
    (Seventh Circuit—Geauga Co., O., Circuit Court
    Feb. Term, 1894.)
    Before Judges Laubie, Frazier and Woodbury, JJ.
    A. C. Norton v. The Trustees of Montville Township, Geauga Co., O.
    1. The provision of sec. 1464, title XI, chapter 2, Revised Statutes, which prohibits township trustees from establishing a cemetery within two hundred yards of a dwelling-house, applies to the location of an addition to a cemetery under section 1472 of said chapter; and such location may be enjoined by the owner of such house.
    2. The provision of sec. 1465 of such chapter, requiring the question of “ cemetery or no cemetery ” to be submitted to a vote of the electors of the township, has no application to the acquisition of additional cemetery grounds under said section 1472.
    3. The act of February 23, 1893, (Local Laws, p. 183) which provides that “ Township trustees of any township in the state, which had at the last federal census a population of not less than 690, or may have at any future census a population of not more than 695, are authorized to occcupy and use for cemetery purposes any land that has been bought by said township trustees for cemetery purposes, any act that has heretofore been enacted notwithstanding,” being designed specially to apply to Montville township, is local in its nature, and therefore not in conflict with sec. 26, art. II, of the constitution.
    4. The provision of said see. 1464, Rev. Stat., confers upon the owner of a dwelling-house a vested right of property, in the nature of an appurtenance to such dwelling-house, against the establishment of a cemetery nearer such house than two hundred yards, without his consent ; and where such owner commenced an action to restrain such trustees from violating such right, before the passage of such act of February 23, 1893, no subsequent repeal of such provision of see. 1464 could affect such right or such action.
    5. But such act of February 23, 1893, does not, either in express words or by necessary implication, confer upon such trustees the right to use lands for cemetery purposes which lie within two hundred yards of a dwelling-house.
    6. In any event, while the general assembly might subsequently authorize the establishment of a cemetery within such prohibited distance of a dwelling-house, by general or special act, the establishment of such cemetery would tend to depreciate the value of such dwelling house, and would be an infraction of the owner’s right of property ; and such act would be in violation of sec. 19, art. I, of the constititution, and void, unless it provided a means of first awarding compensation in money to such owner; and because the act in question does not provide such means, it is void as against such owner.
    Appear from the Court of Common Pleas of Geauga County.
   Laubie, J.

This case came into this court on appeal, and was brought by the plaintiff to restrain the defendants from laying out and establishing an addition to the present township cemetery within two hundred yards of the plaintiff’s dwelling-house, on laud bought by the defendants for that purpose, and which, it is conceded, the defendants intend to and will do, unless restrained by order of the court.

The contemplated addition abuts on the west line of the county road, and lies between the plaintiff’s premises and the north line of the cemetery ; and the whole addition is within two hundred yards of plaintiff’s dwelling-house.

Sections 1464 and 1472, of the Revised Statutes, prohibit township trustees from appropriating lands within two hundred yards of a dwelling-house for a cemetery, or for any ‘addition thereto, and this inhibition applies- as well to a purchase, as to an appropriation, of such lands for such purpóses; and the owner of a dwelling-house may enjoin such trustees from locating a cemetery, or an addition thereto, within such poohibited distance. Henry v. Trustees, 48 Ohio St. 671.

It is evident, therefore, that the plaintiff is entitled to the injunction asked, unless the defendants can show some superior right, or other valid defense — both of which they claim to have, first, by virtue of an act of the general assembly, passed February 23, 1893; and, secondly, by way of estoppel.

As to to the latter — the estoppel — -the evidence does not sustain the claim, and we dismiss it without further comment.

The act of February, 23, 1893, upon which the first and principal claim of the defendants is based, was published by the secretary of state as a local law (Local Laws, 1893, p. 183), with the word "Montville ” (the name of the township) in brackets, to indicate its application, and the body of the act is as follows:

“Township trustees of any township in the state, which had at the last federal census a population of not less than 690, or may have at any future census a population of not more than 695, are authorized to occupy and use for cemetery purposes, any land that has been bought by said township trustees for cemetery purposes, any act that has heretofore been enacted, notwithstanding.”

The land in question was bought by the defendants before the passage of this act, and by reason thereof, the defendants claim they are authorized to use such land for the purposes aforesaid, and that the plaintiff has no standing in court, and is not entitled to the injunction asked for.

It is contended for the plaintiff that the purchase of this land was illegal, because the question was not submitted to a vote of the electors of the township under sec. 1465, Rev. Stat., and that the act of February 23, 1893, applies only to a case of a legal purchase.

We are of the opinion that the provision of section 1465-, requiring the question of “cemetery or no cemetery,” to be submitted to a vote of the electors of the township, has no application to the acquisition of lands for the extension of the area of a cemetery already established according to the requirements of such section.

Is this act of. February 23, 1893, in contravention of section 26, of Art II, of the constitution of the state, which provides that “ All laws of a general nature shall have a uniform operation throughout the state ?” It is evident that this act could not have such operation. It was clearly designed to apply to townships whose trustees had bought land for cemetery purposes which they could not legally use for such purposes, as otherwise the act was superfluous and useless; and therefore it could not apply to all townships of the enumerated population, but only to such of those of the enumerated population whose trustees had bought such lands, but which they could not use for such purposes. The classification, therefore, is as illegal as that passed upon in Costello v. Wyoming, 49 Ohio St. 202. However, Ave are disposed to think that, although relating to a general subject, the act is local in its nature, as much so at least as an act for the creation of a school district within the limits of a township, by special act, which was held to be in its nature local. State ex rel. Att’y Gen. v. Shearer et al., 46 Ohio St. 275; and that it is not in conflict Avith the provision of the constitution referred to.

But however this may be, the rights of the plaintiff had fully vested under section 1464, and he had commenced his action before the passage of the act in question ; and section 79, Revised Statutes, provides: “Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal. * * * Nor shall any repeal or amendment affect causes of such actions, prosecutions or proceedings existing at the time of such amendment or repeal, unless otherwise expressly provided for in the amending or repealing act.”

Now, if the act it question, of February 23, 1893, is to have any effect whatever as against the plaintiff, it must be by way of repeal of section 1464, Revised Statutes, in that to have effect against him, it must be construed to authorize the trustees to use land, for cemetery purposes within two hundred yards from his dwelling house. Against that, his property, himself and his family were protected by the express provision of said section 1464, and that provision vested in him an important and valuable- right.

In Henry v. Trustees, supra, in passing, upon this provision of such section, it is said, p. 674 : The design of the clause in: question is to guard the comfort, the health and the lives of the people. P.er se a cemetery is not a nuisance, but this act carries the implication that in the judgment of its framers, the locating of a cemetery nearer than two hundred yards from a dwelling house is a thing to be prohibited. The tendency to injure the value of property and to impair the health of the inmates, if placed too near, is a matter of common knowledge.”

A right secured to the citizen by statute is as sacred and invulnerable from attack as any other; and such right is not- affected by the repeal of such statute, as is provided in said section 79. The State ex rel. v. Purcell, 31 Ohio St. 352, 358.

Indeed, such right would be protected by the special provision of the constitution, section 19, article I, which declares that private property shall ever be held inviolate,.

It is true, the legislature may authorize its appropriation to a public use, but at the same time a means, .of compensating the owner in money, must be provided ; and such means are not provided in the act in question.- .- A. destruction, in whole or in part, of the.-value of the.plaintiffs property,: is as much an appropriation of his property, as the taking of the property itself would be.

But it is more than doubtful, whether the legislature understood that the act in question was designed to'authorize the trustees to use land for cemetery purposes within two hundred yards of the plaintiff’s or any citizen’s dwelling house, without his consent, and to annul to that extent sec. 1464, Revised Statutes. Neither in express terms, nor by necessary implication, does that act confer such right upon such trustees. Was the legislature informed that the trustees had exceeded their authority, and had bought land for cemetery purposes, in violation of the inhibition of such section? The act itself, on its face, does not convey such information. It seems to relate to land properly and legally acquired by the trustees, but which they could not use for cemetery purposes, by reason of some supposed impediment, which is not named. In the absence of words expressing or necessarily implying such intent, the inference should not be drawn that the legislature intended to legalize a purchase that had been made in direct violation of statutory law. That deception was resorted to in the matter, is made manifest in regard to the signature of the plaintiff to the petition to the legislature for the passage of this act, as developed on the trial of the estoppel claimed by the defendants, as heretofore adverted to. The facts are clear, that the plaintiff signed the petition, believing that the bill referred to other land which the trustees had been negotiating for, and that within an hour thereafter he asked permission to withdraw his name therefrom', and did then do so by drawing pencil or ink lines directly through his signature; and these lines were afterward erased by some one, without the knowledge or consent of plaintiff, so that his name appeared as one of the signers of the petition.

To what extent the legislature was put in possession of the ulterior design of the act in question, and how far the name of the plaintiff, thus fraudulently restored to the petition therefor, was used in securing its passage, are left to conjecture.

Metcalf & King, for plaintiff.

Bostwick, for defendant.

If, however, the legislature was put in possession of such design, it is not at all difficult to immagine what use was made of the fraudulently restored name of the plaintiff to the petion.

The injunction, as prayed for, will be granted.  