
    City of Cincinnati v. Taft et al.
    
      .Bond, issue by municipality — Under act of G-eneral Assembly — Validity of supplemental acts for renewal or extension of bonds — Constitutional law.
    
    .An act of the general assembly to authorize a municipality to issue bonds for the construction of a public improvement having been adjudged by this court to be constitutionally valid, and the bonds having been thereafter sold and the improvement made* the court will follow the former decision as to the validity of supplementary acts relating to the renewal or extension of such bonds.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Hamilton county.
    The defendants are the trustees of the sinking fund of Cincinnati and the trustees of the Cincinnati Southern Railway. The plaintiff brought suit in the court of common pleas to enjoin the defendants from extending the time of payment of bonds issued for the construction of said railway and from taking action or incurring liability in that behalf.
    After final judgment in the court of common pleas the cause was appealed to the circuit court where a .general demurrer to the petition of the city was sustained. and final judgment was rendered against it. Tbe petition alleges that tbe defendant boards, acting together, had issued circulars and advertisements to. the holders of such of the bonds of the city issued for the construction of said railway as are to mature July 1, 1902, and are about to exercise generally the powers defined in the act of April 25, 1898 (93 O. L., 672), with a view to extending the time of the payment of said bonds for a period not exceeding forty years. The plaintiff does not charge that the defendants are about to perform any act in excess of the authority defined in said act, but it denies the constitutional validity of the act. The circuit court sustained the general demurrer to the petition and rendered final judgment thereon against the city. The ruling upon the demurrer is assigned as error. The act in question is as follows:
    “AN ACT
    “Supplementary to an act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants, passed May 4, 1869 [66 Q.. L., page 30], (!80).
    “Section 1. Be it enaeted by the General Assembly of the State‘ of Ohio, That all bonds of any city which may have been issued for the construction of a. railway under the act to which this is supplementary,, and which have been redeemed by purchase or exchange by the trustees of tbe sinking fund of any such, city, shall be held and considered to have been fully-paid by such redemption, and shall be deemed can-, celed and destroyed, and thereafter no part of the income derived from said railway shall be applied to the payment of any interest on, or to the providing of a.. sinking fund for said canceled bonds, nor shall any levy for interest or sinking fund be made therefor.
    “Sec. 2. The trustees of the said, railway are hereby authorized by a proper indorsement or stamping on any of the outstanding bonds and the coupons thereof, issued under the act to which this is supplementary, to agree to extend the time of payment of said bonds for a period not to exceed forty years from the maturity thereof, upon the holders of such portions of said bonds as said trustees may agree with, agreeing to reduce the interest thereon to such rate as said trustees shall fix, not exceeding three and one-half per cent per annum. And said trustees are hereby further authorized to cause to be engraved, printed and attached to such bonds su.ch additional coupons as may be necessary to evidence the interest to be paid for the extended time of payment of said bonds. Any expense incurred by reason of the extension aforesaid shall be paid to the city treasurer upon the order of the board of trustees of said railway out of any income derived from said railway.
    “S'7o. 3. That section 2 of the act of March 8,1889 (86 O. L., 67), being an act entitled An act supplementary to an act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants, passed May 4, 1869, be and the same is hereby repealed/
    “Seo. 4. This act shall take effect and be in force from and after its passage.”
    
      Ellis G. Kinkead; Wade If. Ellis; E. D. Peck and fi. G. Cassatt, for plaintiff in error.
    1. Acts of the legislature which apply to particular bonds, issued for a particular purpose, by a particular city, are special.
    
      2. Acts of the legislature which authorize the extension of the bonds of a city through certain designated officers confer corporate powers.
    3. If the subject-matter of an act is general, then a classification based upon arbitrary and restrictive characteristics does not provide for the uniform operation required by the constitution.
    4. A reported decision of the Supreme Court, although in a case in which the question might have been raised, is entitled to no consideration as settling by judicial determination a principle not raised or passed upon in the decision.
    The cases of Walker v. Cincinnati, 21 Ohio St., 14, and Thoms v. Greenwood et al., 7 American Law Record, 321, decide only the constitutionality of the acts therein questioned and upon the grounds therein presented, and are not authority upon the subject of special legislation.
    5. If a board of trustees having exclusive discretion in the performance of a corporate act in behalf of the city determines to make its action dependent upon the discretion and concurrence of another board of trustees having no authority in the premises and does so act, the action thus taken is void.
    It cannot seriously be denied by the defendants in •error that these acts are special; it is, however, earnestly contended that they do not confer corporate powers. That the acts are special is evident from the fact that the legislature picks out particular bonds, issued for particular purposes, by particular officers of a single city, and legislates with respect thereto. That these acts confer corporate power is evident, since they confer upon the city of Cincinnati authority to extend, through its agents, its municipal obligations.
    
      The first section of the act of 1889 shows that that act was designed to refer to one particular railway, namely, the railway theretofore built under the provisions of the act of 1809. That that act is special in its intent is further evident from the provision that the extension of the lease shall be made within three years from the passage of the act. This makes the act equally obnoxious with the annexation act passed by the legislature April 13, 1893, and discussed in the case of State ex rel. v. Cincinnati, 52 Ohio St., 419.
    In the case of The State v. Pugh, 43 Ohio St., 98, there was involved the validity of an act applicable to Columbus.
    The trustees, who, in this act are authorized to extend the municipal obligations of the city of Cincinnati, are the trustees who are now acting by virtue of the act of the general assembly passed April 12, 1880 (77 Ohio L., 175).
    The power conferred by the act of 1898 is, therefore. a power conferred only upon trustees of a railway constructed under the act of 1869 — by the city of Cincinnati, whose bonds have been approved by the superior court of the city of Cincinnati. The act of 1898 can never refer to any other city than to Cincinnati. This is true not only because, or chiefly because, at the time of the passage of the act of 1869 Cincinnati was the only city coming within the class specifically provided in that act for this purpose; but also because this supplementary act of 1898 confers power upon the trustees who have been appointed by the superior court of Cincinnati, and have given a bond approved by that court under the provisions of the act of 1880, just cited. State ex rel. v. Smith et al., 48 Ohio St., 211.
    
      The acts of 1889 and 1898 confer upon the city of Cincinnati authority to extend for forty years certain of its municipal obligations; the recipient of that power is the city. The city is a corporation, and therefore the power conferred is a corporate power. Section 1, Article XIII, of the constitution provides that the general assembly shall pass no special act conferring corporate powers. This provision of the constitution has been held to apply to municipal corporations as well as to other corporations. Railroad Company v. Martin, 53 Ohio St., 398.
    The act of 1898 does not confer power to extend these bonds upon the trustees of the Southern railway in their own behalf; it confers the power upon the city, and makes the trustees of the Southern railway agents to exercise that power. These bonds are the city’s bonds. They constitute a contract between the city and the bondholders; no third parties can alter, modify or extend that contract, except with the consent of the parties to it. The legislature itself has no power to extend these bonds. People, etc., v. Common Council of Detroit, 28 Mich., 228.
    It has been held in a number of cases that the power of the general assembly over public corporations exists only with reference to matters public in their nature. The municipality may have rights with respect to certain kinds of property, which cannot be divested by an act of the legislature, except by the exercise of the right of eminent domain, and for a just compensation. And when municipal corporations enter into contracts, purchasing or selling commodities, the obligation of such contracts cannot be impaired as against them by a subsequent statute. When they are empowered to take and hold private property for municipal uses, there seems to be a distinction made "between the state control over their proprietorship of snch property, and the general power to be exercised over the municipal revenues, etc., by the legislature. This distinction is somewhat difficult to appreciate, but still it is made, and it is held that property, when so taken, is invested with all the security of other private rights. Grogon v. San Francisco, 18 Cal., 590; Railroad Co. v. City of New Orleans, 26 La. An., 517; Town of Milwaukee v. City of Milwaukee, 12 Wis., 98; Touchard v. Touchard, 5 Col., 506; Beach on Public Corporations, section 712.
    If it is denied by the defendants that the acts in controversy are special acts, and, therefore, do not violate section 1, article 13, of the constitution, it must follow that they are general acts, and in that case they violate section 26, article 2, of the constitution, which provides that all acts of a general nature shall have uniform operation throughout the state. The subject-matter of these acts is municipal bonds, yet the acts are so framed as to make impossible their application to any other municipality in Ohio than the city of Cincinnati. The language in section 1 of ilie act of 1898 is that “all bonds of any city which may have been issued for the construction of a railway under the act to which this is supplementary.” Costello v. Wyoming, 49 Ohio St., 202; State ex rel. v. Ellet et al., 47 Ohio St., 90; Gaylord, v. Hubbard, 56 Ohio St., 25; Commissioners v. Rosche, 50 Ohio St., 103.
    It is contended by the defendants that the constitutionality of these acts for the extension of the Southern railway bonds is governed by the decision of this court in Walker v. Cincinnati, supra. But it will be found upon á reading of this case that while it sustains the act of 1869, providing for the construction of the Southern railway by the city of Cincinnati, there is not a line in it from beginning to end which declares that that act did not infringe either section 1, article 13, or section 28, article 2, of the constitution. Whether or not it was a law of a general nature, and therefore should have had a uniform operation throughout the state was not raised in the Walker case. Whether or not it was a special act conferring corporate poAver was not raised in the Walker case, and the Supreme Court has repeatedly said in subsequent decisions that the Walker case is not to be taken as authority upon either of these questions. The court says so strongly in State v. Pugh, 43 Ohio St., 98, wherein the court revieAved at length the Walker case. But if it be true that these constitutional objections can by any possibility be said to have been decided in the Walker case, then the Supreme Court in the later cases has declared that it Avill not be guided by that decision. “For if it be true that in the past,” say the Supreme Court in State v. Pugh, “bowing to the clamors of expediency or some special exigency, we have broken through the limitations and departed from the plain proAdsions of the constitution, we cannot return too soon.” And again: “While it is important that this court should be consistent, it is also important that it should be right.” Hixson v. Burson, 54 Ohio St., 485.
    In Walker v. Cincinnati, supra, case no question of unconstitutionality Avas raised regarding section 26, article 2, or section 1, article 13, and the court specifically limits its holding to the objections urged. Railway Co. v. Martin, Tr., 53 Ohio St., 386.
    The real question involved in this case relates to the constitutionality of section 2 of the act of April 25, 1898 (93 Laws, 6721.
    
      The act in question is a special act conferring corporate power, and is therefore invalid because it contravenes the provisions of the constitution forbidding the passage of such acts.
    The bonds to which the provisions of this act apply are those which have been issued for the construction of a railway under the act of May 4,1869, which have been redeemed by purchase or exchange by the trustees of the sinking fund of the city constructing such railway. As Cincinnati is the only city which has, or ever had, any such railway, or any such outstanding-bonds, it is obvious that the section can only apply to Cincinnati, and that no other city can ever by any possibility come within its provisions. State v. Covington, 29 Ohio St., 111; State v. Smith, 48 Ohio St., 211.
    But these are in effect only repetitions of a proposition of law frequently stated by this court. State v. Cincinnati, 23 Ohio St., 446; State v. Anderson, 44 Ohio St., 247; State v. Pugh, 43 Ohio St., 98; State v. Constantine, 42 Ohio St., 437; State v. Mitchell, 31 Ohio St., 608; State v. Cincinnati, 52 Ohio St., 419.
    It has, however, been suggested that, because the act in question is supplementary to the act of May 4, 1S69, and that as the latter is not open to the same objection, the invalidity of the first mentioned act is in some way cured by the older statute. Assuming for the moment that the act of May 4,1869, is not special, we do not perceive how that can fairly answer the objection that the later act is special. The constitution makes no exception as to supplementary or any other class of facts, but all which are special are alike prohibited if they confer corporate power. To hold that a state of things may be created by an act of a general nature, such as to authorize subsequent supplementary acts of a special nature conferring corporate power, would seem to be an attempt to read an amendment into the constitution.
    It is contended that it bas been decided that the original Southern railway act of May 4,1869, was not a special act conferring corporate power, but this court has more than once pointed out that such contention is erroneous. The question was not raised or decided in the case of Walker v. Cincinnati, 21 Ohio St., 14, wherein that act was sustained as against certain objections then urged.
    In the case of Stale v. Pugh, 43 Ohio St., 98, the court points out that the question was not raised in the Walker case; and the same observation was made in the case of Railway Co. v. Martin, 53 Ohio St., 399.
    It is quite obvious from these and other cases that the court has not been disposed to extend the doctrines of the Walker case.
    The defendants in error, contend that the plaintiff in error “is concluded by the series of decisions which have been made upon the principle of res judicata, unless it is necessary to determine in this case some questions differing in principle from any which were involved in the cases in which said former decisions were rendered.” This is an extension of the doctrine of res judicata beyond any reported case.
    To constitute the defense of res jucticata, it is necessary that the subject-matter in the action at bar and in a previous cause be identical. Hinton v. McNeil, 5 Ohio, 511.
    The subject-matter of this action is the proposed extension of bonds under the act of the legislature of 1898. This act was not in existence at the time of the rendition of the decisions cited in the historical review contained in the first forty-two pages of the brief of the defendants in error. It is, therefore, evident that the subject-matter of this action, viz., the extension of bonds under that act, is not identical with the subject-matter in any of these preceding cases. We know of no authority under which the determination of a question of law, as in this case, the constitutionality of one act becomes res judicata upon a similar question, as the constitutionality of another similar act subsequently passed, even though the parties to both actions be the same.
    It is to be observed, even could the defense of res judicata be invoked, it is not available in the present case for the reason that it was not pleaded. Meiss v. Gill. 44 Ohio St., 253.
    No stronger statement of the limitations of the doctrine of stare decisis can be made than those which have been pronounced by this court in the case of Hixson v. Burson, in which this court declared the subject of roads to be of a general nature.
    The very cases relied upon by defendants in error, Walker v. City, 21 Ohio St., 14; State v. Covington, 29 Ohio St., 102; State v. Cincinnati, 23 Ohio St., 445 (the hospital case); State v. Cincinnati, 20 Ohio St., 38, were before this court, in the case of State v. Pugh, 43 Ohio St., 98.
    The proper limitations of the rule of stare decisis are well set forth in an article upon that subject in the American and English Encyclopedia of Law, Yol. 23, page 36:
    It is not, however, conceded by the plaintiff in error that the cases cited by the defendants in error furnish á basis for the application of the rule stare decisis. That rule is chiefly invoked for the protection of rights which have vested upon the faith of previous adjudications of a court of last resort. The injunction which is sought by the plaintiff in this ease will have no effect upon any private rights which have been acquired upon the faith of the Southern railway acts heretofore upheld by the Ohio courts. No attack is made upon the validity of any of the bonds issued pursuant to any of these acts and no infirmity will attach to the Southern railway obligations now outstanding. The only question involved in the case at bar is the extension of these bonds under authority given to a particular board acting for the city of Cincinnati under special legislation. If that act is declared unconstitutional in this case no public or private rights of property will be affected thereby. The obligations which the defendants in error propose to extend will still remain obligations of the city of Cincinnati and be subject to payment at their maturity or to refunding or extension under general laws now upon the statute books. There are ample laws whose general character is unquestioned, under authority of which refunding or extension of these bonds may be had at as low or lower rates of interest than in the case at bar. We refer particularly to Revised Statutes, section 2709, as amended in 1898, sections 2729a, 2729p2, and 2729/?2. The situation, therefore, which is presented by the present case is not one calling for the application of the doctrine of stare decisis, even were the cases cited by defendants in error all pertinent to their contention. It is submitted, however, that none of these cases support the proposition that the act in question is not a special act conferring-corporate power, or that it is a law of a general nature and has uniform operation throughout the state.
    W. T. Porter ; R. A. Harrison; B. /i. Ferguson and J. R. Sayler, for defendants in error.
    
      The act of April 25,1S98, is resisted by the plaintiff' in error upon the supposed ground that it is a “special act conferring corporate powers” within the meaning of Art. XIII, sec. 1, of the Constitution.
    One decisive answer to’ this contention is, that the-decisions of this court before cited ifiainly and conclusively prove that it cannot be entertained, or if' entertained it cannot be sustained. The question attempted to be made is no longer open to discussion, it having passed beyond the stage of controversy into, final judgment.
    In the first place, the validity of the act of May 4, 1869, and that of March 25,1870, was litigated in the case of Walker v. Cincinnati, supra, and both acts were adjudged to be constitutional and valid. The validity of the bonds to be issued by the trustees of the railway under said act of 1869 was conclusively determined in that case, and the bonds authorized by that act were issued accordingly. Every citizen or taxpayer of the city was a party or privy to that litigation, and is bound by the judgment of this court, upon the principle of res judicata. It was decided between the parties in that case, that the originial act was “general” and not special; for it gave to the city council, acting in its municipal legislative capacity, certain powers, and if these powers were “special,” it could not have been sustained. It was also decided that the trustees of the Cincinnati Southern railway were not a corporation, and that the powers conferred upon them were conferred upon them as an unincorporated board of trustees created by the state. The. act could not have been sustained if the powers vested in them had been held to be conferred by a special act and to be “corporate powers.”
    
      In the second place, the constitutional validity of several acts supplementary to the parent statute of May 4,1869, has been sustained by this court, in a series of suits in which the city of Cincinnati was a party.
    It follows that the plaintiff in error in the present case is concluded by the series of decisions which have been made, upon the principle of res judicata, unless it is necessary to determine in this case some question differing in principle from any which were involved in the cases in which said former decisions were rendered.
    But independent of the strict doctrine of res judicata. the policy of the law requires stability in judicial decisions; and so the principle of stare decisis is applicable to this case. The acts of the General Assembly under which each of the series of bonds were issued by the trustees of the railway were, in a series of cases, adjudged by this court to be valid acts; and the bonds were issued upon the faith of these solemn judgments. A stronger case for the application of the maxim stare decisis cannot transpire. State ex rel. v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; State of Ohio, etc., v. Davis et al., 23 Ohio St., 434; The State etc., v. Cincinnati et al., 23 Ohio St., 445; The State ex rel. Atty. Gen. v. Covington, 29 Ohio St., 102.
    The contention of opposing counsel that the city is the beneficiary, and the board of trustees are the mere agents of the city, and therefore the grant of power to the board is a grant of power to the city, is adequately and conclusively met and answered by the decisions in the two hospital cases cited. These cases must be read together in order to be fully understood and appreciated. The Cincinnati hospital was and is an institution maintained by taxation upon the city. Its trustees, like the trustees of the Southern railway, have no property interest in it or its management. They are mere trustees, managing it for the benefit of the public, the burden of supporting it being imposed upon the taxpayers of the city.
    In the case of The State v. Sherman, 22 Ohio St., 411, the Pittsburgh, Ft. Wayne & Chicago Railroad Company had been sold to pay its debts, and rechartered as “The Pittsburgh, Ft. Wayne & Chicago Railway Company” by the legislatures of Pennsylvania, Indiana and Illinois. The state of Ohio had passed an act in 1863, enacting “that the purchasers of the railroad situate wholly or partly within this state, which has been sold pursuant to judicial order, may acquire the franchise to be a corporation originally vested in the company Avhich held the said- railroad prior to such sale by a grant of said company.” There was but one railroad in that precise condition, and to provide for this act was intended.
    In the other case it is to be observed that, the court cite Welker v. Potter as an approved precedent for the construction' of the term “general,” as applied to cities, in art. 13, secs. 1 and 2. What gives importance to this citation and approval by the court of Welker v. Potter, is that they fully recognize the fact that the decision in that case covered art. 13, secs. 1 and 2, as Avell as art. 2, sec. 26, as it certainly did, and they approve the decision in its application to both sections of the constitution. State v. McGregor, 44 Ohio St., 628.
    The final decision of this court in the Thoms case at its December Term, 1878, sustaining the constitutionality of the supplementary act of May 15, 1878, a summary of the propositions laid down by the superior court being contained in the foregoing statement, conclusively shows the validity of the supplementary act of April 25, 1898.
    The act in question in the Thoms case was a supplementary act and affected every person who was within the relations and circumstances provided for by it at the time of its passage; and that is the attribute which determines the nature of the act as a general law having a uniform operation, whether perpetual or temporary in its operation; for a general law may be temporary. If at the time a supplemental act is passed, conditions exist in the group of cities or in any of the group of cities described in the parent statute, and which the supplemental act provides relief from, it is not a. special act, whether it is of perpetual or only of temporary operation. And if such an act were held to be-conferred are conferred upon an independent board of' special, it would not be invalid if the powers thereby trustees created by the state and appointed by a state court.
    In the cases above commented upon it was urged that each of the several acts under which they arose was unconstitutional, upon the ground that each of them could not practically and in point of fact apply to any other city than Cincinnati. But the objection was overruled, either because, as the court held, that the act brought in question in each case was a law of' a general nature having a uniform operation throughout the state, within the meaning of section 26, article-2, of the constitution, or else that if the act was a. special act it did not confer corporate powers within the settled meaning of the first section of article 13. These cases sustain the act of April 25,1898; for, if as was held in them, the acts under which they arose-were not obnoxious to said objection, the act of April 25, 1898, is clearly not. As-said acts were sustained, notwithstanding they did not or might not practically and in point of fact apply to any other city than Cincinnati, the act now brought in question is not invalid because it practically and in point of fact may not now and may never apply to any other city than Cincinnati.
    “Where a city has proceeded under a general .law to construct a public improvement and its funds give out, the legislature may, by special act, confer power on it to complete the enterprise. Power conferred by general law being exercised by special legislation to perfect and effectuate the work is valid.” Merrill v. Toledo, 6 C. C., 430; 3 Circ. Dec. 524; Foster v. Commissioners, 9 Ohio St., 540.
    Although the power conferred by the supplemental act of April 25,1898, does not provide for the completion of any railway authorized to be provided by the original act, it does provide for conditions created by the actual construction thereof by a board of trustees created by the legislature, in the mode therein prescribed. Surely, no adequate reason can be assigned to prove that it is not competent for the general assembly to provide, by appropriate legislation, for relief from such conditions, as well as to make provision for the completion of the railway. To hold that the constitution has imposed such an absurd restriction upon the exercise of legislative power as the objection is based upon, would be to hold that the legislature is powerless to provide a remedy for conditions created by the lawful exercise of powers lawfully granted. The power to grant legislative relief in such cases is necessarily implied, as incidental to tlie exercise of express powers previously granted.
    The history of the Cincinnati Southern Railway, and the nature and number of the supplements to the original act of May 4, 1869, authorizing its construction, show that the construction of such a great public work or thoroughfare cannot be safely undertaken unless relief from unforeseen conditions, which may arise either during its construction or after its completion, can be guarded against by appropriate and adequate supplementary enactments. Such supplementary legislation is grafted by the legislature in the parent statute, and is; in legal effect, a part thereof, and gives it its legal status.
    An act and its supplement are to be construed as one law. Van Riper v. Essex Public Road Board, 38 N. J. L., 23.
    The powers conferred upon a city council are corporate powers, because the council is the legislative and governing body of the city. But powers conferred by the general assembly upon an independent board of trustees which are strictly subordinate and ancillary to the general powers conferred upon a city,, and are not connected with or a part of the municipal powers to be exercised in governing the city, and which are to be exercised not according to the Avill of' the city but according to its own independent judgment and discretion, under the statute creating it, is. not a corporate power. The fact that the general assembly provides for the appointment, by a state court, of a board of trustees, and authorizes them to enter into pecuniary obligations which bind the city, and to acquire title to property, both real and personal, and to take the title thereto in their own names, in trust for a city, does not impart a corporate quality to their powers, provided such powers are in their nature strictly subordinate and ancillary to powers previously lawfully conferred upon and exercised by the city, and are to be exercised by the board independent of the city. The primary powers conferred upon the city, in such case cannot be conferred by special laws; and it may be impossible, or highly injurious to the inhabitants of the city, to provide for special conditions, exigencies and emergencies, without the interposition of trustees invested with certain defined authority.
    If the act of April 25, 3898, was held to be a “special act,” it would, nevertheless, be held valid, because it does not confer corporate power.
    Its extent is restricted to an extension, with the consent of the holders of the bonds, of the time of' payment thereof at a less rate of interest. Sherman County v. Simonds, 300 U. S., 735.
    Beach on Public Corporations, Vol. 2, Sec. 928.
    Trustees appointed under the act of May 4, 1869,. constitute an independent board. They are not appointed by the city, either directly or indirectly. Their powers are derived from and defined by the general assembly, and not bv the city. The statute authorizes them to make contracts in their own name, and to appoint their own officers and employ their uwn agents, and take security from their officers and agents for the faithful performance of their duties under such appointment or employment. The legal title to the line of railway is primarily vested in the trustees. The city cannot vary either the powers or duties of the trustees. The facts that the trustees are authorized to issue bonds of the city to raise the money necessary to construct a railway under the statute, and that taxation is necessary to provide for the payment of the bonds, are not material facts in this connection. State ex rel v. Davis et al., 23 Ohio St., 434.
    It is said that “acts of the legislature which authorize the extension of the bonds of the city through certain designated officers confer corporate power.”
    This proposition, if it were sound, has no application to the act of April 25, 1898; for, trustees of a railway appointed under the act of May 4, 1869, are not municipal “officers.” They constitute a board; and, as such, it is an unincorporated body created by the state, and appointed by a court thereof, and has a defined independent status, having powers, rights and duties conferred directly by the state, and to be exercised according to its own independent judgment. It has nothing whatever to do with the government of the city.
    But if its members were “officers,” it would not follow that the powers conferred upon them are corporate powers. State v. Pugh, 43 Ohio St., 98.
    On this point the case of the State v. Covington, 29 Ohio St., 111, is in point. State v. Constantine, 42 Ohio St., 437; State v. Nelson, 52 Ohio St., 88; Driggs v. The State, 52 Ohio St., 37; Philadelphia v. Wheeley, 77 Penn. St., 338; State v. Butts, 31 Kansas, 537.
   Shatjck, O. J.

Counsel for the plaintiff insist that the act is void because repugnant to the 13th article of the constitution of the state, and particularly to the first section of that article: “The general assembly shall pass no special act conferring corporate power;” and to the sixth section: “The general assembly shall provide for the organization of cities and incorporated Tillages by general laws.” That the inhibition of the first section applies to municipal as well as to private corporations seems clear from its comprehensive terms. That it does so apply has not, so far as we know, been doubted since it was so decided in State ex rel. Attorney General v. City of Cincinnati, 20 Ohio St., 18. The act confers upon the city the corporate power of taxation, and it is insisted that the argument against its validity is completed by the proposition that it is necessarily special because it applies to no municipality except Cincinnati.

It would seem that an answer to this argument must be found, if anywhere, in the authority of the former decisions of this court. Those decisions are cited by counsel upon either side, it being contended for the plaintiff that the rules of interpretation defined in numerous cases compel the conclusion that the act is void. However that may be, it is true that the act does not designate Cincinnati by name but describes'it by grade and class; and that although the operation of the act is as effectually restricted to Cincinnati as though it were named, in all the decisions of this court relating to the precise subject that classification has been sustained, i The reports of the- court show that with respect to this subject- the maxim stare clecisis and the reasons for adhering to former decisions have been urged with frequency and earnestness. It does not seem to be doubted that they have received from the court all the consideration to which they are entitled. The maxim is founded upon reason, and it should not be so applied as to banish reason from the law. It must apply to different cases with varying degrees of force according to the reasons for its application. Its effect should be conclusive when former decisions have recognized and defined rules of interpretation with reference to which parties have entered into contractual relations. That effect of the maxim is required by a conservative regard for the repose of society. Such apx>lications of the maxim are encouraged by the consideration that however clearly it may appear to the court that former decisions should not have been made, their operation must be regarded as at least tolerable until the rules which they define are changed by the legislature by laws operating x>rospectively and disturbing no vested right. The maxim would seem to be entitled to the least possible force when invoked to support enactments passed by the legislature in disregard of the boundaries which the constitution has fixed to its power, and where no real or supposed interests have become vested. If the original act of classification by which two classes of cities were created, with but one city in a class, was void because the constitution contains an exclusive classification of municipalities as “cities” and “incorporated villages,” the point, if noticed, was not commented upon. If it was an error to disregard the actual operation of acts conferring corporate power upon a single city by such classification, and to rely upon the hope that the future might give to such acts a wider operation, the error was at least extenuated by the consideration, made prominent in the decisions, that the legislature intended to respect the constitution and that the classification was to be permanent so that in the development of the state other cities might enter the classes then created. Unless judges are absolved from the use of reason, a conclusion resting upon that consideration would not be entertained now if it has been made clear that no classification is permitted to be permanent; that by increasing the number of classes and dividing the classes into grades what is called classification is employed for the isolation of every city in the state, and that acts Avhose operation is limited and defined by such classification confer corporate poAver in palpable violation of the constitution.

There is, however, one decision Avhicli seems to be entitled to conclusive effect in support of the judgment of the circuit court. In Walker v. Cincinnati, 21 Ohio St., 14, it Avas decided that the act of May 4, 1869, entitled “an act relating to cities of the first class,” etc., commonly knoAvn as the Cincinnati RailAvay act, was valid. The act before us is supplementary to that Avhose validity was there affirmed. Counsel for the plaintiff are aAvare of the familiar rule that supplementary acts are, in their interpretation, subject to the same rules as those which they supplement, to the end that the entire body of legislation so related may operate harmoniously. Nor do we understand them to deny that this rule embraces all constitutional questions which may have been involved in the original act. But, AAthile admitting that the present act is in form supplementary to that, they insist that it is not so in the substance of its provisions. This position does not appear to be well chosen. It resulted from the decision in Walker v. Cincinnati, that a condition arose in that city which is not found in any other city of the state. In the exercise of authority which, according to the judgment in that case, the original act conferred upon the city, municipal bonds in large amounts were issued. They were purchased in reliance upon the judgment in that case. The money realized from their sale was expended in the construction of the railway. The city through trustees is now engaged in operating the railway and caring for the debt so created. The peculiar condition thus arising in Cincinnati is the precise subject of the legislation whose validity is now denied. It would be intolerable if a change in the judges composing a court should result in setting aside judgments believed to have been erroneously rendered. The case is not within the usual application of the maxim stare decisis, but within the rules which require stability of judgments. Judgments may not be set aside after term merely because they are believed to have been erroneously rendered, though it is not required that like judgments be thereafter rendered in similar cases. The judges who decided Walker v. Cincinnati, could not with propriety have set aside their judgment when they became satisfied that it had been erroneously rendered, the supposed authority having in the meantime been exercised. It may. be that the most obvious reasons for holding the original act void were not presented by counsel nor considered by the court in that case. Indeed the concluding sentence of the opinion seems to intimate that they were not. However, that may bej the failure to consider such reasons could not affect the case otherwise than to impair its authority when presented in support of the validity of independent legislation of a like character. That failure does not at all detract from the conclusiveness of the judgment then rendered, which was, in effect, that this legislation is valid.

It may aid to prevent improper inferences if it is added that it is not intended by any of these observations to intimate the. opinion that Walker v. Cincinnati was correctly decided nor that the maxim stare decisis would require the same judgment with respect to independent legislation of like character.

Judgment affirmed.  