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    The State of Ohio ex rel. Knisely et al. v. Jones et al.

      Persons succeeding defendants in office — Without authority to possess property of the office — Unless act of appointment is valid — Construction of legislative acts — Classification of cities repugnant to section 1 of article IS of constitution — Act to organize and support police force of a city confers corporate power — Act of April 27,1902, is void — Query as to section 6 of article 12 of constitution — Toledo police hill — Constitutional law.

    1. Persons claiming to be the appointed successors of defendants in office, and to be entitled to the possession of property pertaining to such office, are without authority to make the relation in an action in mandamus to compel its delivery to them, unless the act under which they were appointed is valid.
    2. All legislative acts relating to the same subject-matter should be construed together; and, since all the acts relating to the classification of municipalities and their reclassification, and the division of classes into grades, evince the legislative intention that municipalities having substantially the same conditions and characteristics shall not enter and remain in the same class, such acts are ineffectual to designate classified recipients of corporate power, and an act to confer such power upon a single city, by such classification, is repugnant to section 1 of article 13 of the constitution, which ordains that: “The general assembly shall pass no special act conferring corporate powers.”
    3. A legislative enactment to provide for the organization and support of a police force for a city, the expenses thereof to be paid by a tax levied upon all taxable property within such city, confers corporate powers.
    4. The act of April 27, 1902, providing for the reorganization of the board of police commissioners of the city of Toledo, and the appointment of such commissioners by the governor, being a special act conferring corporate powers, is void.
    5. Whether the provisions of the 6th section, of article 13, ordaining that: “The general assembly shall provide for the organization of cities, and incorporated villages, by general laws,” is an exclusive classification of municipalities into cities and villages, we do not determine.
    6. Nor do we determine whether the act referred to is void because violative of the principles of local government, or because conferring upon the governor powers which he is not competent to receive and exercise.
    (Decided June 26, 1902.)
    In Mandamus.
    In the petition it is alleged that on the 2nd day of May, 1902, the relators were, by the Honorable George K. Nash, governor, duly appointed and commissioned as city police commissioners of the city of Toledo, and that upon the day following they qualified and organized as required by law, their appointment and qualifications being pursuant to the provisions of an act passed by the general assembly on the 27th day of April, 1902, and to take effect upon its passage.
    The petition further shows that the defendants were the duly constituted board of police commissioners of the city of Toledo prior to and upon the day of the passage of said act, holding office under sections 1984 and 1985 of the Revised Statutes, which were repealed by the terms of the third section of the act of April 27, 1902.
    The defendants are in the possession of the office, and of all the books, papers, and other property of the police department of Toledo. After their qualification as aforesaid, the relators demanded of the defendants the delivery of said books, papers and property, which the defendants refused, then claiming to be entitled to the custody thereof, and to the exercise of all the functions of said office, notwithstanding the passage of said act. The prayer of the petition is that a writ of mandamus may issue, commanding the defendants to deliver all of said property to the relators. The cause is submitted on demurrer to the petition.
    The act of April 27th is entitled, “An act to amend, supplement, and repeal certain sections of subdivisions three, of chapter five, division five, title twelve, of the Revised Statutes of Ohio.” In terms it amends section 1984 so as to provide as follows:
    “All police powers and duties connected with and .neident to the appointment, regulation and government of a police force in cities of the third grade of the first class, shall be vested in and exercised by a board of police commissioners, to be appointed by the governor. The governor shall appoint, as such commissioners, four citizens, electors of such cities, respectively, well known for their intelligence and integrity, not more than two of whom shall be of the same political party; two of whom of different political party faith and allegiance, shall be designated in their appointment to serve for two years, and the other two, also of different political party faith, shall be designated to serve for four years. And, thereafter, at the expiration of such term, and at each period of two years, the governor shall appoint two members of said board, to serve for a period of four years.
    “For official misconduct, the governor may remove any of said commissioners; and all vacancies in said board by death, resignation or removal, shall be filled by the governor for the unexpired term; and all vacancies from whatever cause, sjiall be so filled that not more than two of the members of said board shall be of the same political party, or so reputed. The commissioners, before entering upon their duties, shall take and subscribe an oath, Avhicli shall be filed and kept in the office of the city clerk, to support the constitution of the- United States and of the state of Ohio; to obey the laws, and in all their acts and official actions and judgments, to aim only to secure and maintain an honest and efficient system of police, free from partisan dictation and control.”
    It also provides in detail for the qualification and appointment of officers of the police force, fixing their salaries, as Avell as the qualification and compensation of patrolmen. For the government of said police it embodies, by reference, numerous other sections of the statutes. By the second section, it provides for the delivery, by the commissioners then holding office, of all books, papers, property and appurtenances of the police department in their hands and under their control, to the police commissioners so appointed by the governor, this delivery to be made within five days after the appointment. The third section, in terms, repeals the former law upon the subject.

      Mr. J. M. Sheets, attorney general, and Messrs. Doyle é Letois, for relators.
    There will be no inquiry here as to the wisdom of the law; none as to policy of making this an appointive instead of an elective office; none as to the comparative merits of the members of the old and new boards. There is only the question of the poAver of the general assembly to pass the act, and that only if the defendants in answer to dhe writ give that as the answer why they have not obeyed the alternative Avrit.
    In the inception of the argument Ave ask attention to the recent case of State v. Johnson, 35 Fla., 2; 31 L. R. A., 357, to the effect that the governor’s commission entitles relators to this remedy and that it can not be defeated by the claim that the defendant can not take advantage of a tenure of office prima facie ended and stand on that fact to claim to be in office de facto against the claims for the books and papers made by the holder of the prima facie title.
    As to mandamus, see Sec. 6741, Rev. Stat.
    Where the only cause of refusal to do an act which a valid law requires is doubt as to the constitutionality of the act existing in the mind of the person required to do the act, the excuse will not avail. Ryan v. Hoffman, 26 Ohio St., 109; Citizens’ Bank v. Wright, 6 Ohio St., 318; Railway Co. v. Clinton Co., 1 Ohio St., 77; State v. Auditor Darke Co., 43 Ohio St., 311.
    It is clearly the duty of the defendants specially enjoined-by the law, resulting from their office, trust or station, to deliver to these relators the books, papers, property and appurtenances of the police department in their hands and under their control.
    The proceeding in mandamus is a proper remedy. As it is a statutory proceeding in Ohio it depends entirely on the construction of the statute, and as that has not limited the right as it existed at common law, but extended it, the right is clear.

      The general assembly has the right to pass legislation terminating and abolishing the office held by these defendants, and to provide for the appointment of their successors, and to make provision for the last official act of the defendants to be the surrender of the books, papers, property and appurtenances of the department to their successors. If the right of the relators is clear then the right to the possession of the insignia of office is clear and may be enforced by mandamus. Spelling, Extraordinary Remedies, Sec. 1508; State v. Johnson, 18 L. R. A., 410; 30 Fla., 433; Thompson v. Holt, 52 Ala., 491; State v. Saxon, 25 Fla., 792; State v. Sherwood, 15 Minn., 221; Crowell v. Lambert, 10 Minn., 369; State v. Jaynes, 19 Neb., 161; People v. Kildoff, 15 Ill., 492; People v. Head, 25 Ill., 325; Stevens v. Carter, 27 Oregon, 553; 31 L. R. A., 342; State v. Dusman, 39 N. J. L., 677; People v. Hilliard, 29 Ill., 413 ; Lindsey v. Luckett, 20 Tex., 516; Metsker v. Neally, 41 Kan., 122; Harwood v. Marshall, 9 Md., 83; affirmed, 10 Md., 451; Stone v. Small, 54 Vt., 498; Lewis v. Whittle, 77 Va., 415; Fitzpatrick v. Kuby, 81 Va., 467; Bordgle v. Shallcross, 6 W. Va., 562; Strong, In re, 20 Pick., 484; Conlin v. Aldrich, 98 Mass., 557.
    The principle of the cases is this :
    It is the duty of every public officer, at the expiration of his official relation, to surrender to his successor the property of the office which the law has committed to his custody, as in such property he has no individual right or interest, the title to it residing in the public, and of that he is merely custodian during his continuance in office; the duty is ministerial merely, no matter on what officer it devolves, and at common law, its performance was enforcible by mandamus.
    Mandamus is not excluded or avoided by the mere fact that there is some other remedy, the law being that there must be no plain and adequate remedy, in the ordinary course of the law. Mandamus is the only adequate remedy for preventing the confusion in government matters in such cases. Thompson v. Holt, 52 Ala., 491; State v. Johnson, 30 Fla., 433.
    Mandamus is a writ to restore a party to an office from which he has been illegally excluded, and to cause its books, papers, etc., to be delivered to his possession. Nelson v. Edwards, 50 Tex., 389; State v. Bruce, 3 Brev., 264; 6 Am. Dec., 576.
    An officer whose term has expired may be compelled by mandamus to surrender to his successors all records, books and papers pertaining to his office, where such officer, on demand, refuses to deliver the same. Banton v. Wilson, 4 Tex., 400; Fasnacht v. Literary Assn., 99 Ind., 133; Warner v. Myers, 4 Ore., 72; Driscoll v. Jones, 1 So. Dak., 8; American Railway Frog Co. v. Haven, 101 Mass., 398; State v. Trent, 58 Mo., 571; Keokuk v. Merriam, 44 Iowa, 432; Prince v. Skillin, 71 Me., 366; Goff v. Wilson, 32 W. Va., 393; Walter v. Belding, 24 Vt., 658; State v. Oates, 68 Wis., 634; People v. Allen, 42 Barb., 203.
    This is not a contest of an election, nor is it in the strict sense the trial of the title to the office. The relators come here under this law of April 17, 1902, the only law in force on the subject, with the commissions of the governor, and their qualifications thereunder admitted. The repeal of the law under which the defendants held their office terminates their official life.

      In New Jersey it has been held that members of a public body holding over until their successors are elected and qualified are not officers de facto in such a sense that a mandamus should not be allowed against them. State v. Freeholders of Hundon Co., 35 N. J. L., 269; State v. Trenton Bd. Health, 49 N. J. L., 349; Baker, In re, 11 How. Pr., 418; North, In re, v. Cary, 4 Thompson, etc., 357; McGee v. State, 103 Ind., 444; Huffman v. Mills, 39 Kan., 577; Cunningham v. O’Connor, 12 La., 397; Harwood v. Marshall, 9 Md., 83; Cecil Co. Comrs. v. Banks, 80 Md., 321; State Building Loan Assn. v. Davis, 50 Mo. App., 447, 450; State v. Meeker, 19 Neb., 444.
    Quo warranto proceedings may determine finally the right to the office, but even then mandamus might have to be resorted to to get the books, papers and property. Driscoll v. Jones, 1 So. Dak., 8.
    Where the relators show their appointment, commission and qualification 'under the act, that will entitle them to the books, etc. See cases above cited. People v. Stevens, 5 Hill, 616; People v. Miller, 16 Mich., 56; State v. Dodson, 21 Neb., 218; Foley, In re, 8 Miss., 196; Cameron v. Parker, 38 Pac. Rep., 14; Lapointe (Supervisors of) v. O’Malley, 46 Wis., 35; State v. Vail, 53 Mo., 97.
    To the effect that the commission of the relators gives them the office prima facie and entitles them as against the old incumbents to the books and papers, we also cite and ask attention to Wenner v. Smith, 4 Utah, 238; Plowman v. Thornton, 52 Ala., 559; Thompson v. Holt, 52 Ala., 491; Conklin v. Cunningham, 38 Pac. Rep., 170.
    Where the duty is due from a public officer and to be performed at a particular time, the law imposing the duty is a continual demand for its performance, and the courts have gone so far in enforcing this duty as-to put defendants in default without demand, the default being in the nonperformance.
    In this case the law does not even require a demand for these books and papers, but makes it the affirmative duty of defendants to deliver them.. Demand, however, was made. Spelling, Extra. Rem., Sec. 1381, page 1192; State v. County Judge, 7 Ia., 186; State v. Jacksonville, 22 Fla., 21.
    There is nothing here but the statute.
    The defendants held their office under Secs. 1984, 1985, Rev. Stat. Those sections are repealed and on the 27th of April, 1902, ceased to exist as completely as if they never did exist. The defendants do not claim any other title to or foundation for their office. They are out of office. They can never be de jure officers.
    The relators claim title by virtue of the act of April 17, 1902, being the duly appointed and commissioned officers under that act.
    There is no other act or law in force.
    There is no one else claiming title under that law. Every presumption is in favor of the relators, 'and prima facie they are the officers; they are the officers de jure, and are also the officers de facto. They are exercising the duties and functions of the office under their commissions.
    There is no room here for the rule that the office is occupied de facto or is full de facto by title that may ripen de jure as against the relators, or that the writ is asked by a relator clearly out de facto to oust an incumbent who is clearly in. The relators are in de facto and de jure and want the insignia of the office from defendants whose terms have ceased.

      We stand on this act of April 17th and assert its constitutionality and validity. State v. Bailey, 37 Ohio St., 98; State v. Covington, 29 Ohio St., 102; State v. Baughman, 38 Ohio St., 455; State v. Hudson, 44 Ohio St., 137; State v. Smith, 44 Ohio St., 348.

      Cincinnati v. Covington, supra, was also expressly affirmed in State v. Shearer, 46 Ohio St., 275, upholding a special school act; and in McGill v. State, 34 Ohio St., 228, upholding a special jury law for Cleveland, the same principle was applied.
    It has been cited and approved in the following cases: State v. Mitchell, 31 Ohio St., 592; Bloom v. Xenia, 32 Ohio St., 461; State v. Hoffman, 35 Ohio St., 435; Railroad Co. v. Walrath, 38 Ohio St., 461; State v. Constantine, 42 Ohio St., 437; State v. Pugh, 43 Ohio St., 98; State v. Kiesewetter, 45 Ohio St., 254; Weil v. State, 46 Ohio St., 450; State v. Jacobi, 52 Ohio St., 66; Mason v. State, 58 Ohio St., 30.
    The author of the act has wisely avoided the only danger that might arise in case the Supreme Court ignored the doctrine of stare decisis and concluded to hold the classification by the present division into grades and classes of municipalities, to be an evasion of the constitution, and that special laws granting corporate power could not be passed and enforced.
    It has been ^asserted that this act can never apply to any city but Toledo. That, we assert, is not the effect of the act, but is a justifiable classification, if there is any such, and unless this court intends to go to the full length, that classification cannot be justified at all upon the plan of grading cities, under the authorities upon the subject this act must be sustained.
    This act gives to this board no authority to contract debts, levy taxes, make laws, issue bonds, appropriate lands, or private property. It simply vests in the board the powers and duties connected with appointment and regulation of the police force of cities of the third grade of the first class.
    There is not a sentence or word in the act that limits it, in its operation to any particular city, but it is peculiarly free from any such limitation.
    Such a construction should be given to a statute, when reasonable, as will uphold the statute, rather than one which will defeat it. Burt v. Rattle, 31 Ohio St., 116; State v. Buckley, 60 Ohio St., 296; Doyle v. Doyle, 50 Ohio St., 330.
    We are not asking for any extension of the doctrine of classification. We are not even pleading for any adherence to that doctrine where it applies to subjects of eminent domain, the levy of taxes, the enacting of penal laws or ordinances, the incurring of debt by issuing bonds, or otherwise, not even to the exercise of any corporate power whatever, as that term has been defined by the able men of the past who have honored the bench by their membership of this court. We still say that this law can be sustained without reference to its support on the doctrine of classification, but we say also that, upon both reason and authority, this classification is proper. There is no reason why the police board of every city in the state should consist of the same number, or be selected the same way. No such reason has been discovered in the half century during which we have lived under this constitution.
    There is force in the doctrine known as “Contemporaneous and practical construction of constitutions and statutes.” '
    To upset this law is to render void the police laws, in force and valid, by the express decisions of this court, in an unbroken line of cases in Cincinnati, Dayton, Columbus, Cleveland, Toledo, Springfield, Xenia, and other cities, leaving their police department in a condition of chaos, and without government.
    The effect of a practical construction, and long acquiescence by the people from whom emanated the constitution, and the force of the argument ab inconvenienti will be found in the decisions of this court in Work v. Corrington, 34 Ohio St., 64; State v. Vanderbilt, 37 Ohio St., 590; Brown v. Farran, 3 Ohio, 140, wherein the court quotes from Lord Coke, where this rule is applied even to Magna Oharta. Chesnut v. Shane, 16 Ohio, 599; Clark v. Board of Education, 44 Ohio St., 595; Dutoit v. Doyle, 16 Ohio St., 400; Moore v. Vance, 1 Ohio, 1; Biggerstaff v. Loveland, 8 Ohio, 44; Craig v. Fox, 16 Ohio, 563; Bank v. Swayne, 8 Ohio, 257. See also McPherson v. Blacker, 146 U. S., 1-13; Black Interp. Laws, Sec. 20, pp. 31, 32.
    Now, an unbroken line of decisions has sustained this classification, if we rely wholly on classification. But an unbroken line of decisions sustains this law, both upon and independently of the doctrine of classification.
    This interpretation of the constitution 'commences with Cass v. Dillon, 2 Ohio St., 607, and followed by Kelley v. State, 6 Ohio St., 269; State v. Kendle, 52 Ohio St., 346; State v. Cappeller, 39 Ohio St., 207; Cricket v. State, 18 Ohio St., 9; Hart v. Murray, 48 Ohio St., 605; Norton v. Trustees, 4 C. D., 422; 8 C. C. R., 335; State v. Turnpike Co., 37 Ohio St., 481; Neil v. Trustees, 31 Ohio St., 15; State v. Davis, 23 Ohio St., 434; Metcalf v. State, 49 Ohio St., 586; Marmet v. State, 45 Ohio St., 63; State v. Brewster, 39 Ohio St., 653; State v. Wall, 47 Ohio St., 499; State v. Hawkins, 44 Ohio St., 98; State v. Toledo, 48 Ohio St., 112; Scheer v. Cincinnati, 9 Re., 477; 14 Bull., 87; affirmed without report by the court, 15 Bull., 66, and many other cases.
    Is there anything left of the above doctrines? And to what extent, if at all, may reliance .be placed on half a century’s continuous acquiescence by the people, including the executive, legislative and judicial servants of the people.
    We do not believe in sham classification. We do not believe that classification which on one subject would be proper, is necessarily proper on all subjects.
    We do not believe in classifying cities in respect to the exercise of corporate power by any such arbitrary rule as the population at the last census, or having a navigable river in it, or which is so limited as that it can apply, at present and in the future, to but one city.'
    In so far as we have, if we have, departed from the “landmarks our fathers have set for us,” we believe in returning to them, but these mileposts were not located at once. They were established one mile at a time, and we are in danger of losing our way entirely in an effort to commence where they commenced and to rebulid them.
    Caring little, in this discussion, about the subject of classification generally, we only call attention to the fact that in the act of 1852, enacted immediately after the adoption of the constitution, Curwen’s Stat: utes, page 1847, Vol. 3, Secs. 40, 41 and 42, Municipal Corporations, were divided into classes, viz.-: Cities of the first and cities of the second class; incorporated villages and incorporated villages for special purposes. All cities of 20,000 inhabitants and upwards, at last census, were first class, and all others second class, and it provided for future advancements.
    But we are more especially concerned now with the. police board as a specialty. State v. Shearer, 46 Ohio St., 275, a case presenting a forcible way of putting into activity the doctrine of contemporaneous and practical construction, adverted to elsewhere. It is equally applicable to the question under consideration.
    We do not go back of the present constitution.
    In 1859, March 14, Curwen’s Statutes, Yol. 4, p.. 3198, the general assembly created a board of police commissioners for cities of the first class, containing a population of 80,000 inhabitants to consist of four persons to be selected by the mayor, police judge and city auditor, and vested in that board the same powers as have since, as a rule, been vested in such boards. That act has been the model from which all subsequent ones have been framed.
    From that time to this, while perhaps not as many as 140 laws have been passed of similar kind, the number is great enough to make this contemporaneous construction a practical, consistent and long acquiesced in construction, that invokes the doctrine above referred to.
    From the adoption of the first municipal code, under the constitution, to this time, in all of its various amendments, among the powers granted to the municipal corporation was the one “to organize and maintain a police department,” and equally during all this time the genera] assembly has reserved to itself, and exercised, the right and power of determining how and in what manner the governing body shall be selected and of what number it shall consist, upon the principle announced in State v. Davis, 23 Ohio St., 434; and others.
    What has demonstrated that Judges White, Welch, Gilmore, Mcllvaine, Boynton, Okey, Johnson, Long-worth, Owen, Follett, Dickman, Spear, Williams and Minshall, were all mistaken when they decided as they did in State v. Covington, 29 Ohio St., 102; State v. Bailey, 37 Ohio St., 98; State v. Baughman, 38 Ohio St., 455, 456; State v. Hudson, 44 Ohio St., 137; State v. Smith, 44 Ohio St., 348; State v. Shearer, 46 Ohio St., 275.

      All unreversed cases, and all cited by this court with approval in the two dozen cases cited in our briefs, that this %~>olice law was a constitutional and valid enactment. That it was a proper subject for a local law, was not of a general nature, and did not confer corporate power.
    So corporate power has no longer anything to do with corporations. Whatever is corporate power if granted to or exercised by a corporation is corporate power if granted to or exercised by individuals, and to reach this definition of corporate this court must, upon a definition of this kind find that the court in the past was mistaken' in all that it said in State v. Davis, 23 Ohio St., 434 ; Neil v. Board of Trustees, 31 Ohio St., 15; State v. Pugh, 43 Ohio St., 98; State v. Powers, 38 Ohio St., 54; State v. Shearer, 64 Ohio St., 275, and the many other cases cited. These cases are not only to be reversed upon the exact questions involved, but they are to be" reversed because they define corporate power, to be confined to powers conferred upon a corporation.
    But that is not all. All police power vested in the state is corporate power “of the highest character’? no matter upon whom it is conferred, corporation, board or individual.
    So that the governor, the sheriffs, the constables are exercising corporate power. If the general assembly in whom is vested all legislative power confers any police power upon any agency or person, whom it may in due form of law select, it is corporate power. If the general assembly should vest any police power in any person or board it would be corporate power, and for the reason that “it savors of sovereign power” by which is meant the powers of the state.
    So now individuals executing contracts, notes, bonds, buying and selling property, and doing those things that would be corporate if done by a corporation, are corporate just the same, and the state, in the performance of its governmental powers and duties, which it can only do through agencies, is, in the creation of those agencies and defining their duties, creating them corporations and conferring corporate power on them, not by choice but by the compulsion of the constitution.. So when the state levies a tax; when the general assembly passes laws; when the governor calls out the militia, they are doing it in a corporate Capacity and are exercising corporate powers.
    But the difficulty is that in the practical administration of the law these police boards, boards of health, waterworks boards, school boards which are purely administrative or managing agents or agencies have always been selected and appointed or elected according to the legislative judgment.
    ■ And counsel find that, upon every proposition they assert, they ask you to overrule some case or some number of cases of this court, and the argument “in a circle” seems to be an effort to break this complete circle of decisions, upon every point herein involved.”

      Take the language of this court in the State v. Powers, 38 Ohio St., 54, in the syllabus, and the language in the opinion of Judge Mcllvaine, as a sample. It must not only be held to be wrong, but foolishly and inexcusably wrong, if these new definitions insisted upon here and to be adopted, so on this question, you are asked to overrule, independently now of classification; State v. Judges, 21 Ohio St., 1; McGill v. State, 34 Ohio St., 228; State v. Cincinnati, 52 Ohio St., 419; Senior v. Ratterman, 44 Ohio St., 661, and numerous others including cited police board, school board and board of control cases so often referred to herein.
    The power was vested in the old board, originally appointed by the governor and is now vested in the new board to exactly the same extent. No greater, no less, the only difference being that it requires, better qualifications for its members and secures better services for the state and the people. It is an effort to wipe out the shame that has come upon the police, and the inefficiency that is the result of dirty municipal politics in this department.

      Messrs. Brown, Gedde's cC- Bodman, and Mr. Clarence Broion, attorneys for defendant.
    The decision of this question depends upon the determination of what are “corporate powers.” It is insisted by counsel for relators, on the authority of State v. Covington, 29 Ohio St., 102, that “corporate powers” means only powers conferred upon a corporation, and that special privileges, such as are usually exercised by corporations, and by them exclusively, may be conferred upon individuals or an unincorporated board (even though it be an agency of a municipal corporation), without contravening this constitutional provision, for the sole reason that the donee of the powers is not a corporation. It is insisted that the same powers may be conferred upon individuals, which could not be conferred upon those persons if they were incorporated. For example, while it would not be competent for the legislature, by special act, to authorize the city of Toledo to exercise different corporate powers from other cities of the same grade and class, still the same powers may be conferred upon individuals, or an unincorporated board — an agency of the city- -because the constitution merely provides that such powers must not be conferred by special act upon corporations.

    The error is plain. Article 13, Sec. 1 of the con-. stitution does not provide that corporate powers shall not be conferred by special act upon corporations alone, it provides that corporate powers shall not be conferred by special act — upon any person, whether natural or artificial. The powers which the legislature is forbidden to confer in this manner are those special privileges which.are ordinarily not enjoyed by the individual citizen, and which, if conferred at all, must be conferred by general laws having uniform operation throughout the state.
    The history of this provision and the reasons for its insertion in the constitution are well known. Prior to 1851, the number of special acts passed by the legislature in each session was enormous. During .the session of 1838-9, 600 such acts were passed conferring special privileges not enjoyed by the citizens at large, although in the same situation and as much entitled thereto as the persons to whom these privileges were granted. 1 Debates, p. 347.
    The era immediately preceding the adoption of the present constitution was well known as the “era of log-rolling.” Members of the legislature from different sections of the state presented special acts conferring special powers, privileges and immunities upon théir constituents. To secure the votes of other legislators, promises were given to vote for special acts introduced by them. It was no less obnoxious that, the special powers were conferred upon individuals or unincorporated societies, associations or. boards, instead of upon companies already incorporated. The objection raised throughout the state was that special privileges were granted to some, which were denied to others, and that favoritism was thus extended not only to corporations, but to private citizens, associations and societies as well. The objection was to the character of the privileges conferred, and it was insisted that if special privileges were to be conferred, such as were not possessed by the natural citizen, those privileges should be possessed and enjoyed by all and not by some at the expense of others. 1 Debates, 351.
    These privileges referred to in the Debates, and at which this constitutional provision was aimed, were most frequently conferred upon corporations. They were privileges or powers which the individual members of society did not possess, and from the fact that they were usually conferred upon, and exercised by, corporations, they came to be referred to as “corporate powers.”
    The constitution is intended not only to provide against the conferring of special privileges upon corporations, but upon all members of the body politic. If it had been intended to forbid, the conferring, by special act, of special privileges upon corporations alone, it was unnecessary to make the separate provisions of -Secs. 1 and 2 of Article 13.

      The term “corporate powers” has reference to those powers which ordinarily and usually belong to, and are exercised by, a corporation. As before stated, they are powers which do not belong to the individual, nor to an association of individuals; such as, for example, the power of succession, and others which readily suggest themselves. These powers and privileges derive their name “corporate powers” from the fact that they are usually conferred upon incorporated bodies. But historically, these privileges and powers existed and were exercised before the incorporation of societies was known and before the term “corporation” was ever used; and it is significant that, at the. present time, one of the tests of corporate existence is the possession of these special privileges or powers which are ordinarily or usually exercised by corporations. Thus, the constitutions of many states define a corporation to be any association having any of the powers or privileges of corporations not possessed by individuals or partnerships. Constitution of New York, Art. 8, Sec. 3; constitution of Pennsylvania, Art. 16, Sec. 13; constitution of Michigan, Art. 15, Sec. 11; constitution of Minnesota, Art. 10, Sec. 1; constitution of Kansas, Art. 12, Sec. 6; constitution of North Carolina, Art. 8, Sec. 3; constitution of California, Art. 12, Sec. 4; constitution of Alabama, Art. 14, Sec. 13; constitution of Missouri, Art. 12, Sec. 11.
    A corporation sole consisted of a single person deemed a body politic and corporate because possessing some legal capacities and advantages, and especially that of perpetuity, which as a natural person he could not have. 2 Kent Comm., 273.
    A bishop of the Church of England was deemed a corporation sole, not merely because of the capacity of legal perpetuity, but also because of the exercise by him of other corporate powers. For example, the bishops of Durham, in the exercise of corporate powers, granted charters of incorporation to the city of Durham in 1565, 1602 and 1780, and the last was the charter in operation up to the passing of the municipal corporations act (1837). 6 Encyc. Brit., 433, title “Corporations.” In the United States ministers seized of parsonage lands in rights of the parish' have been regarded as corporations sole. Brunswick v. Dunning, 7 Mass., 445; Weston v. Hunt, 2 Mass., 500; Archbishop v. Shipman, 79 Cal., 288. This has usually been not by virtue of any statute expressly creating them such corporations, but because there have been conferred upon them corporate powers.
    So the king was deemed a corporation and the same quality has been in this country ascribed to the governor of a state. 1 Thomp. Corp., Sec. 8.
    The grant of corporate powers to one person and his associates virtually confers on him alone the right to exercise all the corporate powers thereby granted. Angelí & Ames Corp., Secs. 28, 78; 1 Thompson Corp., Sec. 8; Dillon Munic. Corp. (4 ed.), Secs. 42, 43.
    Thus it appears that “corporate powers” are such, although conferred upon unincorporated individuals, and, indeed, that corporations may be the result of conferring corporate powers upon individuals.
    There exists both in this country and in England what are known as “corporations by prescription;” that is, although there never was in fact a charter, or incorporating act, nevertheless, from the long continued exercise of corporate powers, a charter will be presumed to have been granted. Beach Pub. Corp., Secs. 62, 76.

      A corporation sole could not exist if corporate powers could only be bestowed upon a corporate entity. An individual is a corporation sole because he possesses the powers, corporate in their nature.
    Special or corporate privileges were originally granted in England by the king by special charter; and later, in the same way, by both king and parliament.
    In America, “this authority is exercised by the state, upon which' descended this power along with the other prerogatives vested in the crown upon the emancipation from British dominion.” Beach Pub. Corp., Secs. 31, 39.
    The claim that powers conferred are not “corporate powers” unless conferred upon a corporation is not sustained by the recent decisions of this court. Counsel for relators claim that such powers as are conferred by this act are not conferred upon the municipality but upon an unincorporated board.
    A similar claim was made in the case of Commissioners v. State, 50 Ohio St., 653, where an act was reviewed which authorized the councils of the villages of Norwood and Pleasant Ridge to nominate and recommend to the commissioners two freeholders to act as trustees in making a certain contemplated improvement on a highway. It was claimed that this law contravened Sec. 1, Art 13 of the constitution. In answer thereto it was urged that there was no attempt to confer power upon the municipalities, but that if power was conferred at all, it was conferred upon the village councils.
    It was further claimed in that case that even if the power was conferred upon the corporation, still it was not “corporate power,” because it was not to be exercised with respect to the business of government of affairs of the two corporations, but that the contemplated improvement was an “outside and independent matter.”
    It is to be noted that the eourt did not apply the test contended for by relators in this case, i. e., whether the powers were conferred directly upon a corporation eo nomine, On the contrary, the court held that, although powers conferred directly upon a corporation would'be presumed to be corporate powers, still that presumption could be rebutted. And indeed, in this case, the court determined the question by an examination of the character of the powers conferred. The test applied in this case was whether the poicers related to the business and affairs of the municipality; and it appearing that they did, they were held to be corporate powers.
    It would scarcely be contended that the powers to be exercised by the board of police commissioners of the city of Toledo, under the act of 1902, do not relate to the business and affairs of the city of Toledo. They in fact concern many of the most important affairs of the city. State v. Cincinnati, 23 Ohio St., 445; 1 Dillon Munic. Corp., Sec. 21.
    An. act, passed March 13, 1890, created for cities of the first grade of the first class “A board of public improvements” and abolished the board of public affairs; the duties of the latter board being conferred upon the new board, which was declared to be “in all respects the successors of the old board.” 87 O. L., 62. Under this law, the relators in State v. Smith, 48 Ohio St., 211, were appointed members of such board by the governor, to whom the power to appoint was given by the statute. Afterwards, this board was abolished by an act passed October 24, 1890, and a new one, called “A board of city affairs” was created for cities of the same grade and class as the former. It was made to consist of four members appointed by the mayor. It was claimed that this was a special act conferring corporate powers. It was held to be a special act because of a provision that the bonds of the appointees should be approved by the judges of the superior court. Cincinnati being the. only city having such court, was plainly designated by the act.
    It was also held that corporate powers were conferred.
    With regard to this case, the following points should be noted: (1) The corporate powers conferred were not conferred directly upon the corporation by that name, but upon an unincorporated board; (2) the corporate power, which was said to be conferred, was the potver to have a certain board as part of the municipal government. State v. Powers, 38 Ohio St., 54; Eckstein v. Board of Education, 4 Circ. Dec., 149; 10 C. C. R., 480; Clegg v. School District, 8 Neb., 178.
    The Michigan legislature passed an act to establish a board of public works in and for the city of Detroit, conferring certain powers upon such board, and itself appointing the first members of such board as permanent officers for full terms.. It was insisted that these powers could be conferred only upon the city corporation, to be exercised by the common council, and that no part of them could be conferred upon any board of the city. People v. Hurlbut, 24 Mich., 44.
    Powers conferred upon the common council, or the police board, of the city of Toledo, are conferred upon the city; for, since the city acts only through its agencies . (i. e., the council, the police board, etc.), any act which authorizes the agencies of the city to exercise powers, authorizes the city to exercise the same powers. .
    Surely an act which attempts to confer special powers, upon an individual is equally as offensive as one which confers it upon a corporation already existing. For example, the legislature might confer the power of eminent domain upon hotel companies. According to the argument of counsel for the relators, if the legislature undertook to confer upon the Toledo Hotel Company, for example, the power of eminent domain, such act would he unconstitutional because it would be a special act conferring powers .upon a corporation. Yet, if the ■ legislature conferred the same power of eminent domain upon John Smith, the president of the Toledo Hotel Company, such, act would not be a special act conferring corporate powers, for the.reason that the grantee was not a corporation. If the act in question would be unconstitutional in case the powers conferred were conferred upon the municipal corporation of the city of Toledo, for a stronger reason would the act be unconstitutional if the same powers were conferred upon an individual member of that corporation for the benefit of the corporation? Surely it cannot be claimed that the legislature may confer upon Smith, a citizen of Toledo, the power of taxation and the power to expend public funds for the police department; — upon Jones the power of taxation and the expenditure of public funds for the fire department, and upon another the power to maintain public cemeteries, waterworks and the like, all for the benefit of the city of Toledo, and yet may not confer that same power by special act upon all the inhabitants of the city of Toledo collectively either in the name of the corporation itself or of the common council as its representative.

      If the act be deemed neither to confer corporate powers nor to organize (in part) a city, it conflicts with Sec. 26 of Art. 2 of the constitution.
    State police supervision and control is a subject of a general nature and laws regulating the same must have a uniform operation throughout the state.
    The decision in State v. Covington, 29 Ohio St., 102, appears to have been contra. But that decision appears to have rested upon the theory that a law is not of a general nature because its operation is limited. That theory is reached only by arguing in a circle. State v. Bargus, 53 Ohio St., 94; and would make evasion so easy as to accomplish practical nullification. Gaylord v. Hubbard, 56 Ohio St., 25.
    The act must be deemed either:
    (1) A partial reorganization of a branch of municipal government the creation of a. municipal board; a violation of Sec. 1 of Art. 13, in that it confers corporate, powers upon the municipality, upon the board thereby sought to be created, and upon the state executive — the power, incident to and inherent in the municipality, and therefore a corporate power, to appoint members of a municipal board, a local governmental agency; or
    (2) A law of a general nature, regulating the appointment, organization, control and government of the police. Cincinnati v. Steinkamp, 54 Ohio St., 284.
    The subject of the enforcement of the police regulations of a community which are designed to protect life and limb, not only from the danger of fire, but from other. dangers as well, is no less general than the subjects of protecting life and limb from fire alone.

      In State v. Ketter, 65 Ohio St., 558, it was held that an act for the protection of life and property in cities of the first grade of the first class (requiring and regulating licenses to stationary engineers) was unconstitutional, on the authority of Cincinnati v. Steinkamp, supra.

    The act violates the principle of local self-govern-. inent. This principle is always understood to underlie the constitution. State v. Commissioners, 54 Ohio St., 333; Cooley Const. Limit., 47; People v. Hurlbut, 24 Mich., 44; 1 Dillon, Municipal Corporations, Sec. 21.
    The framers of the constitution purposed, by Secs. 1, 2 and 6, Art. 13, to provide for the local self-government of municipalities.
    When the sections reported by the committee (1 Debates, 260) were considered by the convention, in committee of the whole, determined efforts were made to strike out (76. 340) and to modify in various ways. It was vainly sought to amend (1) by inserting the words “except for municipal purposes” (p. 346), (2) by inserting “except for municipal purposes, or where the objects cannot, in the opinion of the general assembly, be attained under general laws” (p. 355) — this being substantially the form used in the constitution of New York (p. 352) and followed by that of Wisconsin (p. 343); (3) by adding “except for such municipal and charitable purposes as, in the opinion of the general assembly, cannot be attained by general law” (p. 362); and (4) by adding “Provided that the legislature shall pass no special act conferring corporate privileges, except for municipal purposes, and where, in their judgment, the objects can be better attained than under a general law” (p. 363).

      The exceptions in the constitutions of New York and Wisconsin have resulted in constant tinkering by the state legislatures with city governments.
    The evil results in New York are summarized by the report of the commission of 1876 appointed “to devise a plan for the government of cities in the state of New'' York” which commission, wliereof William M. Evarts was chairman, “included some of the ablest men in the state, and its report presented March 6, 1877, may be said to have become classical.”
    The commission suggested among the causes of the prevailing evils, the assumption by the legislature of direct control of local affairs.
    The Debates show that the members of the Ohio convention realized and sought to guard against these evils. The constitutional inhibition against special acts conferring corporate powders, and requirements for the organization of cities under general lawrs, and that all law's of a general nature shall have a .uniform operation throughout the state, leave no room for a special act for the local government of a particular municipality.
    Moreover that the rule of stare decisis does not require this court to follow7 any prior upholding of a special act conférring corporate pow7er is conclusively demonstrated in State v. Pugh, 48 Ohio St., 123.

      Mr. Brand Whitlock, for defendants, cited and commented upon the following authorities:

      State v. Covington, 29 Ohio St., 102; Kelley v. State, 6 Ohio St., 269; McGill v. State, 34 Ohio St., 228; State v. Powers, 38 Ohio St., 62; Cooley Const. Lim., 104; Dillon Munic. Corp., 17; State v. Baughman, 38 Ohio St., 455; State v. Shearer,
      46 Ohio St., 275; Commissioners v. Rosche Bros., 50 Ohio St., 103; State v. Judges, 21 Ohio St., 1; State v. Mitchell, 31 Ohio St., 592; State v. Brewster, 39 Ohio St., 653; State v. Pugh, 43 Ohio St., 98; State v. Hawkins, 44 Ohio St., 98; State v. Hudson, 44 Ohio St., 137; Marmet v. State, 45 Ohio St., 63; State v. Wall, 47 Ohio St., 499; State v. Toledo, 48 Ohio St., 112; State v. Cincinnati, 52 Ohio St., 419; State v. Nelson, 52 Ohio St., 88; State v. Baker, 55 Ohio St., 1, 8; Kenton v. State, 52 Ohio St., 59; State v. Anderson, 44 Ohio St., 247; Atkinson v. Railroad Co., 15 Ohio St., 21; State v. Smith, 48 Ohio St., 211; 7 Am. & Eng. Ency. Law (2 ed.), 618; Warner v. Beers, 23 Wend. (N. Y.), 103; Insurance Co. v. New York, 134 U. S., 594, 599; Brady v. Moulton, 61 Minn., 185; 7 Am. & Eng. Ency. Law (2 ed.), 699; Stubbs, Const. Hist. (2 ed.), Sec. 810; School Dist. v. Insurance Co., 103 U. S., 707; Commissioners v. State, 50 Ohio St., 653, State v. Cincinnati, 20 Ohio St., 18; State v. Cincinnati, 23 Ohio St., 455; State v. Constantine, 42 Ohio St., 437; Devine v. Comm. of Cook, 84 Ill., 560; 2 May’s Const. Hist., 465; 7 Davis. Pol. Science Quarterly, 273; Thomas v. Ashland, 12 Ohio St., 124; Bronson v. Oberlin, 41 Ohio St., 476; Bonebrake v. Wall, 11 Re., 38; 24 W. L. B., 175; Costello v. Wyoming, 49 Ohio St., 202; State v. Bargus, 53 Ohio St., 94; Railway Co. v. Martin, 53 Ohio St., 386; Merrill v. Toledo, 3 Circ. Dec., 524; 6 C. C. R., 430; Carr v. West Carrollton, 4 Circ. Dec., 303; 8 C. C. R., 1; Herrman v. Cincinnati, 6 Circ. Dec., 151; 9 C. C. R., 357; Simpkinson v. Board Public Works, 9 Re., 453; 13 W. L. B., 614; Hixson v. Burson, 54 Ohio St., 470; State v. Cowles, 64 Ohio St., 162;
      People v. Hurlbut, 24 Mich., 44; People v. Common Council, 28 Mich., 228; 1 Dill. Mun. Corp., Sec. 67; People v. Draper, 15 N. Y., 532; Darlington v. New York, 31 N. Y., 164; State v. Seymour, 35 N. J. L., 47; State v. Valle, 41 Mo., 29; Daley v. St. Paul, 7 Minn., 390; State v. Smith, 44 Ohio St., 348; M. de Tocqueville, Democracy in America, Chap. V.
   Shauck, J.

In the opinion of counsel for the relators the constitutional validity of the act of April 27, 1902, is not involved in the present inquiry. Their view of the subject is that this act repeals the statutory authority under which the defendants held the office of police commissioners, and that, the relators are therefore the only persons who, under an existing statute, claim to hold the office, and to be entitled to the possession and custody of the property which appertains to it. For two conclusive and independent reasons we regard this view as defective, and the conclusion to which it leads as unsound.

This act, and the sections for whose repeal it provides, relate to the police organization of the city of Toledo. Such organization is not otherwise provided for. Owing to the relation and the subject-matter of the statutes, we cannot suppose that the general assembly would have enacted the section repealing the law under which the defendants claim and hold office, but for the belief that the act under which the relators were to succeed them would be operative. That supposition would impute to the general assembly an intention to leave the city without such organization. That is forbidden by the nature of the subject, and by the universally recognized necessity for such an organization in all the cities of the state. Applying to the case a doctrine with which the lawvers of the state are quite familiar, the repealing section of the present act is inoperative unless its provisions for reorganization of the board are valid. The system provided by the former legislation being still in full operation, it should continue, unless, by a valid act, a system to succeed it has been provided.

It also seems quite clear that the title of the relators, and their right to the possession of the property appertaining to the office of police commissioners, depends upon the constitutional validity of the act of April 27,1902. If that act is invalid, the relators are but private citizens, wholly without authority to demand or receive such property, and without authority to make the present relation. Even if the defendants have ceased to hold office as police commissioners, there is no duty enjoined upon them by law to deliver the property in question to persons who are without official rights and duties with respect to it.

The validity of the act is denied because, in the view of counsel for the defendants, it is a special act conferring corporate powers, in violation of the first section of the thirteenth article of the constitution, ordaining that: “The general assembly shall pass no special act conferring corporate powers.” Confessedly, if the act is general, it is not within the inhibition of this section. The act is said to be general and not special, because it provides for “the appointment, regulation, and government of a police force in cities of the third grade of the first class.” That it affects no municipality in the state except Toledo is admitted. But the fact is said to be immaterial, because of the classification of cities by the general assembly, and the doctrine formerly applied by the courts to such classification.

That there has long been classification of the municipalities of the state is true. It is also true that while most of the acts conferring corporate powers upon separate municipalities by a classified description, instead of by name, have been passed without contest as to their validity, such classification Avas reluctantly held by this court to be permissible. But attention to the original classification, and to the doctrine upon Avhich it was sustained, must lead to the conclusion that the doctrine does not sustain the classification involved in the present case, and in State ex rel. v. Beacom et al., presently to be decided. Originally, all the municipal corporations of the state were comprehended Avithin the following classification: “Cities of the first, and cities of the second class; incorporated villages, and incorporated villages for special purposes.” The basis of the classification was unqualifiedly fixed by the statute which provided that all cities which then had, or might thereafter have, a population exceeding twenty thousand, should be cities of the first class; and, by like terms, municipalities having, or attaining to, a population of more than five thousand, but not exceeding twenty thousand, should be cities of the second class. By an unvarying rule the characteristic of population was made the basis of the classification, and it was made inevitable that every city attaining a population of twenty thousand should advance, ánd become a city of the first class; and, that every village attaining a population of five thousand should become a city of the second class. Against the validity of acts conferring corporate powers by such classification, it was urged that the validity of an act must be determined by its practical operation, and not by its form; and, that such acts, though general in form, were special in operation. The answer to that objection stated the sum of the judicial doctrine of_„ classification.- One may state that answer as strongly as his abilities will permit, without giving it his approval. The answer was that the classification was to be permanent since it was to be presumed that the general assembly intended obedience to the constitution, that the requirement of- the constitution was not that an act granting corporate power should immediately operate in all cities, but that there was a sufficient compliance in the provisions of the statute for the imperative advancement of every municipality when it should have the prescribed characteristic of population, and thus every municipality of the class described in the statute by which power was conferred, or of a lower class, might come within its operation. Two things were true and they were of the essence of the doctrine. Advancement was by a rule of unvarying application, and every municipality might become subject to the operation of every statute conferring corporate power upon its own or a higher class.

The number of classes into which successive acts have since divided the municipalities of the state to make them recipients of corporate power cannot be ascertained upon any inquiry that is practicable. Sections 1546 to 1552 of the Revised Statutes, relate exclusively to the subject of classification. The first of these sections now provides that cities of the first class shall be of three grades, and cities of the second class shall be-of eight grades. In the present view grades of classes are but added classes. In these eleven classes the eleven principal cities of the state are isolated, so that an act conferring corporate power upon one of them by classified description, confers it upon no other. They have been isolated under the guise of classification, as their growth promised realization of the belief which was the foundation of the judicial doctrine of classification, viz.: that their advancement under the unvarying rule of population, would give a wider operation to acts conferring corporate powers. An impediment to the more general operation of laws conferring corporate powers on cities of the first class is found in section 1546: “Cities of the second class, which hereafter become cities of the first class, shall constitute the fourth grade of the latter class.” We are not aware that there is now in the state a city of the fourth grade of the first class, but the class is provided to the end that it may receive any city of the second class which may be advanced, and that such city may thus be excepted from the operation of these acts relating to Cleveland and Toledo, which are, respectively, cities of the second and third grade, of the first class. The judicial doctrine of classification was, that all the cities having the same characteristic of a substantial equality of population, should have the same corporate power, although another class might be formed upon a substantial difference in population. The classification now provided affords no reason for the belief that it is based upon such substantial difference in population as the judicial doctrine contemplated. When the original classification, and the numerous reclassifications were made, Cincinnati was the most populous city in the state. Cleveland now exceeds it in population, but corporate powers continue to be conferred by the former description. Is it believed that a doctrine which recognized the validity of législation applying only to the city of Cleveland because it was substantially below Cincinnati in population, requires us to hold that similar legislation is now valid because it has the larger population? Furthermore, the increasingly numerous classes of municipalities show that even when a difference in population is made to appear as the basis- of classification, the differences in population are so trivial that they cannot be regarded as the real basis. We have been required, from time to time, to examine many of the acts to confer corporate powers upon the isolated cities composing the eleven classes referred to, and others containing special classifications, and still others have been examined in the present inquiry. In view of the trivial differences in population, and of the nature of the powers conferred, it appears from such examination, that the present classification cannot be regarded as based upon differences in population, or upon any other real or supposed differences in local .requirements. Its real basis is found in the differing views or interests of those who promote legislation for the different municipalities of the state. An intention to do that which would be violative of the organic law should not be imputed upon mere suspicion. But the body of legislation relating to this subject shows the legislative intent to substitute isolation for classification, so that all the municipalities of the state which are large enough to attract attention shall be denied the protection intended to be afforded by this section of the constitution. The provisions of the section could not be more clear or imperative, and relief from the present confusion of municipal acts and the burdens which they impose would not be afforded by its amendment. Since we cannot admit that legislative power is in its nature illimitable, we must conclude that this provision of the paramount law annuls the acts relating to Cleveland and Toledo, if they confer corporate power.

Counsel for the relators, in support of the act relating to Toledo, urge the conclusion that even though the act should be regarded as special, it is not repugnant to this section of the constitution because, in their view, it does not confer corporate powers. The observations relating to this subject in Cincinnati v. Parker et al., ante., are pertinent, but they need not be repeated here. It is no longer doubted that the corporate powers contemplated by this section are those conferred upon municipalities, as well as those conferred upon private or commercial corporations. Though it might be difficult to give a conceptual definition of corporate powers which would be found complete and accurate in all cases, an accurate descriptive definition readily occurs, and it is sufficient for present purposes. They are such poAvers as are usually conferred upon corporations. In the present aspect of the subject they are such powers as are usually conferred upon municipal'corporations. They are classified by Judge Dillon as follows:

“If we analyze the complex powers usually conferred upon a municipality in this country we shall discover that these are of two general classes, viz.: 1. Those which relate to health, good government, éfficient police, etc., in Avhieli all the inhabitants have an equal interest and ought to haAre an equal voice. 2. Those which directly involve the expenditure of money, and especially those relating to local improvements the expense of which ultimately falls upon the property owners.”

Surely we shall not err if we regard the phrase “'corporate powers,” as embracing all the powers which, within the observation of those who framed and adopted the constitution, were conferred upon and exercised by all the cities of the state. Of these powers perhaps none is more conspicuously exercised than that of maintaining the public order and enforcing municipal ordinances.

. It is also quite obvious that this act contemplates a large increase in the expense of maintaining the police department of Toledo, and that expense must be paid with money raised by the exercise of the municipal power of taxation. That is a corporate power. Cincinnati v. Parker et al., ante. In this connection it is interesting to observe the relation of this section of the constitution to Sec. 26, of Art. 2, which provides that: “All laws of a general nature, shall have uniform operation throughout the state.” It is within the knowledge common to all whose attention has been directed to the subject, that one of the most prominent of the purposes leading to the adoption of the present constitution was to relieve the people of the evils of special legislation, legislation which was enacted by the votes of representatives who were indifferent to the subject, because the legislation did not affect their constituencies. This is clearly shown by the debates in the constitutional convention, by the public history of those times, ¿nd by repeated judicial expositions of the subject. Conclusive evidence of the evil is preserved in the volumes which contain the acts of the legislature at its sessions held shortly before the adoption of the present constitution. That these important changes have been made in the organic law would not be suggested by a comparison of the bulk and contents of those volumes with the bulk and contents of those which are again appearing. These sections were admirably adapted to accomplish the purpose in view, for in their combined scope they seemed to comprehend the entire field in which special legislation had been enacted. Every consideration suggested, for regarding the act under consideration as being without the first section of article 13, tends to the conclusion that it is within the 26th section of article 2. The reliance for the realization of the benefits contemplated by those provisions of the constitution was, first, upon the dutiful obedience of the general assembly to their requirement; and, second, upon the well established duty of the courts to adjudge all legislation in violation of constitutional limitations to be void. There is no other relief.

Counsel for the defendants further insist that the act is violative of the principles of local self-government, recognized in The State ex rel. v. Commissioners, 54 Ohio St., 333, particularly stated in the opinion of Minshall, J., in that case, and Cooley’s Constitutional Limitations, 47; 24 Mich., 44; and of the 6th section of the 13th article of the constitution. These questions are passed without consideration, the propositions believed to have been already established being sufficient to determine the case.

Demurrer sustained, and petition dismissed.

Burket, Spear, Davis and Price, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The State of Ohio ex rel. the Attorney General v. Beacom et al.
    Aci of March 16, 1891, is a special act conferring legislative power (in the city of Cleveland) — Is repugnant to section 1 of article 18 of constitution — Constitutional law.

    The act of March 16, 1891, entitled: “An act to provide a more efficient government for cities of the second grade of the first class,” (88 Ohio Laws, 105) and the acts amendatory thereof, being special acts conferring corporate powers, are repugnant to section 1 of article 13 of the constitution. Stale ex rel. Knisely et al. v. Jones et al., ante, 453.
    (Decided June 26, 1902.)
    In Quo Warranto.
    The defendants are acting as, and cíáim to be, respectively, director of law, director of public works, director of police, director of fire service, director of accounts, and director of charities and corrections of the city of Cleveland. Together they claim to be the board of control of that city, with authority to control all the property of the city, including the money raised by taxation. The petition alleges that said claimed authority is not vested in them by any valid law. A judgment of ouster is prayed for.
    The defendants answering admit that they claim and are exercising authority as charged in the petition, and they allege that such authority is lawfully conferred upon them by an act of March 16, 1891, entitled “An act to provide a more efficient government for cities of the second grade of the first class” (88 Ohio Laws, 105), and the several acts amendatory thereof. The case is submitted on demurrer to the answer. The questions presented arise out of the operation of the act which, by its terms, is limited to “cities of the second grade of the first class,” it being admitted that the act confers corporate poAvers, and that Cleveland, being the only city of the second grade of the first class in the state, is the only city in Avhich the act presently operates.

      Mr. John M. Sheets, attorney general; Mr. G. D. Gibbons and Messrs. Goulder, Holding & Hasten, for plaintiff.
    We submit that the acts under consideration and those supplemental thereto violate Secs. 26 and 27, Art. 2, Sec. 1, Art. 13, and Sec. 11, Art. 3 of the constitution.
    Constitutionality of an act is to be determined by nature of subject matter.
    The title of the act is: “To provide a more efficient government for cities of the second grade of the first class.”
    The declaration that “Under Sec. 26 of Art. 2 of the constitution, the constitutionality of an act is to be determined by the nature of its subject-matter, its operation and effect, and not alone by its form,” lias been so repeatedly made that it Avould be superfluous to cite the many cases wherein it is to be found. The fact that the Avord “cities” is used is not, therefore, conclusive, if at all consequential. Railway v. Martin, 53 Ohio St., 386; Hixon v. Burson, 54 Ohio St., 470.
    From the decisions of the court Ave assume it to have been settled that Avhenever it appears that the object in employing language used is to give the act a general character and thereby attempt to obviate any constitutional objection, while intending to limit its operation to one city, the means adopted will fail to accomplish the object intended.

      This court has held that the legislature may classify cities, and that a statute in relation to a class may be treated as a general law within the meanings of the provisions of the constitution, but it has also uniformly held that this right "of • classification cannot be exercised to evade the provisions of the constitution. Costello v. Wyoming, 49 Ohio St., 202; Cincinnati v. Steinkamp, 54 Ohio St., 284; State v. Cowles, 64 Ohio St., 162.
    It has in many cases also held that the provisions of the constitution are mandatory and not directory. Citation of these cases is needless. ' Iúdeed, to cite to the court its own decisions upon the questions herein involved, is unnecessary,- and is only done in recognition of a method of argument usually necessary to apprise opposing parties of authorities relied upon.
    That the' subject-matter of these acts is of a general nature cannot be questioned after the many declarations of this court. That they were specially designed for the city of Cleveland is apparent.
    The session laws and the revised statutes both indicate that the laws were designed for Cleveland alone. It is true we do not have in this case an act whose title contains the name of the city for which it Avas intended, as in State v. Pugh, 43 Ohio St., 98, but it is to be remembered that these laws are published under authority of the legislature, and we think their publication in manner and form as provided by law is one of the indices 'pointing — feebly it may be — to the legislative intent. In any event, it is a circumstance to be considered.
    The legislature may provide for the organization of cities by general laws, but may it do so by laws general in form, which cannot, in the very nature of things, have uniform operation throughout the state in cities of the class specified? Can the legislature arbitrarily declare that every city of that grade and class shall have the same number of representatives in its legislative body?
    The distinction between equality of representation in a body in which all political divisions are concerned and equality of representation of citizens in different political bodies is, of course, apparent, but it is contrary to the spirit of our people and their laws that in one section of the state a certain number of citizens shall be entitled to a representative in its legislative body, and in another section a representative in such body can only be obtained by a larger number of citizens, where both municipalities are declared by law to be in the same class and of the same grade. State v. Dudley, 1 Ohio St., 442.
    Judge Sayler, in State v. Cincinnati, 6 Dec., 196; 3 N. P., 127, discusses the question of dividing territory into wards and the giving of wards equality of representation.
    It is to be presumed that the legislature, having in mind the policy of the state, Avould not pass a general law having reference to various cities of the same grade and class and make a limitation upon the number of members comprising their legislate bodies, or grant to the inhabitants of one city the right to a representative in such legislative body based upon a greatly disproportionate number of electors.
    This court recognized the impossibility of the legislature providing in a general law for the division of cities in State v. Pugh, 43 Ohio St., 98.
    The impossibility of the operation of this law upon any other city than Cleveland is evidenced by the fact that it provides for the election óf councilmen from the ten districts at the first annual municipal election after the passage of the act, to-wit, the first Monday in April, 1891. The election in the city of Cleveland in April, 1891, was had under the provisions of this statute, but by no possibility could an election thereunder have been held in any other city.
    Under the provisions of Secs. 1547, 1548, 1617, 1618, 1619, and 62 Rev. Stat., no city could possibly have changed its grade from any lower class until after November 20, 1891. Hayes v. Cleveland, 55 Ohio St., 117; Hermann v. Cincinnati, 6 Circ. Dec., 151; 9 C. C. R., 357; affirmed by Supreme Court, 52 Ohio St., 676; State v. Maxfield, 6 Circ. Dec., 11; 9 C. C. R., 26.
    The print of that special legislation inhibited by the constitution is in other sections of the act, to which we will call the attention of the court when we undertake to discuss the duties and powers of the defendants, but we may here call attention to Sec. 80.
    This provision could not by any possibility apply to corporations which might thereafter enter this grade and class.
    It is further to be considered that these acts deprive and deny the citizens of Cleveland local self-government accorded to other municipalities, and that the exercise of such power in thus arbitrarily dividing cities into wards and districts is administrative and not legislative. It is a withdrawal by the legislature and a usurpation of powers theretofore always allowed to the people of the localities concerned in the exercise of the right of local self-government. State v. Commissioners, 54 Ohio St., 333; Seifert v. Weidner, 12 Circ. Dec., 506; 12 C. C. R., 1.
    Although it is evident in the recent decisions of this court that it has in mind the evils resulting from the attempted evasion of the provisions of the constitution, we cannot refrain from citing you to the opinion of Scott, J., in Lehman v. McBride, 15 Ohio St., 573, approved by the present chief justice in State v. Ellet, 47 Ohio St., 90.
    ' That frequent attempts in recent years to evade these salutary provisions of the constitution has made these evils, which were apparent to the framers of the constitution, greater and more ramifying in their effect, is so widely known and is so clearly demonstrated in the many acts of assembly which have been passed concerning cities of the state, as to be worthy of the judicial attention which this court has recently given to such legislation.
    These attempted evasions have had the result of having councilmen in some cities elected from wards, in others from districts, some for one year, others for two and three years. Nor has the legislative branch limited its attempted evasions wholly to classification provided by law, but it has attempted sham classifications in several ways, among others, by legislating for cities by fixing population, which latter character of legislation the court has declared to be in conflict with the constitution. State v. Schwab, 49 Ohio St., 229.
    Grave doubts may well be, and have been, entertained by this court as to the constitutionality of the method of classifying cities for purposes of general legislation, but, 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. State v. Ellet, 47 Ohio St., 90; Hixson 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.
    As we understand, the court has also decided in like manner and for the same reasons Cincinnati v. Fenner, 65 Ohio St., 615, unreported; Cincinnati v. Willen, 66 Ohio St., 633, unreported.
    The circuit court of Cuyahoga county has followed in the wake of the Supreme Court in State v. Kurtz, 11 Circ. Dec., 705; 21 C. C. R., 261.
    The act of March 16, 1891, was tinkered several times during the session, and it was provided in a supplemental act passed April 10, 1891 (88 O. L., 304), to which we have heretofore called attention, that in the temporary absence of the mayor and during his temporary disability these several defendant directors, beginning with the director of law, should, under the designation of “Acting Mayor,” have power to perform the duties of mayor during such absence or disability. It is also further provided that if the mayor die or remove his residence during his term of office, these several directors, in the order named, commencing with the director of law, shall become successor for the unexpired term. We submit that this provision is a violation of Art. 2, See. 27 of the constitution, which provides that the appointing power shall not be exercised by the general assembly except as prescribed in the constitution and in the election of United States senators.. State v. Kennon, 7 Ohio St., 546.
    The legislation by special acts confers corporate powers. State v. Cincinnati, 20 Ohio St., 18; State v. Cincinnati, 23 Ohio St., 445.
    It is apparent that the act confers new powers upon.the city of Cleveland. Before calling attention to the special nature of the act as exhibited in its provisions defining the duties of the directors as heads of departments and as members of the board of control, it may be well to recall to the attention of the court the language of Owen, J., in State v. Pugh, 43 Ohio St., 98.
    In passing upon the authority of the legislature to enact laws relating to the confinement of criminals, see opinion in State v. Peters, 43 Ohio St., 629; Van Hagan, Ex parte, 25 Ohio St., 426; Cass v. Dillon, 2 Ohio St., 607.
    It is evident in many sections of. this act that Cleveland alone was having a city government provided by these acts, and .was being clothed with new, novel and additional corporate powers. This is evident even in the repealing sections, wherein legislation affecting the city of Cleveland only was wiped out.
    Hence, we submit that these acts and those supplementary thereto and amendatory thereof, are unconstitutional, and for authority for the correctness of our assertion we have Atkinson v. Railway Co., 15 Ohio St., 21; Railway Co. v. Commissioners, 27 Ohio St., 14; State v. Mitchell, 31 Ohio St., 592; State v. Powers, 38 Ohio St., 54; Falk, Ex parte, 42 Ohio St., 638; State v. Pugh, 43 Ohio St., 98; State v. Smith, 48 Ohio St., 211; State v. Ander

      son, 44 Ohio St., 247; State v. Ellet, 47 Ohio St., 90; Commissioners v. State, 50 Ohio St., 653; Railway Co. v. Martin, 53 Ohio St., 386; Gaylord v. Hubbard, 56 Ohio St., 25; State v. Cowles, 64 Ohio St., 162; Hermann v. Cincinnati, 6 Circ. Dec., 151; 9 C. C. R., 357 (affirmed 52 Ohio St., 676); Cleveland v. Electric Railway Co., 60 Ohio St., 586.

      Mr. M. IT7. Beacom and Messrs. Baker, Payer, Gage &■ Carey, for defendants.
    Section 26 of Art. 2 has no application to this case. The scope of that section is stated in the syllabus of Ampt v. Cincinnati, 5 Circ. Dec., 356; 12 C. C. R., 119, affirmed in 56 Ohio St., 47.
    This act confers corporate powers. Of course it does. That is the purpose for which it was passed.
    Is the act of March 16th a general law? Under the rules laid down by this court to the present time, this law is general. In form the law was enacted “for cities of the second grade of the first class.” That is, of course, not conclusive. The test is, can it be operated in all cities of the second grade of the first class? State v. Cincinnati, 52 Ohio St., 419, 448; State v. Cowles, 64 Ohio St., 162.
    Relator claims that other cities coming into the grade and class of Cleveland could not avail themselves of this law, and he gives therefor two reasons
    First — Certain words and phrases used, make it inapplicable elsewhere.
    Second — - Section 2 could not be applied to other towns and cities coming into the second grade of the first class.
    Preliminary to a consideration of these propositions, defendants call, attention to what they deem in relator’s brief a constantly recurring misapprehension of the rule of classification. Relator seems to think the rule to be that this law would be invalid if “the city of Cleveland alone was in contemplation when it was passed.”
    Of course Cleveland alone .was in contemplation when this law was passed. No other city of the second grade of the first class existed at that time. The law had its origin in Cleveland, was prepared by Cleveland lawyers, and at the time of its passage no other town was in contemplation. Most laws owe their passage to a particular case, or a particular incident. This is often true even of penal laws. It is unnecessary to call the attention of this learned court to relator’s misapprehension of the rule, and defendants comment upon this matter in this place in order that relator may understand unmistakably what we claim the law to be. State v. Cincinnati, 52 Ohio St., 419; State v. Pugh, 43 Ohio St., 98.
    The provision that “the present council in such cities shall continue as now constituted until the next annual municipal election,” in Sec. 86, .might very simply and plainly be held to mean, the council which was the existing one in any city at the time it entered the grade and class, and, too, the same could be said of the word “heretofore,” as used in Sec. 51, and a like construction, not a strained one either, can be placed upon every word and phrase and provision in this act to which objection is made on the ground that because of its form it can be applied only to existing cities of the grade and class. In the case of State v. Toledo, 48 Ohio St., 112, the effect of the presence in a law of this character of the phrase “before the next general Or municipal election after the passage of this. act,” was under consideration. The law was held valid by this court. The reason for so holding does not clearly appear. We can only say that the law was held valid with that provision in Sec. 3. Subsequently, Merrill v. Toledo, 3 Circ. Dec., 524; 6 C. C. R., 430, involved the same question as State v. Toledo, supra, and the court examined what had been determined by the Supreme Court in the former case. The circuit court said that the Supreme Court had not held that the language in that statute “before the next general or municipal election after the passage of this act” meant those immediately thereafter in the year 1889 only, and the circuit court held in substance that such language was applicable for all future time, “so long as it (the law) remains in force.”
    We come to the reason given in relator’s brief for claiming that this act could not be applied to other cities coming into this class, which is: Section 2 could not be applied to other towns and cities coming into the second grade of the first class.
    And this we answer under the following two heads :
    First — The section could be applied to any other city.
    Second — It is immaterial whether it could be so applied or not, for these reasons:
    1. It deals with a local subject and is not necessarily general in its application.
    2. It is distinct from the remainder of the act in its subject-matter.
    3. The legislature provides expressly that each section shall stand alone and unaffected by invalidity in other sections.
    4. In examining the title of defendants to the offices which they hold and claim the right to hold only those sections under which they claim power will be examined.
    The section could be applied to any other city. Section 2 means no more than this, that every city of the second grade of the first class shall be divided into forty-two wards, and that these wards shall be arranged into eleven districts. It is not necessary in any case that wards shall be numbered consecutively, according to their location, and this is probably never done in any city. The mode here provided for electing members of the council is not a new thing in our statutes. It is found in the Revised Statutes of 1880. By section 1656 of these statutes, it is provided that in cities of the first grade of the first class, the board of aldermen shall consist of thirty members, to be elected by districts, and that such cities are hereby divided into five districts, as follows, etc. This section, as reported by the codifying commission, and adopted by the general assembly, was part of a general act relating to the organization of municipal corporations. It would hardly be said, by any one that this section was invalid, or, if so, that thereby the subsequent sections of the statutes relating to such cities were made invalid.
    By an act passed March 19, 1887 (87 O. L., 125), this section was amended so as to provide a board of aldermen for Cleveland, the members of which were elected by districts composed of designated wards. The validity of this act was attacked in the Supreme Court, and the act was sustained. State v. Ford, 17 Bull., 326; State v. Lawrence, 17 Bull., 326.
    It is provided by Sec. 1628, Revised Statutes, that the council may divide a municipal corporation into wards. Having the power so to do, if a new municipality becomes a city of the second grade of the first class, the council could divide the corporation into wards and into districts in exact accordance with the provisions of Sec. 2.
    The act of March 16 consists, in a general way, of three parts.
    1. Section 2 defines, councilmanic districts.
    2. Section 1 and sections 3 to 11, inclusive, relate to the council and its powers.
    3. Sections 12 to 86-2 deal almost exclusively with executive officers, their powers and duties.
    This division is not sharply drawn. In the portion subsequent to Sec. 11 are found here and there provisions relating to the council. But this is substantially correct.
    The law held invalid in State v. Pugh, supra, was so held on the ground that Sec. 9 thereof was local and special, applying to Columbus alone, and that, as the legislature would not have passed the act without that section, the whole act was therefore invalid.
    Clearly nobody would pretend that the legislature would not have passed the act of March 16 without section 2. It is foreign to the scope and purposes of the act, which were to provide administrative officers and clothe them with powers and impose upon them duties. The legislature would have undoubtedly passed this act, if every portion of it other than the part relating to administration were omitted. In fact, the history of this law, and also its contents, especially, when compared with the laws to which it succeeded, indicate clearly that there was no intent on the part of the legislature to modify in any material way the organization of the legislative branch or its powers or duties. The law purposed to get administrative officers who would be radically unlike, in the locating of responsibility for neglect of duty, from those from whom they were substituted. This purpose, so evident in the law, and so well known to those who understand its history, must be continually in the mind of the court in considering this case.
    The legislature provides expressly that each section shall stand alone and unaffected by invalidity in other sections.
    By the act of April 2, 1891 (88 O. L., 271).
    The legislature has therein declared that the validity of each section or part of the act shall be determined by the validity of the section or provision in question alone. And not only is this within the power of the legislature to declare, but it is a necessary rule of construction, where an act consists of many sections. If, for instance, it were held that the provision of Sec. 1656 of the Revised Statutes of 1880 was invalid, in which section a board of aldermen was provided for cities of the first grade of the first class, would any one say that by reason thereof the subsequent sections of that act, prescribing the duties and powers of the executive and administrative officers of cities of the first grade of the first class were rendered invalid?
    The municipal code of 1880 was passed as a whole, as a single act. Would any one claim that the validity of the whole was dependent upon the validity of every part? Alter v. Cincinnati, 56 Ohio St., 47.
    In examining the title of defendants to the offices which they hold and claim the right to hold, only those sections will be examined under which they claim power. State v. Baughman, 38 Ohio St., 455.
    The petition of relator attacks the title of defendants to certain offices, but the brief of relator proceeds on the theory that the petition asks that the city of Cleveland be ousted from the enjoyment of any of the provisions of the act of March 16th. The argument is made as though there were a petition to oust the municipality from having the offices, and not against the officers from filling those offices. This court, in State v. Newark, in 57 Ohio St., 430, has in substance said that the powers of the municipality cannot be tested in that way. The court in this present case will consider the sections which are claimed by defendants to be the source of their powers, and will not consider other sections.
    And now, returning to the proposition which we are considering, we claim that there is no unconstitutionality in any of the provisions granting these defendants, either individually or collectively, the powers which they exercise, under authority of the sections above enumerated of the act of March 16th, but, if, for instance, as claimed by relator, the powers given to the director of charities and correction by Sec. 66 of this act, to “discharge any person committed to the workhouse,” is invalid, or if some other detailed and minute provision should be invalid, that would not affect the validity of the law, or the title of the respective defendant, on the well known principle of partial validity and partial invalidity herein-before considered.
    In this discussion defendants have assumed that the power of the legislature to classify cities is a constitutional power. They haAre assumed, and do assume, that this distinguished court will consider this case, recognizing that power. It seems clear to them that the act of March 16th is valid, judged by the law as heretofore declared. This court Avill not search for some phrase or expression in that act on which to rest a finding of invalidity of the entire act. Unless ready to ignore all that has been said and done in the last fifty-one years, and ready to overrule the doctrine of classification totally, it will not find this law invalid. That doctrine has doubtless led to abuses. It is possible that the abuses may be remedied without a step so revolutionary as the repudiation of the doctrine. Some of those abuses have already been remedied. The abuse known as “ripper legislation” has been largely remedied by public opinion. The decisions of this court during the last eight years, applying strictly Sec. -26 of Art. 2, have had a strongly remedial effect.
   Shauck, J.

The admission that the act confers corporate powers, and that it, in fact, confers them on the city of Cleveland alone, would be equivalent to an admission that it is repugnant to Sec. 1 of Art. 18 of the constitution, but for the contention based upon the classification which is employed in defining the operation of the act. Our reasons for the conclusion that the classification is ineffectual for the purpose for which it is invoked are sufficiently stated in the preceding case of The State ex rel. Knisely et al. v. Jones et al. ante, 453. Perhaps a careful consideration •of the eighty-six sections of the present act would afford additional reasons for that conclusion, but those stated in the case cited are deemed sufficient; and except as they are passed on in that case, objections urged against the validity of the present act are not considered.

Although the two acts are adjudged to be void for the same reasons, some attention seems to be due to the effect of judgments appropriate to the conclusion that both acts are ineffectual to confer the powers claimed. In that case the relators sought to be admitted to office under favor of the act which was adjudged to be void. The judgment denied their claim, leaving the defendants in office to continue in the discharge of its duties. In the present case the same conclusion with respect to the invalidity of legislation of the same character points inevitably to a judgment of ouster, leaving no one to exercise the func'tions of the offices, some of which seem to be indispensable to the orderly conduct of the affairs of the city of Cleveland.

On the hearing of the present case some members of the court, including myself, were inclined to the view that as this legislation had been permitted to become operative, and to affect in important respects the de facto government of the city, the inquiry should be regarded as too late, but that inclination is completely checked by attention to the considerations involved. The attorney general has invoked a jurisdiction which we undoubtedly possess; and this he has done in the discharge of his duty and in a manner conformable to established practice. It is admitted that no limitation bars inquiry into the title of the defendants. In this posture of the case we can neither refuse to act, nor act otherwise than in accordance with our views of the requirements of the constitution.

“Acquiescence for no length of time can legalize a clear usurpation of powers where the people have plainly expressed their will, and the constitution has appointed-judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period in violation of the constitutional prohibition without the mischief which the constitution was designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question, but these circumstances cannot be allowed to sanction a clear infraction of the constitution.”

Cooley’s Constitutional Limitations, 85 and 86.

But this is a public action, instituted and conducted solely for the protection of the public against injuries to result from infractions of the constitution, and while a judgment of ouster mpst follow our conclusions, we think public considerations will justify such suspension of its execution as will give to those discharging the duties of the other departments of the government of the state an opportunity to take such action as to them may seem best, in view of the condition which the execution of our judgment will create; and this suspension will be until the 2nd of October, 1902.

Demurrer to the answer sustained; judgment of ouster; execution of judgment suspended until October 2, 1902.

Burket, Spear, Davis and Price, JJ., concur.