrogated to the lien of the state for taxes and assessments, and the rights of the lienholders whose claims were paid in the action of Woodhead to the extent of the purchase money paid by Francisco; also that he had a lien to the extent that the improvements exceed in value the rents, all of which is superior to the lien of the Bank. Judgment was rendered accordingly. It was adjudged that of the amount due the Bank there should be apportioned against the land owned by Pinney the sum of $3,-740.78. It was further adjudged that unless the sum found due the Bank and so apportioned, with interest at eight per cent, be paid by June .1, 1903, that an order of sale issue to the sheriff to sell the premises.
    As to John D. Lamb the court found that he has no' equities to be let in to redeem, his equity of redemption being foreclosed and his right to redeem barred by the decree in Woodhead v. Lamb et al.

    From this judgment and decree error is prosecuted to this court by Pinney.

      Messrs. Snook £ Wilcox; Messrs. Waters £ Bayliss and Messrs. Spriggs £ Spriggs, for plaintiff in error.

      Messrs. Sutphen £ Sutphen, for the Bank.

      Mr. John D. Lamb, for himself.
   Speak, C. J.

At the outset we meet the question whether or not the Bank has any standing in court to maintain this suit, the contention of the plaintiff in error being that the Buffington mortgage was necessarily foreclosed by the suit brought by Wood-head upon the Dickinson mortgage, a prior incumbrance. If this is so then clearly the Bank has no standing and can be afforded no relief as regards the plaintiff in error.

It will be observed that the circuit court does not attempt to determine whether or not Buffington was a party to the Woodhead suit. Its findings are of evidentiary facts appearing of record in the proceedings of the court of common pleas in that suit, but it nowhere determines the ultimate fact. The common pleas record finds with distinctness, and by repetition which is almost suspicious, that Buffing-ton had become a party to the case. As against this plain finding we are not at liberty to indulge in surmises, but must accept the finding of the common pleas as conclusive of the fact that Buffington, mortgagee, was a party to that foreclosure suit, and it follows that he could, have no standing now to dispute the conclusive effect of that adjudication. The question then is, does the Bank stand in any better position, being the owner of the Buffington note and mortgage at the time that suit was commenced and determined, its assignment however not being upon record, and neither the parties to the suit, nor the purchaser, having any knowledge or notice of the transfer by Buffington to the Bank. The Bank’s claim rests upon the proposition that it is necessary in all cases, in order to adjudicate finally the rights of all parties to title to real estate, that the real parties in interest, and all of them, be brought before the court, and that, inasmuch as a-t the time of the commencement of the Woodhead suit, and afterward, the Bank was the lawful assignee of the Buffington note and mortgage, it was a necessary party, and not being made a party its rights are not affected by. the judgment. The proposition rests for authority upon Holliger v. Bates, 43 Ohio St., 437, decided by this court at the January term, 1885. It is there held that where a senior mortgagee forecloses his mortgage and sells the property without making a junior mortgagee a party, or giving him notice, the purchaser acquires his title subject to the right of redemption by the junior mortgagee, and the same rule applies where the junior mortgagee has assigned all his interest in the mortgage and the note secured by it to a third person who is not a party and is without notice of such proceedings and sale; that the latter may foreclose and sell, and the fact that he did not take a written assignment of the mortgage and have it recorded does not defeat the mortgage, nor estop, him from foreclosing.' It is probable that the judgment of the circuit court was based upon that decision. Upon full consideration, however, we are satisfied that this case does not rule the case at bar. A number of points of distinction as to the facts may. be noted. The notes secured by the mortgage in that case were not due at the time of the sale, which fact is specially emphasized by the learned judge who reported the case; in the case at bar the note was due. Another distinction is that in the former case the owner of the notes secured by the second mortgage was a bona fide purchaser before maturity and for value; in this case the note and mortgage were transferred to the Bank as collateral security for a preexisting debt, thus leaving the Bank to have recourse upon Buffington, its assignee. A further distinction is that the purchaser in the former case at judicial sale remained the owner until the action to foreclose the second mortgage was commenced, while in the case at bar the title had passed to successive purchasers, all of whom purchased after the entry was made on the mortgage record by the clerk showing that the Buffington mortgage had been satisfied by foreclosure and sale. In the former case the purchaser could be made whole by being subrogated to the rights of the lienholders to the extent of the purchase price paid by him, while in this case at bar Pinney would be limited in his right of subrogation to such right as was vested in Francisco, without reference to the amount he himself paid as purchaser. It is not to be forgotten, also, that in this case the Bank had knowledge within a few weeks after Francisco purchased, of the proceeding and sale, and yet it kept still and made no demand for over five years, knowing, or having the means of knowing, that Francisco, the purchaser, was in possession, and that extensive and valuable improvements were being made and that innocent purchasers were buying property on the faith that the proceedings and sale insured a good title. While it is probable that it was too late , then to overturn the judgment and sale, it was not too late to advise the purchasers of its claim and thus arrest the expenditure of raoney in improvements and in the payment of purchase money, and good faith required that it should speak out.

But a more vital distinction arises from the change in the statute law. At the time of the Holliger v. Bates decision there was no provision of statute which authorized the entering of an assignment of a mortgage in the mortgage record in the recorder’s office, and what legal effect would have been given to such entry had such been made we need not here discuss. But the amendment to. section 4135, Be-vised Statutes, of April 16, 1888 (85 O. L., 284), permits such assignment to be entered on the record direct, or recorded where such assignment is on the mortgage itself, and making it the duty of the recorder, where a release is intended by the assignee, to record on the margin the assignment before entering the release. What is the scope and purpose of this legislation? We think it is in furtherance of the purpose expressed by this court in Coe v. Erb, 59 Ohio St., 259, where it is said that the recording acts “rest upon a recognition of the policy that there shall somewhere be found a record which will disclose the state of the title of all lands within the county. For conveyances, mortgages, leases, etc., resort is had to the office of the county recorder, ’ ’ etc. # * * “ The business public, therefore, has a high interest in the maintenance of such a system as will enable every person, by the ordinary inquiry, that is an examination of the records, to ascertain the condition of titles.”

The necessity and wisdom of such legislation is still more apparent when we consider the method pursued in obtaining loans by mortgage on land. In the great majority of cases it is now done through agents or brokers. The notes and mortgage are taken in the name of the agent. The notes he transfers by indorsement without recourse. On the mortgage he signs both the printed blank assignment and the printed blank release, and in this condition the papers are delivered to his customer. After this the securities may, and often do, pass from hand to hand, frequently being sent out of the state. In such cases when the mortgage is satisfied the blank release is filled up and it is then entered of record as the act of the mortgagee, the agent, the real owner not appearing of record anywhere in the transaction. It results that it is exceedingly difficult, sometimes practically impossible, to ascertain the real owner of the claim. To put this burden on those who have other claims upon the land and especially upon those who have prior liens, is unreasonable, and to require them, in case of foreclosure, to ascertain at their peril the then owner of the junior claim is unjust as well as unreasonable. Much fairer is it to require that the assignee of the' mortgage, if he is not satisfied to rest upon the good faith of the assignor, to put his assignment upon the record so that the world can see, and this we believe is the purpose and the proper construction of. the amendment of April 16, 1888. Such construction is in furtherance of the purpose indicated in the citation from Coe v. Erb, supra, and entáils no. serious hardship upon anyone. It is but the application'of an equitable principle that where one of two innocent parties must suffer the loss should fall upon him who has, by his negligence, permitted one to repose confidence in a public record which fails to speak the whole truth.

Our conclusion finds support, we think, in the case of Swartz v. Leist, 13 Ohio St., 419. It is there held that “where the mortgagee, retaining the legal interest in the mortgage, subsequently enters satisfaction and a discharge upon the record of the mortgage, such discharge operates to cancel the record of the mortgage, as against subsequent purchasers and mortgagees in good faith, and without notice; and as against them, the assignee of the note can not assert his equitable lien. ” It is true that the statute authorizing the entry of a release upon the mortgage record more fully expresses the purpose of the legislature with, respect to the effect of such entry than is expressed by the clause which applies to an assignment of the mortgage, but the purpose is the same; it is to secure.a record which will apprise all interested of the real condition of the title with respect to incumbrances. In the case above cited the holder of the note (Swartz) negligently permitted the mortgagee (Little) to, retain the legal title and omitted to indicate upon the record the fact of his equitable title, thus leaving the latter the power of control over it. Leist, the purchaser, having no reason to suspect fraud, was held to be justified in relying upon the record as speaking the truth, and therefore in regarding the release as legally made; so in the case at bar, the Bank had the right under the statute, to have its assignment entered of record,' which would have been notice of its equitable rights under the assignment to other mortgagees and subsequent purchasers. The means were thus at its hand to protect its own interest and to prevent others from being misled. Ordinary diligence required this. But it negligently permitted the record to indicate that Buffington remained the owner of the claim, and parties interested innocently relied upon that record. We think that the statute justifies,. and that fair dealing requires, the rule that where the recording act authorizes the assignment of mortgages to be recorded, and the assignment is duly entered of record, such record shall be held to be notice to mortgagees and subsequent purchasers, but wh^re such assignment is not so entered, mortgagees and subsequent purchasers in the absence of noticeA>therwise are justified in relying upon the record as they find it and in acting accordingly. As in the Swartz case that party was left to bear the loss, so in this case the Bank should be held to bear the loss. Childs v. Childs, 10 Ohio St., 339, and Stewart v. Johnson, 30 Ohio St., 24, are cited. Neither case touches the question we have here.

The circuit court committed no error in its judgment as to John D. Lamb.

Respecting the controversy affecting the plaintiff in error, the conclusion hereinbefore indicated renders it unnecessary for us to discuss the claims as to expenditures for improvements and taxes, and the matter of rents and profits. Plaintiff in error is entitled not only to a judgment of reversal but to a final judgment quieting his title against the Bank, and dismissing the petition of the Bank, and for costs, and judgment will be so entered accordingly.

Judgment reversed and judgment for plaintiff in error.

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


author: Summers, J.

text:
    The State of Ohio v. French.

      Protection of fish — Legislature may provide for — Nets may he destroyed — Section 6968-2, Revised Statutes — Act of April 26, 1898 — Valid—Rights of property — Constitutional law.

    The legislature may provide for the protection of fish and to that end may declare nets set or used contrary to law a public nuisance and that they may he destroyed by wardens and other executive officers, and section 6968-2 of the Revised Statutes, as amended April 26, 1898 (93 O. L., 303), is not in that respect unconstitutional on the ground that it deprives the citizen of his property without due process of
    (No. 9038
    Decided January 3, 1905.)
    Error to the Circuit Court of Ottawa county.
    In November, 1898, certain fish nets, the property of the defendant, set in one of the bays or estuaries of Lake Erie in this state, were destroyed.
    On May 10, 1902, the general assembly passed an act entitled “An act to authorize claimants for damages and rebate of license fees under an act passed April 26, 1898, entitled ‘An act for the further and better protection of fish and game’ (O. L., v. 93, 303-307), to sue the state of Ohio.” (95 O. L., 498.) The act authorized a suit against the state by any resident whose nets had been destroyed under authority of the act of April 26,1898, entitled “An act for the further and better protection of fish and game” (93 O. L., 303), for such damages as he may have sustained not exceeding the value of the property destroyed providing the act (last referred to) should be declared in violation either of the constitution of Ohio or of the United States.
    The defendant brought suit averring the summary destruction of his nets by a deputy fish and game warden under said act of 1898 and that said- act is void because in contravention of the constitution of Ohio and of the constitution of the United States in that it authorized the taking of property without due process of law.
    The act of April 26, 1898, entitled “An act for the further and better protection of fish and game” (93 O. L., 303), among other matters provides, “Any net, or any other means or device whatever for taking or capturing fish, or whereby they may be taken or captured, located, set, put, floated, had, found or maintained, in or upon any of the water or streams of this state, or upon any boat engaged in fishing in any waters of this state, in violation of any law enacted for the protection of fish, is hereby declared to be, and is, a public nuisance, and may be abated and summarily destroyed by any person. And it shall be the duty of every game warden, deputy game warden, sheriff, constable, or other police officer, to seize and remove, and forthwith destroy the same; and no action for damages shall lie or be maintained against any person for or on account of any such seizure or destruction. ’ ’
    The state filed an answer containing two defenses: First, that the act of 1902 was unconstitutional; and second, a general denial.
    The trial court held the act of 1898 unconstitutional, and French recovered a judgment for the value of his nets. The circuit court affirmed the judgment and error is prosecuted to this court.

      Wade II. Ellis, attorney general, and J. M. Sheets, for plaintiff in error.
    (1) There is no evidence to support the verdict of the jury and the judgment thereon.

      (2) The act of May 10,1902 (95 O. L., 408), is an unconstitutional enactment.
    This act, which purports to confer upon residents, of the state of Ohio the right to sue the state to recover for loss of nets or for license fees paid, is in conflict with the provisions of article 1, section 2, article 1, section 16 and article 2, section 28 of the constitution of Ohio; also is in conflict with the provisions of article 4, section 2 of the constitution of the United States; and is in conflict with section 1 of the fourteenth amendment to the constitution of the United States.
    These several provisions guarantee to all persons equal protection of the laws, and the same right to' appeal to the courts for redress of grievances. Hence the act of May 10, 1902, which limits the benefits of its provisions to residents of the state of Ohio, is in conflict with these constitutional guarantees. Cooley,. “Principles of Constitutional Law,” 187; Story on the Constitution, sec. 1806.
    Counsel for defendant in error sought in the courts, below to answer these arguments by drawing a distinction between the word “citizen” and “resident,” for the reason that article 4, section 2 of the constitution of the United States uses the word “citizen” while the statute in question uses the word “resident.”
    In a great majority of instances this is a distinction without a difference. A citizen of another state is in almost every instance a nonresident of Ohio. If then, counsel is right in his contention that using the word “resident” in the statute instead of the word “citizen” frees it from constitutional objection, all a state seeking to deny the right of citizens of other states to appeal to her courts for redress of griev.anees, would be to enact a law to the effect that its •courts should be open to nobody but residents of the estate for redress of grievances.
    The act of May 10, 1902, is retroactive, consequently in conflict with article 2, section 28 of the constitution of Ohio, which provides that “the general .assembly shall have no power to pass retroactive laws. ’ ’
    It is needless to say that the state is as much protected by the provisions of the constitution as are the people, and that the act in question is a clear effort to create an obligation against the state where none existed before. Rairden v. Holden, 15 Ohio St., 207; Railway Co. v. Commissioners, 35 Ohio St., 1; Cooley’s Constitutional Limitations, 528
    "VVe deem it unnecessary to accumulate authorities upon the subject for the reason that the proposition is too well settled.
    Take then the act under review; the state of Ohio was under no obligation either legally or equitably to pay fishermen for nets destroyed by the game wardens and their deputies. If the law authorizing the game wardens and their deputies to destroy nets found in illegal fishing were held by the courts to be unconstitutional, the only remedy of the fishermen, whose nets were destroyed, would be an action for damages against the wardens and their deputies: The state of Ohio is a stranger to the transaction. With as much propriety could the legislature undertake to pass a law authorizing those who sustained such damages to sue Ottawa county as to sue the state of Ohio. As well might the legislature have passed an act authorizing all residents of the state ■of Ohio, who had sustained losses in some particular railroad wreck to sue the state for the losses thus-sustained.
    In answer to these arguments it was claimed in the-courts below that as the legislature1 might have appropriated money to pay the claims of any or all of the persons whose nets were destroyed, the power to-authorize these same persons to sue the state for these claims can not be questioned. But has the legislature the constitutional power to appropriate the general revenues of the state to such purpose? - In other words, has the legislature the power to make a. donation of the revenues of the state?
    We think these questions are answered in article 1,. section 2 and article 12, sections 4 and 5 of the-constitution.
    If government is instituted for the ‘ ‘ equal protection and benefit” of the people as is provided in article 1, section 2, then the legislature cannot enforce contributions from the people in the form of taxes to be used in making donations to the persons-it may select as the recipients of its bounty.
    The power of the legislature over the revenues of the state is further limited by the provisions of article 4, section 5, of the constitution, which provides that, “No tax shall be levied except pursuant to law; and every law imposing tax shall state distinctly the object of the same, to which only, it shall be applied.” Debald v. Trust Co., 1 Ohio St., 563.
    These principles are elementary and need no-' elaboration. Hence it follows as a necessary conclusion that as the legislature is limited in its power of taxation to “raising sufficient revenue to defray the expenses of the state, ” so it is limited in its power of appropriating revenues to paying the expenses of the state.

      The act of April 26, 1898 (93 O. L., 303), is a constitutional and valid enactment.
    The only part of this act which has been assailed and held to be unconstitutional by the lower courts is the provision declaring nets used in illegal fishing to (be a public nuisance and authorizing the abatement of the nuisance by a destruction of the nets. This provision is contained in section 6968-2, Revised Statutes.
    It is claimed by counsel for defendant in error that there is no material difference between this act and section 6968 as amended February 17,1892 (89 O. L., 26), which was declared unconstitutional in the case of Edson v. Crangle, 62 Ohio St., 49.
    In our view of the case there is a very material difference between the two acts. The act of April 26, 1898, declares nets used in illegal fishing to be public nuisances and authorizes their abatement by destruction, while the act of February 17, 1892, provided that nets used in illegal fishing “shall be confiscated wherever found and the same shall be sold to. the highest bidder at public outcry and the proceeds derived from such sale shall be placed to the credit of the fish and game fund;” but made no provision for condemnation proceedings.
    The act declaring nets used in illegal fishing to be a public nuisance and authorizing the summary abatement of the nuisance by a destruction of the nets so used, is but the application of the principles of the common law to a new subject. It is an elementary principle of the common law that a public nuisance may be summarily abated. And in abating such nuisance it may be done in such manner as is most convenient, even by a destruction of the property causing the nuisance.

      It will be observed that the statute in question is almost a literal copy of the statute of New" York on the same subject, which was held in the case of Lawton v. Steele, 119 N. Y., 226, to be a constitutional and valid enactment. That case was taken to the Supreme Court of the United States where the judgment of the court of appeals was affirmed. Lawton v. Steele, 152 U. S., 133; Bittenhaus v. Johnston, 92 Wis., 588; 2 Tiedeman’s Police Power, 761.

      Mr. George A. True, for defendant in error.
    The defendant in error contends:
    First: There is evidence to support the verdict of the jury and the judgment rendered thereon.
    Second: That the act of May 10, 1902 (95 O. L., 498), which provides that any resident of the state of Ohio, whose fishing devices were seized and destroyed by virtue of the act of April 26, 1898, etc., may sue the state of Ohio in its courts, etc., is a constitutional and valid enactment.
    Third: The act of April 26,'1898 (93 O. L., 303), which provides for the summary destruction of fishing nets is unconstitutional and void, being in conflict with section 16, article 1 of the constitution of this state and with article 5 of the amendments to the constitution of the United States.
    The act of May 10, 1902 (95 O. L., 498), is a constitutional and valid enactment.
    Briefly stated, the act provides that any resident of the state' of Ohio, whose fishing devices were seized, etc., may sue the staté of Ohio, in its courts * * * for the recovery of damages which resulted from any seizure, injury or destruction of any fishing devices, etc. No damages shall be included in the verdict or judgment to exceed thé' value of the property destroyed, etc., and it is made the duty of the attorney general of the state and the prosecuting attorney of the county to attend to all such suits on behalf of the state.
    This act is not in conflict with article 1, section 2, or article 1, section 16, and article 2, section 28, of the constitution of Ohio, nor is it in conflict with article 4, section 2 of the constitution of the United States, nor section 1 of the fourteenth amendment of the constitution of the United States.
    Since the adoption of the eleventh amendment to the constitution of the United States, a state of the Union cannot be sued by any private person without the consent of the state. Black’s Constitutional Law, 130. The same rule applies to the United States, which cannot be sued without its own consent. Black’s Constitutional Law, 129.
    The right to sue the state is not one of the privileges and immunities granted to the citizens of the several states by the federal constitution nor does it deny to any person within the jurisdiction of the state the equal protection of the laws, but is a mere consent or privilege which a sovereign state may give to an individual.' A state may waive this privilege and permit an individual to sue it and may prescribe the terms and conditions on which it consents to be sued and the manner in which the suit shall be conducted and may withdraw its consent whenever it may suppose that justice requires it. The state may give this consent to whomsoever it sees fit without violating any provisions of the constitution of the state or of the United States. Beers v. Arkansas, 61 U. S. (20 How.), 527; Ex parte State, 52 Ala., 235; Warder v. Commissioners, 38 Ohio St., 639.

      The state may grant to its own citizens the exclusive fishing privilege in the waters of the state and prohibit, under penalty, their use for fishing purposes by citizens of another state. McCready v. Virginia, 94 U. S. (4 Otto), 391.
    A state may prevent a citizen of another state from taking fish in the waters of the state. Massachusetts v. Manchester, 9 L. R. A., 236; Welsh v. Indiana, 9 L. R. A., 664; Blair v. Kilpatrick, 40 Ind., 315; Robinson v. Navigation Company, 2 L. R. A., 636.
    In this state we have various statutory provisions which discriminate between residents and nonresidents. Section 5441 provides that residents of the state may take advantage of the exemption of $500 in lieu of a homestead. Plaintiff in a divorce case must have been a resident of the state for at least one year. Marriage licenses are governed by residence. Statutes requiring nonresidents to give security for costs, compelling nonresidents to pay a license fee to take game in the state, statutes discriminating between resident and nonresident corporations, election laws, school laws, service by publication upon nonresidents, issuing attachments against nonresidents, etc.
    One cannot complain that a statute is not constitutional as being a denial of the equal protection of the law unless he belongs to one of the classes discriminated against. As a matter of fact there are no nonresidents of the state who had any fishing nets destroyed or paid the illegal license fees and there is, therefore, no one to be discriminated against. France v. State, 57 Ohio St., 1.
    The fact is that in this case there are no persons other than residents of the state who have had their fishing nets confiscated and destroyed and there are therefore no persons who can raise this question. Kansas City v. Railroad Co., 53 Pac. Rep., 468; Antoni v. Wright, 22 Grat., 833; Coffin v. Portland, 27 Fed., 412; State v. Snow, 3 R. I., 64.
    Said act of May 10, 1902 (95 O. L., 498), which authorizes this action against the state is not retroactive and is not in conflict with article 2, section 28 of the constitution of Ohio, which provides that “The general assembly shall have no power to pass retroactive laws.”
    This act does not create a liability but merely prescribes the mode of finding the amount due the claimant and prescribes the manner of allowing the claim. It requires another act of the legislature to appropriate money for the payment of the claims, by a two-thirds vote of the general assembly. Fordyce v. Godman, 20 Ohio St., 1 (Morgan Raid Case); State ex rel. Bates v. The Trustees, and State ex rel. Boyer v. Circleville, 20 Ohio St., 362.
    The inhibition contained in section 28, against the passing of retroactive laws, is absolute. “The general assembly shall have no power to pass retroactive laws. ” Yet, notwithstanding this denial of power to pass retroactive laws, the power of the legislature to pass laws to provide for and pay claims which have no legal foundation, is clearly recognized in section 29; provided such laws receive the assent of the requisite number of members of the legislative body.
    Article 2, section 29- of the constitution of Ohio provides “nor shall any money be paid or any claim the .subject-matter of which shall not have been provided for by pre-existing laws, unless such compensation or claim be allowed by two-thirds of the members elected to each branch of the general assembly.”
      State ex rel. v. Hoffman, Auditor, 35 Ohio St., 435; New Orleans v. Clark, 5 Otto, 644; Warder v. Commissioners, 38 Ohio St., 643; State ex rel. v. Hoffman, 35 Ohio St., 435; State ex rel. v. Trustees, 20 Ohio St., 362; Board of Education v. McLandsborough, 36 Ohio St., 227; People ex rel. v. Burr, 13 Cal., 343; Beals v. Amador County, 35 Cal., 625.
    This act authorizing suit against the state places it with the judiciary to determine the extent and amount of the claim against the state. Board of Education v. State, 51 Ohio St., 531.
    We do not deny the power of the general assembly to inquire into the merits of any claim sought to be asserted through its agency, before granting relief to the claimant by legislative action. Not only has it such authority, but its exercise should be carefully and rigidly observed.
    Such investigation, subsequent determination and resulting action, however, do not estop the parties from appealing to those judicial tribunals of the country that have been established under our constitution and by it vested with judicial power of the state, and by our laws provided with an appropriate procedure to conduct such inquiries. Cooley’s Constitutional Limitations, 115, and cases cited; 3 Am. & Eng. Eney. Law, 681.
    If, in the case under consideration, the relator paid out money for the benefit of the respondent, for which, by some mistake, accident or error, he has never received credit, it is morally bound to make it good and this moral obligationils sufficient to support the statute in question. Lewis, Trustee, v. McElvain, 16 Ohio, 355; Trustees v. McCaughey et al., 2 Ohio St., 152; Burgett et al. v. Norris, 25 Ohio St., 308; Rairden et al. v. Holden, Admr., 15 Ohio St., 207;
      Cass Township v. Dillon, 16 Ohio St., 38; State ex rel. Anderson v. Commissioners, 17 Ohio St., 608; Board of Education v. McLandsborough, 36 Ohio St., 227; Cooley on Taxation, 127-8; Cooley’s Constitutional Limitations, 283.
    Where, however, the facts out of which a moral (or legal) obligation is claimed to rise, are disputed, the contention falls within the province of the courts, under the distribution of government powers prescribed by our constitution. Section 1 of article 4 of the constitution of 1851.
    The claim of the defendant in error is founded in justice and the state is morally bound to pay the claim.
    The fish and game wardens pretending to act under the unconstitutional act of April 26, 1898, confiscated and destroyed the property of the defendant in error of the value of $930.00. The nets were being fished in a lawful place and he should have had his day in court to determine this fact before losing his property. All of these constitutional guaranties were denied him. The persons who destroyed the nets are insolvent and irresponsible and were pretending to act under said act of April 26,1898, which authorizes the summary destruction of fishing nets and further provided that no action for damages shall lie or be maintained against any person for or on account of any such seizure or destruction.
    This is therefore clearly a case where the claim is founded in justice and there is at least a moral obligation on the part of the state to provide for the allowance of the claims in the first instance and the payment of the claim by an act hereafter to be passed.
    In the case of Commissioners v. Rosche Bros., 50 Ohio St., 103, which appears to be the authority relied upon by plaintiff in error, tbe court very clearly makes a distinction as to a statute enacted in tbe furtherance of natural justice and tbe court recognize the principle laid down in tbe case of' tbe Board of Education v. State, 51 Ohio St., 531, supra, and tbe long list of authorities just given and merely bolds that tbe claim under consideration in that case was not founded in justice. State ex rel. et al. v. Gibson, Treasurer, 15 Dec. 73 (affirmed by tbe circuit court, 26 O. C. C., 784, wherein tbe above case was reviewed and followed).
    Tbe act of April 26,1898 (93 O. L., 303), being section 6968-2 of tbe Revised Statutes of Obio, is unconstitutional and void, being in conflict with section 16, article 1 of tbe constitution of this state, for tbe reason that it confiscates property without due process of law, and it is also in conflict with tbe amendments to the federal constitution.
    This act has been held unconstitutional in the case of Yensen v. State, 9 Ohio Dec., 168; 7 N. P., 18; and in the case of French v. Shirley et al. and Snyder v. Shirley et al., 9 Ohio Dec., 181; 7 N. P., 26. Although these decisions are by courts of common pleas, they are worthy of consideration by reason of tbe care and time devoted to them by the able trial judges. This court in tbe case of Faloon et al. v. Snyder, 65 Ohio St., 560, held tbe law of 1896 (92 O. L., 385), which was a similar statute to tbe one in question in this case to be unconstitutional and void.
    Tbe court will observe that tbe act of 1896 was very similar to the act of 1898 and provided that all such nets and other devices for catching fish was thereby declared a public nuisance and shall be forfeited to the state. These were cases brought by fishermen against tbe state fish and game commissioners and state wardens, personally, for seizing and carrying away fishing nets. The trial court charged the jury that the act above referred to (92 O. L., 385) was unconstitutional and void because it deprived the plaintiffs of their property, without due process of law. The cases resulted in a judgment for plaintiffs for the value of their nets and of the fish liberated. The defendant commissioners and state warden prosecuted error to the circuit court and Supreme Court. The principal ground of error was that the statute was constitutional and not unconstitutional, and counsel for plaintiffs in error in those cases relied upon the same authorities relied upon by plaintiff in error in this case, and particularly the case of Lawton v. Steele, 119 N. Y., 226; Lawton v. Steele, 152 U. S., 133. This court affirmed the judgment in both of these eases.
    In the case of Edson et al. v. Crangle et al., 62 Ohio St., 49, the court held a similar statute to be unconstitutional.
    Such statutes to be constitutional should not only provide the right of confiscation, but should also provide the remedy, and then such remedy would be exclusive. Commissioners v. Bank, 32 Ohio St., 194.
    In this case the counsel for plaintiff in error relied upon the case of Lawton v. Steele, supra. This court refused to follow the same.
    Plaintiff in error concedes that Mr. French had his right of action to determine whether the nets were or were not in such unlawful use. In this case Mr. French’s nets were destroyed before he had had any day in court. He was afterwards arrested for illegal fishing and the court of common pleas held that he was fishing in a legal manner and in a lawful place, and discharged him. The statute in question does not give .a person any opportunity to determine whether the nets were or were not used unlawfully. The court in the case of Bittenhaus v. Johnston, 92 Wis., 588, holds that .the plaintiff had his right of action to determine whether the nets were or were not in such unlawful use. Deck v. Anderson, 57 Col., 251; 40 Am. Rep., 115.
   Summers, J.

That part of the act of 1898 above quoted is copied almost literally from the act of the legislature of New York and, but that it is thought proper to point out the difference between the statute under consideration and the statute passed upon in Edson et al. v. Crangle et al., 62 Ohio St., 49, its validity might be rested, without more, upon the authority of Lawton v. Steele, 119 N. Y., 226; Lawton v. Steele, 152 U. S., 133.

In the ease in the Supreme Court of the United States it is decided: “It is within the power of a state to preserve from extinction fisheries in waters within its jurisdiction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish.

“The provision in the statutes of New York, c. 591 of the laws of 1880, as amended by c. 317 of the laws of 1883, that nets set or maintained upon waters of the state, or on the shores of our islands in such waters, in violation of the statutes of the state enacted for the protection of fish, may be summarily destroyed by any person, and that it shall be the duty of certain officers to abate, remove, and forthwith destroy them, and that no action for damage shall lie or be maintained against any person for or on account of such seizure or destruction, is a lawful exercise of the police power of the state, and does not deprive the citizen of his property without due-process of law, in violation of the provision of the-constitution of the United States.”

This disposes of the contention that the act violates the constitution of the United States on the-ground that it deprives a citizen of his property without due process of law; and also of the same contention respecting the constitution of Ohio, unless there-is a difference, and there is not (Cooley’s Constitutional Limitations, 47, 431) in the two instruments, respecting due process of law.

What is said in Railroad Co. v. Keith et al., 67 Ohio St., 279, to the effect that the provision of our hill of rights respecting due course of law was-adopted to get rid of the imperfections and injustice-of the common law, seems to have been said inadvertently. In Weimer v. Bunbury, 30 Mich., 201, Cooley, J., says: ‘ ‘ The truth is that hills of rights-in the American constitutions have not been drafted for the introduction of new law, hut to secure old principles against abrogation or violation. They are conservatory instruments rather than reformatory. ”

And in Lawton v. Steele, 119 N. Y., 226, 237, Andrews, J., says: “These authorities sufficiently establish the- proposition that the constitutional guaranty does not take away the common law right of abatement of nuisances by summary proceedings, without judicial trial or process.” Again on page 238 he says: “But as the legislature may declare nuisances, it may also, where the nuisance is physical and tangible, direct its summary abatement.by executive officers,, without the intervention of judicial proceedings, in cases analogous to those where-the remedy by summary abatement existed at common law. ’ ’

The criticism of the opinion in Lawton v. Steele, 152 U. S., 133, that it upholds a statute admittedly violative of the constitution by applying the maxim iíDe minimis non curat lex” is, it seems to me, based entirely upon a misconception. The learned justice says the constitutionality of the legislation was sustained by the court of appeals of New York upon the ground of its being a lawful exercise of the police power of the state, and. speaking of the exercise of the power, he says: “To justify the state in thus interposing its authority in behalf of the public, it must appear, first that the interests of the public generally,'as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals;” and having shown that the preservation of game and fish is within the police power he proceeds to- consider whether the act, in that it provided that nets used in violation of its provisions are public nuisances and may be summarily destroyed by any person, will bear the test of the second rule, namely, “that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.” In the determination of that question the value of the property was a very proper matter for consideration.

In Edson et al. v. Crangle et al., 62 Ohio St., 49, the statute under consideration provided that any nets set in violation of its provisions should be confiscated wherever found and sold to the highest bidder and the proceeds placed to the credit of the fish and :game fund. The statute provided for a seizure and -an appropriation of the nets, hut failed to provide any legal procedure whereby they might he adjudged to be confiscated and on that ground the statute was held void as not providing due process of law, and the judge writing the opinion expressly pointed out that the statute did not declare the nets a public nuisance to he summarily abated.

Being of the opinion that the act of 1898 is not unconstitutional on the grounds upon which the ■question is raised it is unnecessary to consider the ■constitutionality of the act of 1902, or the other ■ questions raised by the answer.

Judgment reversed and judgment for plaintiff in ■error.

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