
    The State of Ohio, ex rel. the Attorney-General, v. Simon S. Davis et al.
    1. The act passed March 11, 1861, entitled “ an act regulating the Commercial Hospital of Cincinnati,” does not constitute the board of trustees, therein provided for, a corporation, or confer corporate power on the city of Cincinnati; nor is said act repealed by the municipal code.
    2. By said act the authority of governing the hospital is vested in the board of trustees; and the board of hospital commissioners provided for in the municipal code has no authority over it.
    Quo warranto.
    Simon S. Davis and the six other defendants are charged by the attorney-general, in the information, with having usurped, and with still usurping, the following liberties, privileges, and franchises : “ That of holding the offices of members of the board of hospital commissioners of the city of Cincinnati, and of managing and controlling the hospital of the said the city of Cincinnati.” And the defendants are required to show by what warrant they claim to have, use, and enjoy said liberties, privileges, and franchises.
    The defendants in their plea set up, in substance, that the Cincinnati Hospital is a public infirmary in the city of Cincinnati, established by an act of the general assembly of the State of Ohio, entitled an act establishing a commercial hospital and lunatic asylum for the State of Ohio, passed January 22, 1821, and the several acts supplementary thereto and amendatory thereof; and that the general assembly of said .state, on March 11, 1861, passed an act regulating the said hospital, whereby it was enacted that the government and control of said hospital shall be vested in a board of seven trustees to be created in the mode therein prescribed; that in accordance with the provisions of said act they have been appointed and are the duly constituted board of trustees, and as such have the exclusive management of said hospital, and the authority to make rules for the conduct and government of the same.
    The defendants also aver that they “ have claimed, and do yet claim to have, use, and enjoy all the liberties and franchises in the information mentioned by virtue of the premises;” and pray judgment that the aforesaid liberties, privileges, and franchises, claimed by them, may for the future be allowed.
    To this plea a demurrer is interposed on the, ground that it is not a sufficient answer in law to the matters in the information set forth.
    
      George E. Pugh and J. Bryant Walker, for the relator:
    The act of March 11, 1861, regulating the Commercial Hospital of Cincinnati, is unconstitutional. Constitution, art. 13, secs. 1, 2, 6; State, ex rel. the Attorney-General, v. The City of Cincinnati, 20 Ohio St. 18, 36; Atkinson v. Marietta and Cincinnati R. R. Co., 15 Ohio St. 21; Smith v. Hurd, 12 Met. 371, 385; Fay v. Noble, 7 Cush. 89; Dayton and Cincinnati R. R. Co. v. Hatch, 1 Disney, 84, 94; Goodin v. Evans, 18 Ohio St. 150, 167.
    What does it do ? It confers upon the city the power of managing this institution through an entirely different agency than that through which it controlled it before. Previously, as shown in the introductory history, it was governed by the directors of the city infirmary, officers elected by the people, as successors to the township trustees. Now it is to be governed by these seven trustees, deriving their power from an appointment by the courts or the governor, except the two ex-officio members. Surely this is a most important change.
    The constitution of the governing body is, in these municipal corporations, one of the very most important things-about it. It is its essential corporate power as soon as the corporators become too numerous to meet in town meeting and transact their business themselves. Surely an act which confers upon that corporation the power of managing its-affairs through an entirely different body, appointed in an entirely different way, and holding for. different terms, confers an entirely different and new power. Would am act, vesting in the mayor of Cincinnati all the powers now vested in the common council, not “ confer upon the corporation of the city of Cincinnati additional corporate-powers — powers which, as a municipal corporation, she did not previously possess ?” It seems to us plain that it would..
    It has even been held that, in the case of private corporations, the governing body are the corporation, and that the stockholders can do nothing but elect them.
    This is especially true of municipal corporations as organized in this country, except the towns of Massachusetts, as the electors can not do any act of any sort except elect, unless when called upon by the charter to vote on certain designated questions submitted to them.
    If this view be correct, this body is the corporation. It at least shows strongly how essential a corporate power the-constitution of and mode of continuing the governing body is.
    But other powers are conferred by this act: this new governing body, or new corporation, can do things which the old one, consisting of the directors of the city infirmary, could not; one of which is one of the very things complained of in this ease.
    1. They can appoint and remove at pleasure the medical-attendants resident at the hospital.
    2. They can admit medical students, not pupils of the-Medical College of Ohio, to witness the treatment at the hospital.
    3. They can fix the regulations on which pupils of the Medical College of Ohio are to be introduced into the hospital.
    4. They can fix the fees to be charged to the students-.admitted.
    5. They are to receive the fees paid by students for ad. mission to the hospital, which they did not before.
    6. They can, in certain cases, discharge the faculty of the Medical College of Ohio from attendance there.
    7. They can, even while that faculty remain in attendance, introduce other medical attendants into the hospital.
    8. They can determine, as we understand the argument -of the plea, who are to be admitted to the hospital by rules approved by the city council.
    9. They are relieved from visitation by the Medical Convention of Ohio.
    10. They are relieved from visitation by the judges of the Court of Common Pleas (who we understand to be the successors of the associate judges) of Hamilton county, and from the bond required by the act.
    The corporation of the city of Cincinnati derive all the powers enumerated in the first seven paragraphs, and the -changes of supervision in the last two, wholly from the special act, and they are essential parts of its scheme, so that the whole falls when they are taken away.
    We think, therefore, clearly that this act of 1861 is a special act conferring additional powers upon the corporation of the city of Cincinnati, and is therefore void, and judgment of ouster should be rendered against the defendant. Atchison v. Bartholow, 4 Kan. 124; Wyandotte v. Wood, 5 Ib. 603; Ex parte Pritz, 9 Iowa, 30; Davis v. Woolnough, Ib. 107; Baker v. St. Milwaukee, 14 Ib. 214; State v. Squires, 26 Ib. 343.
    II. We claim that the municipal code of May 7, 1869 (66 L. 145, 199), has impliedly repealed this act, and subistituted the provisions of chapter 21, sections 283-297, for them, though the act is not specially repealed in the repealing clause.
    If this be not so, the application of the building and repairing sections of that chapter to this hospital would seem difficult; though the intention of the act seems to have .been to render these institutions uniform, when possible— and this is wholly within the power of the legislature.
    If this position be correct, then also these trustees must be ousted.
    
      Matthews, Ramsey & Matthews, for the defendants:
    I. It is deemed material to the defense to refer with particularity to some sections of statutes, not set out by counsel for the relator in the introductory statement of their printed brief.
    The original section 77 of the act of May 3, 1852, “to provide for the organization of cities,” etc. (3 Curwen, 1858), conferred power upon the city council “to erect and establish, to maintain and regulate an infirmary for the accommodation of the poor of such city, within the county in which it may be situate, and for such purpose may purchase or hold any real estate that may be deemed necessary. The management and government of any such infirmary, and the granting of outdoor relief to the poor,, under such rules and regulations as the council may prescribe, shall be vested in a board of three directors, to be-elected by the qualified voters of the city,” etc.
    By the first section of the act of April 29, 1854 (2 S. & C. 1518), this original seventy-seventh section was amended so as to permit the infirmary to be erected and established “ either within the city or within the county in which such city may be situated.”
    The city of Cincinnati, by special acts passed prior to the' adoption of the present constitution (March 19, 1849, 47 Ohio L. 357), and an amendment thereto, March 23, 1850' (Disney’s Laws and Ord. 543), had been authorized to erect and establish a poor-house “ for the accommodation of the-poor of said city,” upon such tract of land which it was authorized to purchase, as might be judged necessary, within the county of Hamilton.
    The ninth section of the act of March 19, 1849, provided that “ when any person shall have been received into said poor-house as a pauper, on account of any infirmity or disease, the board of directors may, when in their opinion such person is so far restored to health and bodily strength as to support himself or herself, direct the superintendent, of said poor-house to discharge such person therefrom.”
    Under these acts, a poor-house was erected, and has ever since been maintained, upon a farm purchased for that purpose, outside the corporate limits of the city.
    By the act of March 11, 1853, amendatory of the municipal corporations act of 1852 (2 S. & C. 1534), it is provided, in section 27, “that in any city the corporate limits whereof comprise the whole territory of any established township, and wherein a .city infirmary has been established, the offices of township trustees and township clerk shall be abolished and cease from and after the 20th of March, 1853; and it shall be the duty of the directors of the city infirmary of such city thereafter to perform, under the control of the city council of such city, all the functions which such township trustees were authorized to perform up to said date; and the said directors of the city infirmary are hereby vested with all the powers of such township trustees: provided, that said powers, as far as they relate to the levying of taxes and the holding of elections, are hereby exclusively transferred to such city council.”
    Section 28 of the same act transfers all property and rights in property, previously vested in the township trustees, to such city, with all rights of action in favor of or against any such township.
    Section 29 enacts “ that the city council of such city may, by ordinance, prescribe the duties and fix the compensation of the said directors of the city infirmary in the exercise of powers hereby upon them conferred: provided, that the duties so prescribed do not conflict with any previous act relating to the government and management of the Commercial Hospital and Lunatic Asylum of Ohio.”
    Section 5 of the act of 1861 was superseded by an amendment passed March 1, 1870. 67 Ohio L. 120, which see.
    II. The usurpation alleged in this case against the defendants, of illegally assuming to act as trustees of the Cincinnati Hospital, is founded upon the proposition that the act of 1861, under which they claim to be authorized, is unconstitutional..
    This proposition is based, by the counsel for the relator, in their printed argument, entirely upon the allegation that the act of 1861 is a special act, conferring corporate powers upon the city of Cincinnati.
    We admit the act to be special. We deny that it confers corporate power upon the city of Cincinnati.
    That act of 1861, which is the one complained of, does not confer upon the city any power of management, or any control whatever over the institution, through the trustees or otherwise. Previously, under the act of March 14, 1853, the city council had power to prescribe, by ordinance, the duties of directors of the city infirmary, the successors of the township trustees in the government of the hospital; but the act of 1861 gives no such corresponding power in reference to the trustees. It rather takes away than confers corporate power. The amendatory act of February 29, 1864, provides that the rules and regulations adopted by the trustees for the government of the institution shall be submitted to the city council for their approval, and when so approved shall have full force in law, as other ordinances of the city. But this act of 1864 is not in question in this case. Even if it were, it could hardly be claimed that any corporate power was thereby added to the city of Cincinnati.
    This appears more plainly, from the consideration that the directors of the city infirmary, while in control of this hospital, were not so, as a part of the municipal govern-anent of the city, but as trustees, under the act of 1821 and the acts supplementary thereto. And the trustees of the hospital, under the act of 1861, do not constitute a part of the municipal government of the city. They succeed to the same trust, which from the beginning has been kept separate, in all the legislation on the subject, from the ordinary jurisdiction of the municipal government of the city.
    The history of the Commercial Hospital and Lunatic Asylum of Ohio, from the time of its creation by the act of 1821, shows that it never was, and was never intended to be, a municipal institution of the city. It was founded by the state, which originally endowed it. It was a public -charity, much larger in its scope than the local necessities of either the city or the township. The township trustees were, ex officio, made trustees of the fund and of the institution, and were charged, as agents of the state, with the duty of maintaining it by public taxation. By the act of 1853, the duty of maintenance, by a general law, was imposed upon the city of Cincinnati, and the function of trustees of the fund and institution transferred from the township trustees, whose office was abolished, to the directors of the city infirmary; but the trusts themselves remained unaltered. It was open to the state, as founder of the charity, at any time to change the trustees and the trusts. This was done by the act of 1861. It created a mode for the appointment and election of a new board of trustees, and defined in new terms the trusts they were required to administer. In all this, the organization of the municipal government of the city of Cincinnati, and its corporate powers, as previously declared by general laws, remained untouched. On the supposition that the right of approving the rules of the trustees, given to the city council, is equivalent to the power given by the act of 1853' to prescribe the duties of the directors of the city infirmary in respect to this institution, still no change has been made -in the corporate powers of'the city; and no change has been made in its municipal organization by a transfer of the trusts to a new body of trustees, because neither the old one — the directors of the city infirmary — nor the new-one, quoad hoe, were officers or agents of the city, nor a part of its municipal government.
    The counsel for the relators specify other powers conferred by the act of 1861, as corroborating their argument. Of these they enumerate nine. But not one of these is, in itself, a corporate power — that is, one involving, either expressly or by implication, the existence of a corporation.. And they are not conferred upon a corporate body. They are not to be exercised by the city of Cincinnati as a municipal organization, or by any of its agents. They do not add one iota to the corporate power of the city. They are-conferred upon and to be exercised by the board of trustees-of the hospital; and unless they are constituted a corporate body, there is no ground of objection to the act on account of its authorizing the exercise of these powers. It is not claimed that the trustees are made a body corporate-If it were, the claim would be without any foundation. There is no language in the act to justify such an inference. Not one of the essential elements of corporate existence or action is expressly created; or any intent to do so, to be-implied. They do not claim any such franchise. And if they did, the present information would not reach it, for it does not charge- such a usurpation. And if it did, and was admitted, the judgment of ouster would extend to a. denial of that right to exercise their powers, as a corporation; and would leave them as a board of individual-, trustees to execute all their functions, to exercise all their powers, to discharge all their duties, as trustees, unaffected by the decision of the question of their corporate character.
    It is also claimed that the act of 1861 is repealed by the-municipal code of May 7, 1869. 66 Ohio L. 145, 199.
    The general assembly answered this objection by the passage of the amendatory act of April 6, 1870. 67 Ohio L. 33.
   White, C. J.

The main question in this case is, whether the government of the Cincinnati Hospital is vested in a board of hospital commissioners, as provided for in chapter 21 of the municipal code (66 Ohio L. 197), or in a board of trustees under the act of March 11, 1861, entitled “ an act regulating the Commercial Hospital of Cincinnati.” 58 Ohio L. 151.

The board of hospital commissioners is constituted of the mayor of the municipality and of four trustees appointed by him with the consent of the council. Th® board of trustees under the act of March 11, 1861, referred to, consists of the mayor of the city of Cincinnati, the director of the city infirmary eldest in commission, and five trustees, one of whom is to be appointed by the governor, two by the judges of the Superior Court of Cincinnati, and two by.the judges of the Court of Common Pleas of Hamilton county.

The defendants claim to derive their authority to govern and manage the hospital in question under the act of 1861, and no question is made as to their being the duly constituted board of trustees, if the act is valid and still in force.

But it is contended in support of the demurrer, first, that the act of 1861 is invalid, because in conflict with section 1, article 13, of the constitution; and, secondly, that if the act was valid when passed, it has been repealed.

The ground of the first objection is, that it is a special act conferring corporate power; and, as we understand the argument, is claimed not only to confer additional corporate power on the city of Cincinnati, but also to constitute the board of trustees a corporation.

We can not assent to this view. We discover nothing in the provisions of the act either constituting the trustees a corporate body or conferring power on a corporation already existing. The persons designated as trustees by the act constitute a board of officers to manage .an institution which the legislature, has authorized to be established and maintained for public purposes.

"We deem it unnecessary to trace the history of the legislation under which the hospital was originally established and ¿has since been enlarged and maintained. Nor is it material whether the state contributed funds toward its erection, or whether it was built and is supported wholly from local taxation. There is no necessary connection between the instrumentalities which the legislature may put in operation to raise, by taxation, the necessary funds to found and support an institution for public purposes, and those which it may see proper to employ as its governing body. It seems to be supposed in the argument for the relator, that because the title to the property is vested in the city of Cincinnati, and the hospital has been built and is maintained under the corporate authority of the city, it therefore follows that the governing body must act under like corporate- authority. But such result by no means follows. It is left to the wisdom of the legislature to determine and prescribe through what officers or agencies the hospital is to be governed, subject, of course, to the constitutional inhibition, that if corporate power is employed for the purpose, it can not be done by special act.

No question can be made as to the hospital being a proper subject for local or municipal taxation; but whether any of the acts, conferring power upon the city in respect to it, are subject to be impugned as special acts, we are not called on in the present ease to decide. It is sufficient for this case, to say that the act of 1861 is not of that character.

The second objection is that the act of 1861 was repealed by section 297 of the municipal code of May 7, 1869. 66 Ohio L. 145, 199.

It is not claimed that there is an express repeal; but such is supposed to be the effect of the section by implication. "We do not think so. The leading design of the code, as shown by the first section, is to provide for the government of municipal bodies. And, in accordance with this design, chapter 21, of which section 297 forms part, is designed to apply to hospitals that are governed by municipa! authority under the general law, and is not intended to affect the authority of the 'trustees under the special act now in question. Under the rules of construction applicable in determining questions of repeals by implication, we think the two acts may well stand together. That the legislature did not, in fact, intend to affect the act of 1861, is apparent from the section as amended April 6, 1870. 67 Ohio L. 83.

In disposing of the objection upon this ground, it may be' remarked, we do not wish to be understood as conceding that section 16, article 2, of the constitution, is applicable to-repeals by implication. That question we are not called upon here to consider.

Our conclusion, therefore, is, that to so much of the plea, as sets up a claim in the defendants to hold the offices of members of the board of hospital commissioners, the demurrer must be sustained; and as to the rest of the plea, setting up a right in the defendants to govern the hospital as the board of trustees under the act of March 11, 1861,. the demurrer must be overruled.

Judgment will be entered in accordance with this-holding.  