text:
    Maud et al. v. Maud.
    This court has no power to rehear a cause decided by the late supreme court commission on the ground that the same was erroneously determined.
    Motion for a rehearing of a cause decided by the late Supreme Court Commission.

      Hoadly, Johnson, and Colston, for the ‘motion.

      Thomas Millikin and Israel Williams, contra.
   By the Court.

The original action was brought in the Court of Common Pleas of Butler county to declare a trust. On appeal the district court gave judgment for the plaintiff, which, upon petition in error, was reversed by the late supreme court commission, and the cause remanded for a new trial. A motion is now made for a rehearing, on the ground that the commission omitted to decide an important question involved in the case. The motion is overruled. This couit has no power to rehear a cause decided by the commission, on the ground that the same was erroneously determined.

Motion overruled.


source: Caselaw Access Project

author: Boynton, J.

license: Public Domain

text:
    Malone v. The City of Toledo et al.
    Under the constitution of 1802, the legislature, in the exercise of the right of eminent domain, possessed the power to appropriate to public use the fee simple title to lands, where, in its judgment, the public necessities required it; and the title acquired by the state by the appropriation of lands for canal purposes, under the eighth section of the act of February 4, 1825 (2 Chase, 1472), was an absolute estate in fee.
    Appeal. Reserved in the District Court of Lucas county.
    The original action was brought by the plaintiffs in error against the city of Toledo, under section 557 of the code, to quiet his title to that part of lot No. 309, in Port Lawrence division of the city of Toledo, which was formerly used and occupied as a part of the Wabash and Erie canal. The answer set up, among other things, certain proceedings from which it appeared that, in the year 1836, the land in controversy was appropriated by the state for canal purposes, under laws then in force authorizing the appropriation of the fee simple title, and that the state, in 1868, granted said premises to the city of Toledo, for highway, sewerage, and water purposes, in pursuance of an act of the legislature of March 26, 1864, and that, on the 2d day of March, 1871, the state granted all its remaining interest in the premises to the city of Toledo, in pursuance of an act of January 31, 1871.
    To the defense setting up the proceedings of appropriation the plaintiff demurred. The court of common pleas overruled the demurrer, and, on appeal to the district court, the case was reserved for decision here.
    The case was transferred to, and decided by, the supreme court commission, and will be found reported in 28 Ohio St. 643. The court overruled the demurrer, and remanded the cause to the district court for further proceedings, where the plaintiff filed an amended petition making Isaac P. Pugsley a party defendant, to whom the city had, during the pendency of the action, conveyed the premises.

      The petition stated facts sufficient to show title in the plaintiff, unless the special facts stated established title in the defendant Pugsley. They were, so far as is necessary to state them, as follows :
    That in or about the year 1836, the board of canal commissioners of the State of Ohio, acting under and by authority of an act of the legislature of the said state, passed February 4, 1825, entitled “ an act to provide for the interna] improvement of the State of Ohio by navigable canals,” determined that it was necessary for the prosecution of the improvements intended by said act, for them to enter upon, take possession of, and use the said premises for the purpose of constructing said Wabash and Erie canal (afterward known as the Miami and Erie canal) thereon, and they did thereupon, by virtue of the authority in them vested by said act, and under and by virtue of no other power or authority whatever, so enter upon and take possession of said premises, and did construct said canal thereon, as a part of the Manhatten branch thereof, and did occupy and use the said premises for that and for no other purpose, until in or about the year 1869.
    That prior to said last named date, and in or about the year 1868, the said state, acting by its governor, under the authority of an act of its legislature passed March 26,1864, and entitled “ an act to authorize the city of Toledo to enter upon and occupy a part of the Miami and Erie canal as a public highway and for sewerage and water purposes,” did grant to the said city of Toledo, defendant herein, authority and permission to enter upon, improve, and occupy forever, as a public highway, and for the use of water pipes, and for sewerage purposes, all that part of said canal known as said Manhatten branch, and including the said . premises of this plaintiff.
    That in or about said year 1869, said state entirely abandoned said Manhatten branch of said canal, for canal purposes, and the only use and purpose for which said premises were taken and used by the said state, has wholly and forever ceased and determined.

      That as plaintiff is informed, and believes, the said premises of this plaintiff were never given or granted by the owner thereof to said state, nor was any interest whatever therein, or any right to take, use, or occupy the same, for any purpose, ever so given or granted.
    That the then owner of said premises had notice of the entry upon, use, and occupation of said premises, in the manner and for the purposes aforesaid, but made no application to said commissioners for the appointment of appraisers to make .any estimate or appraisal of the loss or damages thereby sustained.
    That no estimate or appraisal of the loss or damages to the owner or proprietor, or any party interested in said premises, was ever made, nor any damages or compensation paid to said owners or parties for said premises, or any right or'interest therein, but that the said state appropriated and took possession as aforesaid of said premises, for the purpose of constructing and maintaining thereon a public navigable canal.
    .But that notwithstanding its abandonment of said premises, for the uses and purposes of a canal, as above set forth, yet said state claiming, and pretending to have some interest still remaining therein, did thereafter, and on or about the 2d day of March, 1871, by deed of conveyance, in due form of law, executed by the governor of said state, acting under authority of an act of its legislature, passed January 31,1871, and entitled “ an act supplementary to an act to authorize the city of Toledo to enter upon and occupy a part of the Miami and Erie canal as a public highway, and for sewerage and water purposes, passed March 26, 1864,” undertake to give and to grant to said city of Toledo, whatever interest there remained to the said state in or to said lands, so before such abandonment by it occupied, including the said premises of this plaintiff.
    That said city has never entered upon said premises of this plaintiff or occupied the same, nor any part of them, as a public highway, or for sewerage or water purposes, or for any other public use or purpose whatever.

      That said city has conveyed the same, by deed purporting to be an absolute conveyance, to said defendant Isaac P. Pugsley.
    The defendants filed several demurrers to the petition, for want of sufficient facts to constitute a cause of action.
    The case went to the district court by appeal, and, on motion of both parties, was reserved for decision here.

      Pratt § Wilson and Joshua B. Seney, for plaintiff in error.

      Kent, Neioton § Pugsley and J. K. Hamilton, for defendants in error.
    (The argument of counsel is given in 28 Ohio St. 648.— Rep.)
   Boynton, J.

The parcel of land, the title to which is the subject of the present controversy, was appropriated in 1836 for caual purposes, under the act of February 24, 1825. 2 Chase’s Stat. 1472, § 8. "When the case was before the supreme court commission, it did not appear that the city of Toledo had parted with its title, or contemplated to devote the property to private uses. The question, therefore, which is now presented, was not decided. The state, by its canal commissioners, having appropriated the land for canal purposes, under the act of the above date, it was held competent for the legislature to devote the same to the uses of a public highway, without working a reversion in favor of the original owner of the soil. 28 Ohio St. 643.

The question now presented has exclusive reference to the extent of interest, or quantity and duration of the estate, acquired by virtue of the act of appropriation. It is contended by the plaintiff that the interest acquired consisted only of an easement, or, at most, of a fee limited, in its duration to a use of the land for the purposes for which it was appropriated, or for purposes of a similar nature; and that when such use was discontinued or abandoned, the estate was determined and the land reverted.

This position is founded, in argument, on two propositions — first, that the legislature possessed no power, under the constitution of 1802, to appropriate an absolute fee in lands for canal purposes; and, secondly, if the power existed, that no such estate or interest was in fact authorized t j be taken by the act under which the appropriation was made. Both of these propositions are denied by the defendants.

We think there is little doubt that the power of eminent domain, vested in the legislature by the constitution of 1802, was fully adequate to reach and subordinate to the public use an estate in fee simple in lands and tenements, in all cases where the public necessities required it. The power is a legislative one, and was included in the general grant of legislative authority which that constitution vested in the general assembly. The only restriction or limitation upon 'its exercise was found in the fourth section of the bill of rights, which declared that “private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.”

The only conditions that were requisite to the exercise of the power were the needs of the public and compensation to the owner; and, when these conditions existed, the right of the state to withdraw the property from the control of the owner, and to subject to the public use,whatever interest or estate was necessary to subserve the purposes for which the same was taken, was complete and perfect. Giesy v. C., W. & Z. R. R. Co., 4 Ohio St. 308.

A glance at the decided cases will show this principle to be firmly established.

In Dingley v. The City of Boston, 100 Mass. 544, the construction of a statute was involved which authorized the appropriation of lands by the city to enable it to abate a public nuisance by raising the grade sufficiently to secure proper drainage. It was held, in view of the terms of the statute, that the fee vested in the city as absolute owner.

In Heyward v. The Mayor of New York, 3 Seld. 314, land had been acquired by proceedings, in invitwm, for the purpose of an almshouse extension, under a statute authorizing the appropriation of a fee. After years of occupancy, it was determined to change the location of the almshouse to another quarter, and the ground so condemned was laid out into lots by the city, and sold at public auction. It •was contended that the legislature had not the power to take the fee, free from a resulting right in the original owner to re-enter when the use for which it was taken was abandoned, or ceased to exist. It was, however, held, that the statute vested a fee in the public, and that no reversionary estate remained in the original owner. In Rexford v. Knight, 1 Neman, 308, the absolute fee in the land taken for the Erie canal was held to vest in the people. In Haldeman v. The Pennsylvania Central R. R. Co., 50 Penn. St. 425, it was held that the state, having acquired a fee simple in lauds taken for the use of the public works, a cessation of that use would not revest the title in the former owner.

To the same effect are : United States v. Harris, 1 Sumner, 21; Chase v. Sutton Manufacturing Co., 4 Cush. 152; Coster v. The N. J. R. R. Co., 3 Zab. 227; Plitt v. Cox, 43 Penn. St. 486.

It is equally well settled, that it is for the legislature to determine the estate or extent of the interest which the public necessities require; whether an estate for years, for life, a mere easement, or a fee absolute or conditional. "Where the property is confessedly unnecessary for the purpose for which it was taken, or is for a mere private use, no doubt the courts may interfere. In the Matter of Albany Street, 11 Wend. 156; Embury v. Conner, 3 Comst. 511. But, as respects the necessity and propriety of the appropriation, and the duration of the estate to be acquired, legislative determination is final and conclusive. Cooley’s Lims. § 558.

It remains to be considered whether said act authorized the taking of the whole interest in the property, or limited the estate or interest to be acquired to a mere easement or conditional fee. The eighth section of the act conferred -the power upon the state, through its authorized agents, to ■“enter upon and use, all and singular, any lauds, waters, streams, and materials necessary for the prosecution of the improvements intended by the act,” and provided, “ in case ■any lands, waters, streams, or materials taken and appropriated for the purposes aforesaid, shall not be given or granted to the state,” that, on the application of the owner, a just and equitable estimate and appraisal of the loss or damage, if any, over and above the benefit and advantage .accruing to the parties interested in the premises, should be made. It further declared, that the “ canal commissioners shall pay the damages so to be assessed and appraised, and the ‘fee simple’ of the premises so appropriated shall be vested in the state: Provided, however, that all such appli■cations to the board of canal commissioners for compensation for any lands ... so appropriated shall be made within one year after such lands . . . shall have been taken possession of by said commissioners for the purposes aforesaid.” This section prescribes three modes of acquiring title — by gift, purchase, and by appropriation. It is very manifest, from the words of the act, that the estate acquired by appropriation was either an absolute fee in the property taken, or a fee on condition that the land continue to be used and occupied for the use of the canal, or for purposes of a similar nature. A mere easement would not have been described as a fee simple. Hence, the land, on its abandonment for public uses, if a conditional fee was taken, would revert to the original owner, or to his grantee •of the specific parcel, and not to the grantee of the adjoining lands. But, when the language of the statute is considered in connection with subsequent acts relating to the .same subject matter, and with the nature and character of the work contemplated, and the meagre means of transit then existing, or which the future promised, it is very apparent that the improvement was expected and designed to be of permanent duration ; and, consequently, that the term “fee simple,” employed to define the estate to be acquired by appropriation, was used in its strict legal sense, importing an absolute estate of inheritance. That, the same interest or estate was intended where the lands were taken under the statute as where the title was acquired by donation, or purchase, would seem to be perfectly obvious; and. that the title acquired by grant from the owner embraced the fee divested of all conditions or limitations, is made-very clear. The fourth section provided, that for the purpose of carrying into effect the object contemplated by the act, a fund should be constituted, to be denominated a canal fund, to consist of such appropriations, grants, and donations as might be made for that purpose by the legislature of the state, and by individuals.

And by the second section of the act “ to provide for the increase of the canal fund by the purchase and sale of real estate,” passed February 7, 1826 (24 Ohio L. 58), the canal commissioners were authorized to sell all such lands and town lots as theretofore had been, or thereafter might be, given, granted, or ceded to the state for the benefit of the canal fund, other than those which were situated at points or places on or adjoining the line of the Ohio canals, where-the surplus water produced could be advantageously used for hydraulic purposes.

Construing these statutes together, being in pari materia, it is very apparent that the title acquired by the state to-lands donated and granted in pursuance of the provisions-of the act of 1825 was the absolute estate in fee. These acts evidently contemplated donations, grants, and cessions of lands for the purpose of insuring the construction of the-canal, which would not be needed for any purpose immediately connected with its operation. Hence provision was made for their sale. Appropriations for such purpose could not be made. But the canal fund was made up of all acquisitions for canal purposes; and if the fee simple was acquired in some of the lands constituting this fund, and a fee conditional or determinable in others, it would follow that the right of the state to a portion of such fund would be absolute, and to the other only conditional. This condition of ownership could not have been designed.

The title to the land appropriated was of the same char•acter, in point of interest or estate, as that granted in perpetuity.

It is, however, said that if, upon a just construction of the statute, power to appropriate the entire interest in the property was conferred, no title could be acquired until ■compensation was paid; that the language declaring that the “ fee simple of the premises so appropriated shall vest in the state, implies the necessity of paying the damages sustained by the owner as one of the conditions necessary to divest him of his title. Were it not for the fact that the statute limited the time within which the application for compensation was to be made, there would be some force in this position.

It was held in New Tort, in giving construction to similar language in the statute of that state, that the meaning ■of the words “ so appropriated” could only be satisfied by making the compensation required, and that the fee simple would not vest until the money was paid. Brinkerhoff v. Wemple, 1 Wend. 470.

But this holding was had before the owner was limited to any period of time within which to make claim for dam.ages. Under a subsequent enactment that no claim for damages should be received, unless filed within one year, and declaring the property so appropriated should be the •property of the state, it was held that where no claim was made for damages, the title vested in the state as fully as when compensation was made. Rexford v. Knight, 1 Kern. 308.

If actual payment of compensation was required before title to the property appropriated could be acquired by the state, notwithstanding the limitation contained in the proviso, it would necessarily follow, in cases where no application was made, and consequently no damages assessed, that mo interest or estate of any kind would vest in the state. All that the owner need do in such case to defeat the acquisition of title by the state would be to withhold his application for damages. The result in such case would be that the state would, be using land for public purposes to-which it had no title, and no means, without further legislation, of acquiring it. That no estimate or appraisal ^f the loss or damage was made when the lands in question were taken is attributable solely to the omission of the owner to make application therefor. He having had notice of the appropriation, and provision having been made by which compensation could be obtained, the title of the state-was as complete, after the expiration of one year from the-date of the taking, as if compensation had in fact been made. By omitting to apply for compensation, the right thereto was waived.

It is finally claimed, that because, in determining the compensation the owner was eutitled to receive for.the land taken, the benefits he derived from the improvement were to be considered, and from the further fact, that the benefits which were expected to arise from day to day from the use and operation of the canal, have ceased, the consideration upon which the right to further occupy the-premises has also ceased, and hence that the title to the land reverts to the original owner. This objection, as applied to the facts of the present case, only goes to the validity of the statute; as it appears, from the petition, that no claim for damages was made by the owner, and hence no question of benefits could have been considered. Non constat,. that the owner of the parcel of land in controversy was at all benefited by the canal improvement, or was the owner of any other property, in the vicinity of the canal, which-could be at all affected by its construction and operation; and, hence, if application had been made for compensation, he might have received the full value of the laud' in money. But the question is not an open one, that in measuring the compensation the owner of property taken under the constitution of 1802 for public use was entitled to receive, the benefits by him derived from the-improvement were the proper subject of consideration, in ascertaining the value of the land taken. Symonds v. Cincinnati, 14 Ohio, 147, 541; Kramer v. The C. & P. R. R., 5 Ohio St. 140. Compensation in money was to be made for actual loss, and this was determined by deducting from the value of the land before the improvement, the value of what remained after the improvement was constructed, Id. 145. This point was fully determined in the cases last above cited. From the cases cited in argument from the States of New Fork, Indiana, and Pennsylvania, it will be seen that the construction there given to similar and analogous statutes, are in full accord with the conclusion. Fere reached.

The state having acquired the whole interest in the property in controversy by the act of appropriation, it folows that the title acquired by the city of Toledo embraced the whole estate.

Demurrers to the petition sustained, and petition dismissed.'


author: Gilmore, 0. J. Okey, J.

text:
    Chamberlain v. The City of Cleveland et al.
    1. To enable a municipal corporation to pay for a local public improvement it may, by assessment, take from an individual whose lands are subject to assessment and specially benefited by the- improvement, such a portion of the costs thereof as is the equivalent, but not in excess, of the special benefits conferred thereby.
    2. The whole amount of the assessment must be apportioned amongst the several lots and parcels of land specially benefited, in the proportion that the special benefit to each lot or parcel bears to the whole special benefits conferred by the improvement.
    8. Where the proceedings in an appropriation assessment, on the principle of special benefits, merely show upon their face, that the aggregate amount of the assessment is placed on “ benefited property,” it will not be conclusively presumed that the assessment is limited to the special benefits conferred, or that it has been properly apportioned amongst the several lots or lands assessed.
    4. If the opening of a street rendered it practicable to open another contemplated street which could not have been opened before, and this fact of itself specially benefits lots adjacent to the new street, such special benfits may properly be considered in estimating the special benefits conferred by the opening of the new street.

      5. Where the assessingboard made an assessment on the basis of $157,749.89, and the equalizing board added over $9,000 to the assessment, and equalized it on the basis of $166,777.50: Held, That the action of the equalization board was unauthorized.
    6. An assessment that was provided for in the ordinance ordering land to be appropriated for the opening of a street, may be subsequently made and collected to pay the costs of the appropriation, although the city, in anticipation of the collection of the assessment, and to enable it to pay for the lands, may have issued its bonds and pledged the faith of the city for their payment, and notwithstanding the bonds, owing to delays in making the assessment, may have been paid before the assessment was collected.
    7. After notice of the assessment is given, as required by section 585 of the municipal code of 1869, all persons interested are bound to take notice of the subsequent proceedings.
    8. The per centum limitations contained in section 543 are to be ascertained by the actual value of the benefited property, at the time and in view of the appropriation.
    9. Where the city council determines that the amount of the assessment does not exceed the value of the benefits specially conferred, its judgment in the premises, in the absence of fraud, is final and conclusive, unless modified by the council before the final confirmation, as provided in section 588; but when the municipal authorities, in levying special assessments, do not undertake to determine the amount of the special benefits conferred, either in respect to the amount assessed, or in the apportionment of the burden, the assessment may be enjoined; and in an action for that purpose parol evidence may be introduced to show that the authorities did not act on the proper basis.
    Error to the District Court of Cuyahoga county.
    There are a number of cases known as the “ Bond street assessment cases,” which were argued, considered, and decided together, one decision disposing of them all. All the questions decided are raised in the cases, although it may be that they are not all raised in the Chamberlain case, which is simply a representative ease, and it is reported as such. The facts stated are common to all the cases.
    On the 23d of September, 1873, the city council of the city of Cleveland passed an ordinance “ to lay out, open, and extend Bond street, from Superior street to Euclid avenue,” and provided therein that the cost and expense thereof “ shall be levied and assessed upon the lots or par■cels of land benefited thereby, as provided by the act of the general assembly of the State of Ohio, passed April 12, 1873.”
    The property was condemned by proceedings under the ■statute in the probate court, and the damages and costs amounted to $119,539.
    Afterward, on the 12th of May, 1874, for the purpose of paying the damages and costs so incurred, the council passed an ordinance to authorize the mayor to issue the bonds of the city to the amount of the damages and costs, as above stated, the bonds to bear date March 1, 1874, be issued in equal amount, and fall due as follows : One-fifth on the 1st of September, 1876, and one-fifth annually on the 1st day of September, 1877, 1878, 1879, and 1880 respectively, and to bear interest at the rate of seven per cent, per annum. For the payment of the principal and interest of the bonds the real and personal property and faith of the city'were pledged. The ordinance required the bonds to be designated as “ street improvement bonds,” with the name of Bond street written or printed thereon, which was done.
    ■ On the 31st of March, 1874, by resolution, the council appointed “ three disinterested freeholders,” as a board of assessment, “ to report to this council an estimated assessment ■on the property to be charged therewith, to pay the damages and costs incurred in opening and extending Bond street,” ■etc.
    This board made a report, which was sent to the equalizing hoard, and the latter made a reports which was rejected by the council. The record does not show what these reports were, and this assessment seems to have been .abandoned.
    On the 6th of April, 1875, the council resolved: “ That the board of improvements be, and they are hereby, requested to prepare an estimated assessment, as required by law, of the costs and expenses incurred in the extension of Bond street, and report the same to this council.”
    On the 7th of October, 1875, the board of improvements,' through its clerk, submitted an “ estimated assessment upon the property benefited, to pay the damages and costs incurred in opening and extending Bond street.”
    The assessment is made part of the record, and it is without caption or conclusion. It locates the lots assessed, gives .their frontage, the rate per front foot, and the amount assessed on each lot. The whole amount assessed was $157,-749.89.
    Objections having been filed to this assessment, the council, on the 18th of January, 1876, “Resolved, That Peter Dieman, Adolph Guider, and P. K. Walsh are hereby appointed a board of equalization, to equalize, according to law, said assessment,” etc.
    On the 28th of February, 1876, the equalizing board made a report to the council of the “ equalization of the assessment ” for paying the costs of opening Bond street, which was accompanied by a recommendation from the board of improvement “ that the assessment be confirmed.”
    This report is made part of the record. By way of caption to the report, a “ detail of the costs and expenses incurred for opening and extending Bond street, to he paid in five yearly installments, with interest thereon,” is given, which aggregates $166,777.50, which is more than $9,00<> in excess of the amount assessed by the assessing board. The record does not show by what authority the equalizing board made this addition to the amount assessed. In equalizing the gross amount stated in the caption, the equalizing board takes the same property described in the report of the board of assessment, and arrives at the amount imposed on each lot at a given rate per front foot.
    . On the next day after this report was filed, the council “ referred it to the hoard of improvement, with request to report at the next meeting.”
    On the 6th of March, 1876, the board of improvements reported the equalized assessment' back to the council with a recommendation that it be confirmed according to law,, and on the next day it was confirmed by the council.
    On the 2d of May, 1876, the council, by ordinance “ assessed a tax in accordance with the assessment made for that purpose (the opening of Bond street), and confirmed, by the city council March 7, 1876,” payable in five installments, to pay the maturing bonds and interest, etc.
    Before the assessment was placed on the county duplicate for collection, the plaintiff below (who is also plaintiff in error) commenced an action against the city of Cleveland to restrain it from placing or causing the assessment to be placed on the county duplicate, and, subsequently, the auditor and treasurer of Cuyahoga county were made par-, ties, and a temporary order restraining the collection of the-assessment was obtained, which was continued by subsequent orders of the court until the cause was finally heard in the district court on appeal.
    The plaintiff, in his petition, specially sets forth fourteen grounds upon which he claims that the assessment is illegal and void; and, without specifying them here, it is sufficient to say, that they raise the questions that are decided, by this court in reference to the legality of the action and proceedings of the council, board of assessment, and equalizing board, as they appear in the opinion.
    The answer denies that the proceedings and assessment are illegal in any respect, and avers that the plaintiff, by his-long acquiescence is estopped from denying the validity of the assessment.
    On the trial, the plaintiff took a bill of exceptions, which, is made part of the record, from which it appears that the plaintiff introduced as a witness Adolph Q-uider, one of the equalizing board, and proposed to prove by him that “ the equalizing board did not make this assessment in proportion to the benefits derived from the opening of Bond street alone, but were actuated by other motives, and were controlled by the benefits that might result from the opening of a contemplated street from Bond street to Erie street, for which the city of Cleveland appropriated the land in April, 1874, but of which the city had not taken possession.”
    By the same witness the plaintiff also proposed to prove,, “that in making the assessment upon the lot of the plaintiff, no regard was had to what would be termed actual benfits after the improvement was made, or by reason of the improvement, but that so much was put upon that lot in order to fill up upon the whole territory the amount that was proposed to be levied upon it, and that they did not regard the benefits, if any they were, to this particular lot as equal to the taxes that they put upon it.”
    Also, “ that the board did not, at any time, estimate the amount of benefits derived from this improvement as equal to the taxes they put upon it, and to prove that the benefits, in fact, were not estimated by the committee, but that a gross amount was put upon the lot without regard to such benefits.”
    To all of which proposed testimony the defendants objected. The court sustained the objections, excluded the testimony, and the plaintiff excepted.
    "Without objection, testimony was introduced by both parties, tending to show the value of the assessed property in the spring of 1874, being the rime the city paid for, took the property appropriated, and threw it open to the public, but before the street was improved by grading, paving, etc. The plaintiff offered to prove the value of the property in the spring of 1876, when the assessment was made and confirmed, to which the court sustained an objection, and the plaintiff excepted.
    .The district court dissolved the injunction, dismissed the petition, and rendered judgment for costs against the plaintiff.
    This is a proceeding in error to reverse the judgment •of the district court.

      E. P. Eanney, F. J. Fiehnan, E. P. Spaulding, Grannis A¡ Griswold and F. J. Fstep, for plaintiff in error.

      Meisley, Weh $ Wallace, for defendants in error.
   Gilmore, 0. J.

The proceedings out of which the controversy in this case has grown, were instituted before the •council of the city of Cleveland, for the opening and extension of Bond street, and the appropriation of lands necessary for that purpose.

The sections of the municipal code that need be here particularly referred to as applicable to the proceedings are the 539th section, as amended April 12, 1873 (70 Ohio L. 126), which provides, among other things, that the council “ shall have power to assess the costs and expense of such appropriation and improvement upon the lots and lands benefited thereby, including lots and lands that are contiguous and adjacent as well as those that abut upon said street;” and section 583, which, as amended at the same time, prescribes the mode of appropriating the property sought for the purpose of opening and extending a street, and also further provides a3 follows: “ The assessments made for the purpose of opening, extending, and widening such street, alley, or highway shall be made and approved in accordance with the provisions of sections 577, 578, 582, 584, 585, 586, 587, 588, and 589, and subject to the limitations in section 543 (as amended May 2,1871) of an act entitled an act to provide for the organization and government of municipal corporations, passed May 7, 1869, to which this act is amendatory.”

Section 584, which, is one of those referred to, reads as follows: “ In all eases in which it is determined to assess the whole or any part of the cost of any improvement upon the lots of lands bounding or abutting upon the same, or upon other lots and lands benefited thereby, the council may require the board of improvements, or may appoint three disinterested freeholders of the corporation or vicinity, to report to the council an estimated assessment of such cost on the lots or lands to be charged therewith, in proportion, as nearly as may be, to the benefits which may result from the improvement to the several lots or parcels of land so assessed, a copy of which assessment shall be filed in the office of the clerk of the corporation for public inspection.”

The other sections referred to in section 583, as amended, with the exception of section 543, which contains certain per centum limitations, point out the manner in which the power conferred by section 539 is to be exercised.

This section (539), as amended in 1873, is the first law in this state that authorized municipal corporations to levy assessments to pay for street improvements, or for land appropriated for opening and extending streets, on the “ property benefited thereby,” without reference to frontage •or the value of the abutting property as assessed for taxation.

The plaintiff here is the owner of a lot fronting seventy-three feet on Superior street, adjoining Bond street, and extending back 250 feet. It is valued and placed on the •duplicate for taxation at $18,018.

Bond street was opened and extended about thirty rods, .and, to pay for the lands appropriated for this extension, the plaintiff’s lot is assessed $14,600. He seeks to enjoin the collection of the assessment, on many grounds, including this — that it invades his right of private property, in violation of several provisions of the constitution.

All the assessment cases heretofore decided in this court were frontage assessments, and apportioned by frontage. Jt is well settled that such assessments, when properly made by municipal corporations, to pay for street improvements, are constitutional. But it does not seem to have been considered necessary, in any of the decided cases, to look very carefully into the constitutional limitations that .are imposed on the exercise of this power, and hence these limitations have not been fully ascertained and announced •'in any of the decided cases.

This is the first case, in this court, in which the assessment was made on the principle of special benefits, without refer•ence to frontage. In addition to the interests which the plaintiff has at stake in the ease, the subject is of such general importance as to justify a recurrence to the nature of the right .and power of taxation — general as well as special — and the limitations that exist upon the exercise of the power; whether such limitations are imposed by the fundamental law of the state, by principles applicable to the nature of the subject, or by the statute delegating the power of assessment to municipal corporations.

The right of taxation in the state may be said to be founded on necessity, for it is so essential to its existence that it can not be surrendered by it, or reclaimed by the people while it continues to exist. It is, therefore, said to inhere in the state as a part of itself. The same may bo ¡said of the power which is designed to enforce the right.

In the distribution of power, our constitution vests the taxing power in the legislative department. Inasmuch as •the right of taxation is based on necessity, the power must be commensurate with the right, and the state, through the the legislature, may legitimately exercise the power of general taxation, on the objects to which it is applicable, to an •extent limited ouly by the discretion of the general assembly, or by the restrictions expressly imposed on its exercise by the source of power — the people, or by restrictions implied from the nature of the subject.

In all forms of civilized government, experience has proved that there is no other power more liable to abuse than that of taxation, or that is more detrimental to ultimate public prosperity, or more destructive in its consequences to the private property, rights, and interests of the individual, than it is when abused.

In formiug the constitution of this state, the necessity for taxation is recognized on the one hand, and the dangers incident to the exercise of the power on the other; and to provide what was necessary for the one, and against the dangers of the other, article 12 of the present constitution was adopted.

It prohibits one form of odious taxation, and forbids the contracting of debts by the state for internal improvements, which might be so used -as to create a necessity for oppressive taxation.

It then provides that the state may raise revenue by taxation, “ sufficient to defray the expenses of the state for each year, and also a sum sufficient to pay the interest on the state debt,” all of which must be raised in pursuance of laws distinctly stating the object for which the tax is levied. The second section furnishes the basis for the levy and the rule of apportionment. Its operative words are as follows: “ Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise; and also all real and personal property, according to its true value in money.”

By the provisions of this article, therefore, the purpose, the mode, and the extent to which this power can be legitimately exercised are all clearly expressed. The basis for the levy is the money value of the thing taxed, and the apportionment must be by an ascertained rate or per centum,, which causes the burden to rest uniformly and equally on all the property in the state. And, by judicial construction, this article is as applicable to counties, townships, and municipal corporations, as it is to the state, and furnishes the governing principle for all laws authorizing taxes to be levied for either purpose. Zanesville v. Richards, 5 Ohio St. 589.

After all the care that has been thus taken to restrict the powers of general taxation, and to cause the burdens created by it to rest uniformly and equally upon all, it would be-astonishing to find that dangers incident to the assessment mode of taxation, which are very great, had been entirely overlooked in framing and adopting the constitution, and that the powers of this mode of taxation are subject to no-limitations or restrictions except the discretion of the general assembly. If such a discretionary power is vested in the general assembly, it is very clear that it may be used to subvert section 19 of the bill of rights, and private property will not be inviolate, but at the mercy of a discretion under which it may be taken from the owner without compensation, and be gratuituously given to the public.

But the subject was not overlooked, and' I think it can be shown, (1.) That this mode of taxation is restricted by the legal principles applicable to it; (2.) that the constitution not only recognizes those restrictions, but requires additional restrictions to be imposed, if necessary, to prevent the abuse of the power; and, in. addition, to these, (3.) that by legislative construction, these restrictions are recognized and enforced.

1. The right that gives to municipal corporations the privilege of resorting to this mode of taxation, is not, like the right of general taxation in the state, founded on necessity; on the contrary, the right of a municipal corporation to assess private property to pay for a local public improvement is not founded on necessity but on a principle of justice, by which the public may take from an individual whose lands, owing to their proximity to it, are specially benefited by the improvement, such a portion of the cost thereof, as is the equivalent, but not in excess, of the special benefits conferred by the improvement; and this principle of justice, in itself, impliedly furnishes the measure of, and limits the extent of the right.

To show that the assessment is confined to such property, and limited to the value of the special benefits conferred as' above indicated, see Scoville v. The City of Cleveland, 1 Ohio St. 126; Hill v. Higdon, 5 Ohio St. 243; Meissner v. Toledo, 31 Ohio St. 387; Tide Water Company v. Coster, 3 C. E. Green, 518; Hammett v. Philadelphia, 65 Penn. St. 146; Thomas v. Gaines, 35 Mich. 156; Nicols v. City of Bridgeport, 23 Conn. 204; Matter of Flatbush Avenue, 1 Barb. 286; Matter of Fourth Avenue, 4 Wend. 452; Matter of Albany Street, 11 Ib. 149; Matter of William and Anthony Street, 19 Ib. 678; Emmerson v. Saltmarshe, 7 Ad. & El. 266; Dore v. Gray, 2 T. R. 358; Stafford v. Hamston, 2 B. & B. 691, and the numerous cases therein referred to.

This mode of taxation is not a necessity to the state, for its treasury is not replenished by its exercise. It is not a necessity to municipal corporations, for they could, and many of them do, exist, and exercise all the functions necessary to their existence without its aid, by making and paying for their local public improvements by general taxation. Still, if a municipal corporation sees proper to avail itself of the assessment mode of taxation to pay in whole or in part for local public improvements, and in making such, the property of individuals, owing to its proximity to the improvement, is specially benefited, it is but just that such property should pay toward the cost of the improvement a sum that is equal to the value of the- special benefits conferred, for to this extent it is peculiarly benefited over and above that of other individual members of the public. But when the property has paid the value of the special benefits so conferred, its owners stand in the same relation to any residue of the cost of the improvement remaining unpaid, that other members of the public do, and all must bear the burden of paying such residue by general taxation. If a sum is exacted in any instance,, in excess of the value of the special benefits conferred, it is, as to such excess, in that instance, private property unjustly taken for public use without compensation to the owner.

The power of assessment in a municipal corporation can only be commensurate with the right it is designed to enforce; and, although it is said to be a part of the taxing power of the state, is not an inherent, but a power that must be expressly delegated, and when this is done, it is subject to the restrictions imposed by the terms in which it is delegated, or by the principles applicable to the subject which is the object of it.

2. The word “ assessment ” is used but once in the constitution in connection with “ taxation,” and this is in section 6, of article 13. The section reads thus : “ The general assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such power.”

The general assembly had already been invested with the legislative power of the state by the first section of the second article, which embraces the power to organize municipal corporations, and also to control all the subjects to which the section relates. I therefore regard the section as essentially mandatory and restrictive. It is a mandate to the general assembly to do two things (1) to “ provide for the organization of cities and villages by general laws,” and (2) to “restrict their power of taxation, assessment,” etc., “ so as to prevent the abuse of such power.”

Now, as above shown (Zanesville v. Richards), by judicial construction, article 12 of the constitution, with all its express limitations, applies to the power of taxation by municipal corporations for general revenue, and unless a vain thing was intended, which can not be presumed, the mandate upon the general assembly to restrict their powers of taxation, so as to prevent the abuse of such power, must mean restrictions in addition to those contained in article twelve.

The word “ assessment,” as used in the section, is simply the recognition of a mode of taxation then and previously existing in municipal corporations in this state, and as a word importing power over private property can not be presumed to have been loosely used in the constitution, it follows that the word “ assessment ” must have been used .in a definite and understood sense, and when the mode of taxation which it represents is defined, and its limitations ascertained by judicial construction, the mandate requires the general assembly to imp ose further restrictions on the power of this mode of taxation, if necessary, to prevent the abuse of it.

The word “ assessment,” therefore, simply means a mode of taxation, which was well understood when the word was inserted in the section quoted.

In Hill v. Higdon, supra, in speaking of assessments, Chief Justice Ranney says: “ This power had, for many years, been in constant and active exercise in every part of the state, and was perfectly understood by every member of the convention. The popular as well as legal significar tion of this term had always indicated those special and local impositions upon the property in the immediate vicinity of an improved street, which were necessary to pay for the improvement, and laid with reference to the special benefits which, such property derived, from the expenditure of the money.” He was there discussing the constitutionality of this mode of taxation, and not defining what it is as we are now; hut every word that is said is applicable here. The definition, which embraces the measure of the right, and the limits upon the power of this mode of taxation, above given, and supported by the authorities cited to it, must therefore be construed to be the correct one, and the one in which the word is used in section 6. And such assessments “ can only be constitutional when imposed to pay for local improvements, clearly conferring special benefits on the properties assessed, and to the extent of those benefits.” Hammett v. Philadelphia, supra. As above said, the restrictions which the general assembly is required to impose on this mode of taxation must be restrictions in addition to those that will be implied from the term “ assessment.”

3. The legislative construction fully supports the above views. Section 539 of the municipal code, as amended in 1873 (70 Ohio L. 126), provides that the council “ shall have power to assess the cost and expense of such improvement upon the property benefited thereby, including lots and lands that are contiguous and adjacent, as well as those that abut on said street.” When construed with reference to the subject, the implication from this language is irresistible, that there can be no assessment where there has been no special benefit conferred, and it is to be implied with equal force, that as such benefits are made the basis of the assessment, it must be limited to the value of the special benefits conferred, and can not exceed them. That the benefits named must be special benefits is implied from the fact that the assessment must be confined to property that is contiguous and adjacent to, or abutting on the improvement. It is such property only that can be specially benefited, according to all the authorities.

By section 584, the assessing board is “ to report to council an estimated assessment of such cost on the lots or lands to be charged therewith, in proportion, as nearly as maybe, to the benefits which may result from the improvement to the several lots and parcels of land so assessed.” When this is read in connection with section 539, we have the basis of the assessment, which is the value of the special benefits conferred, and in this section (584) the rule of apportionment by which'the burden is to be equalized among those who have to bear it. The whole amount of the assessment is to be apportioned amongst the several lots specially benefited, in the proportion that the special benefits to each lot bears to the whole special benefits conferred by the improvement.

These two sections provide exactly what this mode of taxation in its nature requires.

And the general assembly has not been unmindful of the mandate to impose additional restrictions to prevent the abuse of the power of assessment. By section 543, which is applicable here, the assessment is so limited that it can not exceed twenty-five per centum of the value of the property assessed at the time and in view of the appropriation.

Thus we find this mode of taxation, as defined by the courts, the word “ assessment,” as used in section 6, and the statute conferring the power of assessment upon the city, all in harmonious accord; and the spirit of article 12, as to basing the assessment on value, and apportioning it so that jt will rest uniformly and equally upon those who must bear it, is recognized as pervading this mode of taxation. To assessments thus made, no constitutional objections can be successfully urged.

Having settled the general principles applicable to this mode of taxation, in view of them, I will now notice some of the objections specially urged against the assessment in this ease.

It is urged that the assessment is not confined within the territorial limits designated by section 539.

In Meissner v. Toledo, supra, the record, as in this case, shows the location of the lots assessed, and the cases, on this point, are not distinguishable, except that in the case before us, the assessment is placed on a more limited territory than in that; and we find no ground that would justify a departure, in this case, from what is decided in that, on this point.

3. It is claimed that the assessment is invalid and void, on the ground that it fails to show that it is based on the value of the special benefits conferred by the opening of the street, or that it is properly apportioned; and that these things are apparent on the face of the proceedings which are made part of the record.

It seems to us that this Objection is well taken. It is essentia] to the validity of the assessment that the proceedings by which it is made must show upon their face that the requirements of the law have been substantially complied with, and that the restrictions imposed by law upon the exercise of the power have been observed in such a way that the owner of the lot assessed has had the benefit of the protection they were intended to give. It is not my purpose to attempt to indicate the manner in which all this should be made to appear on the face of the record.

In this case, the city council resolved: “ That the board of improvements be and they are hereby requested to prepare an estimated assessment, as required by law, of the costs and expenses incurred in the extension of Bond street, and report the same to this council.”

The board is not required to estimate and assess the value of the special benefits conferred, which may or may not be equal to the cost of the improvement, but to prepare an estimated assessment of the costs and expenses incurred, as required by law. This order was certainly calculated to mislead the board.

Afterward, the board of improvements submitted an “ estimated assessment upon the property benefited, to pay the damages and costs incurred in opening and extending Bond street.”

This assessment is made part of the record, and is without caption or conclusion. It locates the lots assessed, and describes them by their number and otherwise, gives their frontage, the rate per front foot of the assessment, and the amount assessed on each lot, and the aggregate amount assessed on all the lots. An equalizing board was appointed and required to equalize the assessment according to lato.

This board made a report to the council, which is made part of the record. It properly takes the same property reported by the assessing board, and arrives at the equalized amount imposed on each lot at a given rate per front foot.

There is nothing in all this to show that the special benefits conferred were valued at all, or, if valued, to shotv that the assessment was apportioned in proportion to the special benefits that each lot received.

The only thing to indicate that benefits were conferred at all, is found in the report of .the assessing board, that the assessment is “ upon property benefited.” But this, of itself, is of no effect. It lacks the essential elements of valuation and apportionment, above spoken of, without which the assessment may be arbitrary and oppressive. Presumption, if permitted in favor of the validity of any part of the proceedings, can not be permitted to' supply the essential elements of a valid assessment that are wanting here.

The assessment, equalization, and confirmation ought all to have been set aside and held for naught; and, for error in not so doing, the judgment of the district court is reversed, and the injunction made perpetual, without prejudice to the right of the city to make a new assessment.

Although unnecessary to the decision of the case, in view of the fact that a new assessment will probably be made, there are other questions presented on the record which we think it proper to notice.

4. The plaintiff introduced as a witness Adolph Guider, one of the equalizing board, and proposed to prove by him that “ the equalizing board did not make the assessment in proportion to the benefits derived from the opening of Bond street alone, but were actuated by other motives, and were controlled by the benefits that might result from the opening of a contemplated street from Bond street to Erie street, for which the city of Cleveland appropriated land in April, 1874, but of which the city had not taken possession.” 'Which evidence was rejected. There was no error in this. If the opening of a new street rendered it practicable to open another desirable and needed street, which could not have been opened before, and which, if opened, would render the property adjacent to the new street more accessible and available for use and for market, and hence more desirable and valuable, the extent to which the opening of the new street contributed to creating the new condition of things, including the prospective opening of a contemplated street, as indicated by the proof offered, would be a proper subject for the consideration of the assessing and equalizing boards, in estimating the benefits conferred by the opening’ of the new street.

It was not the special benefits that might be conferred by the opening of the contemplated street that could be considered, but the fact that the opening of the new street rendered it practicable to open the contemplated street; and if this, in itself, specially benefited the adjacent property, which was a question of fact and not of law, then, to the extent of such benefit, the boards should have been controlled by it in estimating the special benefits conferred by. the opening of the new street.

5. It is claimed that the equalizing board equalized an assessment on the basis of $166,777.50, whereas the assessment that they were required to equalize was only $157,-749.89, by which over $9,000 more than was assessed was equalized.

This is a valid objection to this assessment as confirmed and placed on the duplicate.

Section 586 provides for the appointment of an equalizing board, and section 587 provides, that the board, after taking an oath “ honestly and impartially to discharge their duties, shall hear and determine all objections to the assessment, and equalize the same; which equalized assessment they shall report to the council.” These embrace all their duties, and it is apparent that they have no power to add to or deduct from the assessment to he equalized, except that they may, ex necessitate, as a part of the costs of the proceeding, properly add to the assessment a reasonable compensation to themselves for making the equalization. In adding over $9,000 to the assessment, before equalizing it, the hoard of equalization acted wholly without authority, and their equalization was invalid and void, and, on this ground, the council ought to have set it aside.

If the assessment was insufficient, resort should have been had to an additional pro rata assessment by the council, under section 559.

6. It is claimed, in substance, that this assessment was levied to reimburse the general fund of the city, for moneys taken from that fund to pay the bonds of the city issued in anticipation of the collection of the assessment, and not for the purpose of paying the damages and expenses incurred in opening Bond street.

The assessment was made payable in several installments, as provided in section 577. The bonds were issued, and the faith of the city pledged for their payment, to enable it to pay for the lands appropriated, under section 663, as amended February 1, 1873. 70 Ohio L. 21.

The purpose of the council from the beginning, was that the costs of the appropriation should he paid by assessment, and there is nothing to indicate that it ever elected to pay the cost thereof from the general fund of the city. The bonds were issued in anticipation of the assessment, which the city is now seeking to collect. Owing to delays in making and collecting the assessment, the city, in the meantime, has been compelled to pay some of the bonds, while the assessments are not all collected yet.

Under such circumstances, the city may lawfully collect proper assessments to pay for the land appropriated.

7. It is objected by the plaintiff that equalized assessment is void, on the ground that no notice was given of the time the board of equalization would proceed with the equalizing of the assessment, nor was any notice given of the filing of the same with the clerk or council.

We do not think this objection well taken.

By the provisions of section 585, before adopting the assessment made by the assessing board, the council is required to publish notice for three consecutive weeks, that such assessment has been made, and that the same is on file in the office of the clerk, for the inspection and examination of any person interested therein.

We think that after the notice required has been given, all persons interested have a reasonable opportunity to be heard against the assessment, and that, from this point, the proceeding must be regarded as pending, and that all pex*sons interested are bound to take' xiotice of what is done up to the time the equalized assessment is confirmed.

8. Eor the purpose of applying the per centum limitations of section 543, the court confined the inquiry as to value to the time the city paid for axid took possession of the appropriated property, and rejected testimony offered by the plaintiff" as to the value of the property assessed, at the time the assessment was made, which was some two years subsequent to the time the city took possession of the property. To the rejection of such testimony the plaintiff" excepted.

The court did not err in this respect. There had probably been a shrinkage in the value of the property in question between the periods named, axid, as a consequence, it would have been more favorable to the plaintiff to have had the per centum limitations applied to the value of the property at the latter period named. But sxxppose there had been a great advance in the value of the property between the periods named. How woxxld the case have then stood? It would clearly have been unjust to the plaintiff" to have applied the limitations to the value of the propex’ty at the latter period.

In a street improvement case, the limitations of section 543 are to be applied to the value of the property after the improvement is made. But in an appropriation of land for opening a street, the appropriation is not an improvement, within the meaxiing of the section, and the limitations are to be ascertained by tbe value of tbe benefited property at tbe time and in view of tbe appropriation.

9. A majority of the court think that where the city council determines that the amount of the assessment does not exceed the value of the benefits specially conferred, its judgment iu the premises, in the absence of fraud, is final and conclusive, unless modified by the council before the final confirmation, as provided in section 588 ; but when the municipal authorities, in levying special assessments, do not undertake to determine the amount of the special benefits conferred, either in respect to the amount assessed, or in the apportionment of the burden, the assessment may be enjoined, and in an action for that purpose parol evidence may be introduced to show that the authorities did not act on the proper basis. If this proposition means that the council may determine that the amount of the assessment does not exceed the value of the benefits specially conferred, without an actual valuation of the special benefits, and without notice to those who are to be assessed, I can not concur in it.

Judgment reversed, and the injunction made perpetual.

Okey, J.

I concur in the conclusion reached in this case, and, generally, in what is stated in the opinion of the chief justice. I do not concur, however, in all that is stated in the syllabus. It is stated, in the ninth proposition that, “ where the city council determines that the amount of the assessment does not exceed the value of the benefits specially conferred, its judgment in the premises, in the absence of fraud, is final and conclusive, unless modified by the council before the final confirmation, as provided in section 588.” This was not called for by anything in the record ; and, even under our rule, such proposition does not become law by being placed in a syllabus. If I could concur in the proposition stated, I would have much difficulty in agreeing to the remaining portion of it, which is as follows : “ When the municipal authorities, in levying special assessment, do not undertake to determine the amount of special benefits conferred, either in respect to the amount assessed, or in the apportionment of the burden, the assessment may be enjoined ; and, in an action for that purpose, parol evidence may be introduced to show that the authorities did not act on the proper basis.” No such exception is permitted in any state where the action of council is regarded as final in its character. But, in this state, courts may interfere in matters of that sort where great injustice is done, even though fraud be not shown. As, however, the acts on which this proceeding was founded have all been repealed, andas the present municipal code is in some respects different from the former statutes on the subject, I do not think that time and space should be taken to make a full, separate statement of my views.


author: White, J.

text:
    The State, ex rel. the Attorney-General, v. The Columbus Gas Light and Coke Company.
    1. "Where a corporation, acting under a special charter, is invested with franchises to be exercised to subserve the public interest, the terms upon which the corporation may be required to discharge its duties to the public are subject to legislative supervision and control, unless it clearly appears from the terms of its charter that it was the intention to exempt it from such interference.
    2. Under a special charter, granted prior to the adoption of the present constitution, the defendant was empowered to “ manufacture and sell gas ” for the purpose of lighting the city of Columbus. The grant was exclusive for the term of twenty years. The charter contained no provision as to the price to be charged for gas, nor on thesubject of meters: Held, That the defendant was subject to the provisions of the act of March 9, 1867 (S. & S. 160), restricting the price to be charged for the use of meters.
    Ineormation in quo warranto.

    The information charges the defendants, among other things, with usurping the privilege and franchise of charging each consumer of gas, who consumes five hundred cubic feet or more of gas per month, and compelling him to pay, in addition to the price of said gas, thirty cents, more or less, per month as rent for the meter that measures the gas to the consumer.
    The defendant, in its third plea, justifies the alleged usurpation under its charter. The charter consists of a special act of the general assembly, passed February 21, 1846, entitled “ an act to incorporate the Columbus Gas Light and Coke Company” (44 Ohio L. 144).
    The act contains five sections.
    Section 1 enacts that ten persons therein named, and their associates, be created a body corporate and politic, with perpetual succession, by the name of the Columbus Gas Light and Coke Company, and by that name they and their successors shall he capable, in law, of contracting and being contracted with, suing and being sued, defending and being defended, with power to acquire, hold, and occupy such real and personal estate as may be necessary and proper for the construction, extension, and usefulness of the works of the company, and for the management and good government of the same, and that they may have a common seal.
    Section 2 provides that the corporation shall have power to manufacture and sell gas, to be used for the purpose of lighting the city of Columbus, or the streets thereof, and any buildings, manufactories, public places, or houses therein, and to erect necessary works and apparatus for conducting gas in the streets and avenues of the city.
    Section 3 provides that the capital stock of the company may be forty thousand dollars, to be divided into shares of ten dollars each, to be subscribed for and paid at such time and in such proportions as shall be prescribed by the- bylaws and rules of the company.
    Section 5 empowers the directors to make such by-laws and rules for their own government, and for regulating the concerns of the company, as they shall think necessary and proper, respecting the management and disposition of the stock, property, and estate of the company, the duties of the agents and artificers to be employed, and all other matters pertaining to the concerns of the company; provided the same shall not be inconsistent with the constitution and laws of the United States or of this state. It contains also this provision: “ Said company shall have the exclusive privilege of supplying the city of Columbus and its inhabitants with gas, for the purpose of affording light, for the term of twenty years.”
    The plea also contains the following averments:
    This defendant says that, by virtue of said special act or charter, it was vested, on its organization (as it is advised and avers), with full power as a corporation to so contract and be contracted with, concerning the matters and things pertaining to the manufacture and sale of gas in the city of Columbus, and acquire and enjoy any personal property that was necessary to the usefulness, management, or good government of its business; that it was (as it is advised) by said act authorized to purchase and rent meters to its customers ; that there is no limitation or qualification to said right in said special act or charter; and that the defendant has never assented to nor accepted any limitations to its rights, liberties, and franchises in this behalf; nor did the general assembly reserve any right to alter, amend, or repeal said charter, in said act, nor in any amendment thereto.
    And this defendant avers that the State of Ohio, without such reserved right, or without the consent of this defendant, has no power to impair the said rights and privileges, liberties, or franchises so granted to this defendant by said special act or charter, and that the general law of the state does not apply to it. This defendant says that it is by said grant that this defendant exercises the liberties, privileges, and franchises herein aforesaid, and that the same is a full warrant and authority therefor, and which it is ready to verify.
    To this plea several replications were filed by the state. The only ones that need be noticed are the third, fourth, fifth, and sixth. These replications are, in substance, that on four several occasions since the adoption of the present constitution, the defendant has increased its capital stock until in the aggregate it amounts to two hundred and fifty thousand dollars; and that its stock was thus increased, under the general laws passed on the subject under the present constitution.
    To these replications the defendant demurred. On the question of law raised by the demurrer, the cause is submitted.

      Harrison <¡¡¡ Olds, for the relator :
    The original charter of the Columbus Gl-as Light and Coke Company did not confer upon the company the power to sell gas at whatever price it might choose to exact, and to impose and collect the price of gas sold by it in any manner it might please, free from the right of regulation by the general assembly.
    The charter, it is true, conferred upon the company the right to manufacture and sell gas, but it also provided that the company should have “ the exclusive privilege of supplying the city of Columbus and its inhabitants with gas for the purpose of affording light for the term of twenty years.”
    The corporation has no rights of property, except those derived from the provisions of the charter creating and the statutes regulating it, nor can it exercise any powers over the property it holds, except those -with which the charter and the statutes have clothed it. It holds the property only for the purposes for which it was permitted to acquire it; that is, to effectuate the objects for which the legislature created it. And whether it may lawfully demand payment of whatever price it chooses to exact for gas sold by it, and levy whatever contributions it may please to defray the expenses of purchasing and maintaining meters as a part of its works, must depend upon the language of the charter, and not upon the rules of the common law. Perrine v. Chesapeake and Delaware Canal Co., 9 How. 172, 184.
    The principles of construction by which such a charter . is to be expounded are well settled. Although a special act of incorporation may be called a contract, the rules of construction applied to it are admitted to be the reverse of those applied to other contracts. The charter of this company is not only the grant of certain franchises by the public to a private corporation, and in a matter where the public interest is concerned, but it is the grant of franchises restrictive upon the city and the inhabitants named in the charter, to the extent of prohibiting both the city and its inhabitants, for the term of twenty years, from obtaining, from any other person than this company, a supply of an article of consumption necessary for their convenience, comfort, and safety. This company’s charter, therefore, presents the clearest and strongest possible instance for the firm and rigid application of the rule of strict construction against the company and in favor of the public.
    In determining whether or not the corporation, under such a charter, actually has a franchise which it claims to have, any ambiguity in the charter must operate against the corporation and in favor of the public ; the. grant claimed in such a case must be clearly expressed in the very letter of the statute, and not to be discovered by astute construction and inference ; and the words of the statute are to be taken most strongly against the corporation. Charles River Bridge v. Warren Bridge, 7 Pick. 344; Ib., 11 Peters, 420, and cases cited; Proprietors of the Strowbridge Canal v. Wheeler, 2 Barn. & Adol. 793; Perrine v. Chesapeake and Delaware. Canal Co., 9 How. 172, 184; Commissioners v. Gas Co., 12 Penn. St. 318; Scales v. Pickering, 4 Bing. 448; The Ohio Ins. and Trust Co. v. Debolt, 16 How. 416; The Jefferson Branch Bank v. Skelly, 1 Black, 436 ; Richmond R. R. Co. v. Louisa R. R. Co., 13 How. 71.
    This company, under its original charter, had, as one of its franchises, the right to demand and receive some compensation for gas manufactured and sold by it; but the state did not, by granting such charter, make an agreement with the company that the state would never assume to regulate the use of such franchise, and limit the price which the company might charge for gas sold, and prescribe how the same might be collected. Blake et al. v. The W. & St. P. R. R. Co., 19 Minnesota, 418.

      When the nature and object of this corporation are considered, it can not be maintained that this is a mere private corporation for the manufacture and sale of a commercial commodity. It is practically, a quasi public corporation.. Shepard v. Gas Co., 6 Wis. 539; Gas Co. v. The State, 18 Ohio St. 237; 7 Pick. 344; Powell v. Sammons, 31 Ala. (U. S.), 552.

      Henry G. Noble, for defendant:
    “ The general assembly shall have no power to pass laws impairing the obligation of contracts.” Sec. 28, art. 2 of Ohio Constitution.
    A charter of a corporation is a contract. Knoup v. Piqua Bank, 1 Ohio St. 603 ; Debolt v. The Life Ins. and Trust Co., 1 Ohio St. 563 ; Toledo Bank v. Bond, 1 Ohio St. 622 ; Sandusky City Bank v. Wilbur, 7 Ohio St. 481; Skelly v. Jefferson Br. Bank, 9 Ohio St. 606 ; Ohio Life Ins. and Trust Co. v. Debolt, 16 How. 432; Mechanics’ and Traders’ Bank v. Debolt, 18 How. 380; Dodge v. Woolsey, 18 How. 331; Jefferson Br. Bank v. Shelly, 1 Black, 436 ; 19 Ohio St. 369; 21 Ohio St. 451.
    It will be seen that sections 1 and 2, of article 12, of the-constitution, do not take from the general assembly either the power to form new corporations or to confer corporate-powers on those already formed. Those corporations existing at the time the constitution was adopted are within the letter and spirit of the first section. The history of the constitution, as above referred to, establishes the fact that, 'the existing corporations of the state were neither to be destroyed nor paralyzed. They were to be let alone in whatever franchises they had. Whatever corporate powers were-thereafter to be conferred were not to be conferred by “ special acts,” but by general laws, and thus the dealing with them was left, as before, to the legislative wisdom and policy alone, subject to this single change.
    We admit that the charter of a corporation conferring-corporate franchises is to be strictly construed. But this-■does not mean that the clear rights of a corporation are to ■be construed away, and the court, by construction, do that which the legislature can not do by legislative act, viz., impair the .obligation of a contract. The Planters’ Bank v. Sharp, 6 How. 301, 327.
    The rule as explained in 9 Howard, 192, is just, and. we ■■are perfectly willing to have the charter of this company measured by it, for we are sure that this court will not find :any ambiguity in this charter, when fairly interpreted, having in view the object for which the corporation was created. The court will see, by a reference to the charter, that this company has the right to manufacture and sell gas. The very primary meaning of “ sell ” is “ to transfer property or the exclusive right of possession to another for an ■equivalent in money.” — "Webster. What would this light amount to if the right to sell here should mean to transfer the gas to the consumer at a price to be fixed by a third party (the general assembly), and that third party not governed by any rules or limitations in fixing the price, except its own will ? But this is not the only franchise that relates to this subject. This company is also granted the franchise •“ to contract and be contracted with.” If, therefore, gas is ■a commodity concerning which parties consuming the same ■are free to contract or not as to the price, then this company has the right to contract with such consumers; not only to ■supply them with gas, but for the price or equivalent at which it is to be supplied; for it is the very object of the •creation of this corporation to manufacture and sell gas.
    That the gas so manufactured is such a commodity the following cases declare: McCune v. Norwich Gas Co., 30 Conn. 521; 3 Dutcher (N. J.), 245.
    In addition to the franchises just discussed, particularly the franchise “to contract and be contracted with,” the •charter further confers power on this corporation “ to acquire, hold, and occupy such real and personal estate as may :bc necessary and proper for the construction, extension, and tisefulness of the works of the company, and for the management and good government of the same.”

      Assuming, therefore, that meter rent is a recognized right ■of all gas companies, in addition to the price of gas to be charged, and knowing that this company has exercised the right to charge and receive from each consumer, in addition to said price for gas, a sum agreed upon as rent for the meter that measures the gas to the consumer for more than ■twenty-one years before the issuing of the writ of quo warranto herein, it remains to inquire whether this right can he taken away under this law, as an exercise of police powers.
    "We admit the right in the legislature to provide for the •control and regulation not only of corporations, but of every individual in the state under the police power, but as this is a vague and dangerous power, it is the more necessary that courts should carefully scrutinize all acts which profess to be an exercise of police power, to see that, under this name, they do not improperly interfere with the liberty or property of the citizen; for the very object of this power, .as well as of all government, is, or should be, the protection of life, liberty, and property. , It, therefore, should ever he the pleasure, as it is the duty, of the courts to see that no man, or set of men, be they incorporated or unincorpor.ated, be deprived of his or their “property without due process of law.” Cooley on Const. Lim. 577; Shaver v. Starrett, 4 Ohio St. 498; Reeves v. Treas. Wood Co., 8 Ohio St. 333; 18 Ohio St. 237.
   White, J.

The question now before us for determination, in this case, is, whether the defendant, in regard to its right to charge rent for gas meters, is subject to the act entitled “ an act for the inspection of gas meters, the protection of gas consumers, and the protection and regulation •of gas companies,” as amended March 9; 1867. S. & S. 160.

Section 15 of the act provides, “ This act shall apply to .•all companies who manufacture gas for sale.” And the .amendatory act contains this provision: “ No gas company :shall have the right to charge rent for meters, when five hundred cubic feet per month have been consumed.”

■ The defendant claims that it is not subject to the operation of this statute, and asserts the right, under its charter* to exact rent for meters irrespective of the statute.

This right is denied by the state on two grounds. These-grounds, stated in the inverse order in which they are argued, are, in substance:

1st. That the right of defendant to charge for the use of meters, as well as for gas furnished, is subject to legislative-control.

2d. That if such right of control did not exist under the-original charter, yet the defendant, by increasing its capital stock, under the authority of the present constitution, became subject to such control.

If the first of these positions is well taken, the determination of the correctness of the second is not necessary to the decision of the case before us.

. As to the first ground: Whether this ground is well taken or not, depends upon the terms of the charter. The-charter provides that the corporation “ shall have power to-manufacture and sell gas, to be used for the purpose of lighting the city of Columbus, or the streets thereof, and. any buildings, manufactories, public places, or houses therein, and to.erect necessary works and apparatus for-conducting gas in the streets and avenues of the city.” The directors of the corporation are authorized to make-such by-laws and rules for their own government, and for-regulating all matters pertaining to the concerns of the-company, as they shall deem necessary and proper; provided such rules and regulations are not inconsistent with the constitution and laws of the United States or of this state. The charter likewise provides that the “ company shall have the exclusive privilege of supplying the city of Columbus and its inhabitants with gas, for the purpose of affording light, for the term of twenty years.”

■The. corporators and their associates are authorized to employ their means, to the extent and in the manner provided by the charter, to accomplish the public purpose of supplying the city of Columbus and its inhabitants with ;gas. In the accomplishment of this purpose the public have an interest. The main object of the charter was not the. private emolument of the corporators and stockholders, but the promotion of the public convenience and welfare. 'This object, it is true, is to be accomplished upon the terms prescribed by the charter, subject to the right of such supervision and control as may have been withheld in the grant, in favor of the public.

In the present ease, it is claimed on the part of the defendant, that no right is reserved, on behalf of the public, ■to control the price of gas, or the amount to be charged for ■the use of meters; but that this power, under the charter, •rests exclusively in the discretion of the defendant.

Before this right of exemption from legislative control •can be asserted, the right must appear to have been clearly granted by the charter. “ The rights of the public are never presumed to be surrendered to a corporation, unless the intention to surrender clearly appears in the law.” Perrine v. Chesapeake & Delaware Canal Co., 9 How. 172, 184, 192.

The charter, in the present instance, grants to the defendant the exclusive right of supplying the city and its inhabitants with gas, for the term of twenty years. It ■operates, therefore, not only to confer a public franchise on the defendant, but also to restrict the public from supplying its necessities from any other source. This creates a monopoly in the defendant for the time the right is made exclusive. It is unreasonable, therefore, to infer that it was the intention -of the legislature to exempt the defendant from all public -control, in respect to the terms upon which it should be re■quired to discharge its duties to the public, unless such intention is found clearly expressed in the charter. The •charter expresses no such intention. On the contrary, the plain implications are against the existence of any such ex-emption. The directors are authorized, by the charter, to make by-laws and rules for regulating all matters pertaining to the company, but such regulations are required to be consistent with the laws of the state. This provision is not limited to laws then in force; but extends also to such laws as may be passed in the future. The charter does not prescribe the terms upon which gas is to be furnished to the public. The whole matter is left to be determined by such rules and regulations, not inconsistent with the laws of the state, as the directors may prescribe.

The business in which the defendant is engaged largely concerns the public. As already remarked, the main purpose of its creation was to subserve the public interest.

In Munn v. Illinois, 94 U. S. 118, it was laid down, in respect to natural persons, that “ where the owner of property devotes it to a use in which the public have an interest, he in effect grants to the public an interest in such use,, and must, to the extent of that interest, submit to be controlled by the public, for the common good, as long as he-maintains the use.”

In that case the principle was applied to warehousemen,, who were engaged in receiving and storing grain, and it was held that their rates of charges were subject to legislative regulation.

The principle applies with greater force to corporations-when they are invested with franchises to be exercised to» subserve the public interest. Deriving their powers by grant directly from the public, they are clearly subject to-public control, in respect to the terms upon which their franchises are to be exercised, unless they are protected by their charters from such interference. Blake v. Winona and St. Peter Railroad Co., 19 Minn. 419; s. c., 94 U. S. 180 ; Chicago, Burlington and Quincy Railroad Co. v. Iowa, Id. 155 ; Peik v. Chicago and Northwestern Railway Co., Id. 165.

' As we find nothing in the terms of the charter of the defendant which protects it from legislative control in respect to the matter in question, the right which it sets up to-charge for the use of meters, in contravention of the statute, is without warrant in law; and the plea setting up such, right is adjudged insufficient.

Judgment accordingly.