
    Gaylord et al. v. Hubbard, Treasurer.
    
      Board cf equalization — Appointment of — Laws of uniform operation —Invalidity of act of April 13, 1893 — Constitutional law.
    
    Section 5 of an act passed April 13th, 1892 (89 Ohio Laws, 283), To provide for the appointment of a board of equalization and assessment in cities of the second grade of the first class,” confers on the annual board of equalization created by the act, powers that substantially differ from those conferred upon all other annual boards of equalization in this state by the general statute upon that subject, and for that reason conflicts with section 26 of article II of the constitution of this state, and is void.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiffs in error, as owners of real property situated in the second ward of the city of Cleveland, brought this action in the court of common pleas of Cuyahoga county, against the county treasurer, to restrain that officer from collecting certain taxes which the petition alleged had been unlawfully added to their property by reason of its value having been raised by the annual board of equalization of the city of Cleveland, above that fixed thereon by the preceding decennial city and state boards. The plaintiffs prevailed in the court of common pleas. The cause was then appealed to the circuit court by the defendant, in which latter court the defendants had judgment. The plaintiffs thereupon brought the cause to this eour fc for review on error. The facts necessary to an understanding of the decision will be found in the opinion.
    
      Burke <& Ingersoll, for plaintiffs m error.
    
      The law of 1892, under consideration, violates article II, section 26, of the constitution. It is a law of a general nature, and its operation is limited to the city of Cleveland. This court has clearly defined, as we understand its opinion, when a law is of a general nature. Kelly v. The State, 6 Ohio St., 269; Hixson v. Bur son, 54 Ohio St., 470; State ex rel v. Davis, 55 Ohio St., 15; McGill v. State, 34 Ohio St., 238; Cincinnati v. Steinkamp, 54 Ohio St., 284.
    We contend, as to the notice given by this board preliminary to making the increase of valúa-' tion upon the property of plaintiffs, that either this special law for Cleveland permits the change of decennial valuation without requiring any notice to be given to the owner, and in that event is obnoxious to the charge that it disregards and differs from, the law pertaining to all the rest of the state, as laid down in sections 2805 and 2806, which both require notice, and which cover the entire state in terms; and thus violates article II, section 26 of the constitution or else, if notice is required as by sections 2804 and 2805, no such notice was given as is required by law. Section 28046 (89 O. L. 174) requires that notice such as provided for shall be served. This statute is mandatory, and must be strictly followed. Perkins v. Zumstein, 4 C. C. Rep., 371; 25 Am. &-Eng. Ency., 76, Title, Taxation; Cooley on Taxation, 287; Power’s Appeal, 29 Mich., 504; Lagronev. Rains etal., 48 Me., 536; Cooley on Taxation, 365.
    The constitutional provision that all “laws of of a general nature shall have a uniform operation throughout the state,” is mandatory and not directory. Ex pande Falk, 42 Ohio St., 638; State v0 Ellett, 47 Ohio St., 90; Costello v. Wyoming, 49 Ohio St., 202.
    The action of the Cleveland board in question, in changing in 1894 the valuation given in 1890 by the decennial state board, to the lands of the petitioners in the city of Cleveland, was in violation of article XII, section 2, of the constitution of Ohio which provides£ £ Laws shall be passed taxing by a uniform rule all real property according to its real value in money. ’ ’ Cooley on Taxation, 259.; Bank v. Hines, 3 Ohio St., 15; State ex rel. v. Jones, 51 Ohio St., 492; People v. Weaver, 100 U. S., 539; Cummings v. Bank, 101 U. S., 158; Bloom v. Richcvrd, 2 Ohio St., 402.
    If we understand the drift of recent decisions by this court, it is to the effect that classification of cities has been sustained by this court upon the grounds of necessity for the purposes of organization of municipal corporations and conferring upon them corporate powers, and for no other purpose. Cincinnati v. Steinkamp, 54 Ohio St., 284; Ilixon v. Bur son et al., 54 Ohio St., 470. The law in ques. tion attempts to extend the principle of classification so that it shall apply to the purpose of assessing a tax; part of which, at least, is for general state purposes.
    The law comes clearly within the reasoning laid down by this court in the case of The State v. Pugh, 43 Ohio St., 98.
    This honorable court has very recently announced in the State v. Cincinnati, 52 Ohio St., 448, the principle upon which the classification of cities may be sustained.
    
      P. H. Kaiser, and Norton, Phillips & Growl, for defendant in error.
    
      The statute under consideration is not a law of a general nature within the meaning of section 26, of article 2, of the constitution of Ohio. Attempts have been made by this court, as well as by other courts of great learning to define with exactness the 'phrase, “law of a general nature,” but all these efforts have left in the mind an annoying sense of vagueness and incompleteness. Kelley v. The State, 6 Ohio St., 269; McGill v. State, 34 Ohio St., 245; State ex rel. v. Bargus, 53 Ohio St., 94 ; Ilixson v. Bur son, 54 Ohio St., 470.
    Frequent changes in values demand frequent, adjustments in values, if property is to stand upon the duplicate at “its true value in money,” as prescribed by the constitution. Article XII, Section 2.
    
    The law under consideration, then, is not one of a general, but one of a local nature, and is not required by the constitution to operate uniformly in every part of the state.
    In the following cases, statutes were held to be of a local nature: Cricket v. The State, 18 Ohio St., 9; State ex rel. v. The Judges, 21 Ohio St., 1; State ex rel. v. Mitchell, 31 Ohio St., 592; Ohio ex rel. v. ■ Covington, 29 Ohio St., 102; McGill v. State, 34 Ohio St., 228; State ex rel. v. Cappeller, 39 Ohio St., 207; State ex rel. v. Shearer, 46 Ohio St., 75; Hart v. Murray, 48 Ohio St,5 605; State ex rel. v. Jones, Auditor, 51 Ohio St., 503; State v. Kendle, 52Ohio St., 346.
    The foregoing cases illustrate well the proposition that the constitution does not have to do at all with the details of administration, but leaves all such matters to the discretion of the legislative body.
    If the court should hold the statute under consideration to be a law of a general nature and that it must have uniform operation throughout the state, we claim that it does have such operation upon all cities of the first class, second grade, and that such classification of cities comes within the rule adopted by the court in numerous cases among which are the following: The State v. Powers. 38 Ohio St., 63; The State v. Brewster, 39 Ohio St., 653; The State ex rel. v.Wall et ql., 47 Ohio St.,- 500; State ex rel -v.. Cincinnati, 52 Ohio St., 419; The State v. Pugh, 43 Ohio St., 112; The State ex rel. Attorney General, v. Hawkins, 44 Ohio St., 108; Bronson v. Obevlin, 41 Ohio St., 480; Costello v. Wyoming, 49 Ohio St., 209.
    The legislation under consideration does not violate section 2, of article XII 'of the constitution.
    As its title indicates, the subject-matter of the statute is equalization and assessment of values. The rule of uniformity required by section 2, of article XII, of the constitution, is not violated by a statute which provides that in certain localities, property may be valued, and equalized by different modes and agencies from those provided in other statutes for other localities. Wagner v. Loomis, 37 Ohio St., 571; State ex rel.sr. Jones, Aud., 51 Ohio St., 492.
    Plaintiffs in error assail the action of the board of equalization upon the ground thatnonotice, such .as is required by law, was given of theintended action of the board. This objection cannot have any force except upon the assumption that the legislation under consideration is valid, and that the action of the .board would have been lawful, had the requisite notice been given. The agreed statement of facts contain the following statement: “Individual protests were made by taxpayers of said ward, from time to time, while the matter was pending before the board, including by means of general and individual protests all of the plaintiffs and all of the crosspetitioners. ” Whether, therefore, notice was or was not required, the plaintiffs in error all voluntarily entered their appearance in the proceedings had before and by the board of equalization, and they cannot now sucessfully make the point of want of notice.
   Bradbury, J.

The plaintiffs, upon two grounds, deny the legality of the proceedings by which the taxable value of their property was raised above that fixed by the preceding decennial appraisement.

i. Because the statute authorizing the proceeding violates two provisions of the constitution of the state: 2. Because due notice of the proceedings was not given' to them.

The statute, they aver, conflicts with article 2, section 26, of the constitution, which declares: ‘ ‘All laws of a general nature shall have a uniform operation throughout the state.” And also with section 2, of article XII, which declares: “Laws shall be passed, taxing by a uniform rule all real and personal property.”

The act assailed is found in volume 89 Ohio Laws, 283. It provides for the appointment by the probate court of a board of equalization composed of three members, not more than two of whom shall belong to the same political party. It also provides for their organization, prescribes their duties and fixes their compensation. This proceeding, however, was not instituted to oust them from their office, nor to defeat their title to compensation, and therefore we have no concern with thefirst, second, third and fourth sections of the act which deal with these subjects. The fifth section, however, defines the authority of the board after its organization, and the plaintiffs contend that the powers thus conferred upon this board are materially different, and more extensive than are the powers conferred upon boards of equalization in.other cities or upon county boards, and therefore theyaremade subject to a power not operative in any other part of the state. The section reads as follows :

Section 5. “That as soon as practicable after the first Monday of May, 1892, and annually thereafter, the said board shall proceed to hear complaints and to equalize the valuation of all real property in such city; and it shall have the power to raise the valuation of certain tracts and lots of real property as in its opinion are valued below the true value thereof,' and to reduce the valuation of such tracts and lots of real property as in its opinion are valued above their real value, as compared with the average valuation of the real property in such city; and it shall have all the power provided by law for decennial count}? boards for the equalization of real property, and shall be governed by the rule prescribed by such decennial boards in equalizing the valuations returned by district assessors, provided that it shall not reduce the value of the real property of the city below the aggregate thereof as fixed by the state board of equalization, nor below its aggregate value on the duplicate of the preceeding year, to which shall be added the value of all new entries and new structures over the value of those destroyed as returned for the current year.”

This section is dealing with the boar din its character of an annual board, and the powers it prescribes should be regarded as belonging to it while acting as such. These powers are identical with those enjoyed by decennial county board of equalization of real property.

Section '6 of the act (89 Ohio Laws, 284), makes this board also a decennial board, and except as otherwise provided in the act, clothes it with all the powers of a city decennial board for equalizing the value of real property, and also while so acting with all the powers of an annual board as well as some additional powers. The entire field of authority of this body, while acting as a decennial board, is covered by section- 6 of the act. There is no necessity for resorting to the preceding section, to ascertain its decennial powers. The suggestion, therefore, that the clause of section five, which gives the board the powers of a decennial county board, refers to it in decennial capacity is not sound. Section five, as we have seen, is dealing with it as an annual board and clothing it with authority, as such, and its provisions should be held to refer to it in that capacity.

Section 2804, Revised Statutes, which prescribes the duties and powers of annual county boards for equalizing the value of real and personal property, is in the following terms : .

Section 2804. “There shall be an annual board for the equalization of real-and personal property, moneys and credits in each county, exclusive of cities of the first and second class, to be composed of the county commissioners and county auditor, who shall meet for that purpose at the auditor’s office, in each county,, on the Wednesday . after the third Monday in May, annually. Said board shall have power to hear complaints, and to equalize the valuation of all real and personalproperty, moneys and credits within the county, and shall be governed by the rules prescribed for the government of decennial county boards for the equalization of real property; provided, that said board shall not reduce the value of the real property of the county below the aggregate value thereof as fixed by the state board of equalization, nor below its aggregate value on the duplicate of the preceding year, to which shall be added the value of all new entries and new structures over the value of those destroyed, as returned by the several township assessors for the current year; provided, further, that except as to new structures, and structures destroyed, and lands and lots brought on the tax list since the preceding decennial state board of equalization, the annual county board shall not increase or reduce the valuation of any real estate, except in cases of gross inequality, and then only upon reasonable notice to all persons directly interested, and an opportunity for a full hearing of the question involved. ” * * *

An inspection and comparison of this section— 2804 — Revised Statutes, with the provisions of section 5 of the act in controversy, will show a substantial difference in the authority which they respectively confer. That conferred upon the annual board sitting in and for the city of Cleveland is materially greater than that conferred by the general statute, on all the other annual boards within the state. In the city of Cleveland the powers of the annual board of equalization are practically unlimited, except in respect of diminishing existing' aggregate values. No bounds whatever are fixed to its power to increase. It may act upon whole districts, and without personal notice to the owners of real property situated therein. As to the owners of real property within the city of Cleveland the values set thereon by the preceding state board of equalization has no significance, except that their aggregate burden cannot be decreased. No such power has been conferred upon annual boards of equalization sitting in the other parts of the state. They can act only upon specific parcels of real property, and only in cases of gross inequality, and after personal notice.

Section 5 of the act in question (89 Ohio Laws, 384) therefore subjects real property within the city of Cleveland to a burden from which all other real property within the state is exempt, and therefore the section has,not a uniform operation throughout the state.

If it is a law of a general nature this failure' of uniform operation brings it within the constitutional inhibition of section 26, of Article II. of the constitution of this state.

That we have no infallible standard by which to determine what constitutes a general law, has contributed chiefly, if not solely, to the apparent want of harmony in the adjudications and opinions upon the subject in the several states whose constitutions require general laws to operate uniformly in every part of the state. Much, if not all, of this uncertainty would have been avoided if the courts had adopted and rigidly adhered to the principle that the character of the law in this respect, followed that of its subject-matter, being general wherever it dealt with a general subject, and local whenever it concerned a local subject. The necessities of the ease prohibit the question from being controlled by the form of the statute. If a statute, by expressly or inferentially declaring to be local, a subject of legislation existing in every subdivision of the state and of general interest, could then proceed to legislate upon it for a portion of the state only, this constitutional provision would have no value. An evasion so easily made would accomplish practical nullification. This cannot be allowed. The form of the statute, therefore, should be disregarded, .and attention given to its substance. If, in fact, a statute relates to a subject which can be regulated only by a general law, such statute should be considered a general statute, although in form local; that is, couched in terms,by which its operation is expressly limited to a single locality. This limitation of its operation does not render the statute local, but makes it void because as thus limited it conflicts with the constitutional provision requiring general laws to operate uniformly throughout the state.

This view of the question also denies to the general assembly the power to conclusively determine whether a subject, upon which they are about to legislate, is general or local in its nature. If such subject is, in its nature, general, its character can not be changed by legislative declaration. If this result could be brought about in that way, all that would be necessary to the validity of a local statute dealing with a general subject, would be a prior declaration that the subject was local.

As the character of a statute, whether local or general, does not depend solely upon its form, so the character of its subject-matter is independent ■of legislative declaration. The two propositions are so closely allied as to be interdependent if not practically identical.

Our sense of the inherent fitness of things finds much to commend in the theory that all general subjects should be regulated by general laws, »and all subjects of a local nature by local laws; and tbe mind meets great difficulty in divesting itself of tbe notion that tbe framers of tbe constitution intended to secure this end by tbe provision respecting the uniform operation of general laws. This court,- however, as well as those of other states having a similar provision, in the practical administration of justice, has not adhered to this theory: though at all times and in every ease, the subject of legislation has been accorded great weight in determining the character of the statute, and has generally controlled the question. Kelly v. The State, 6 Ohio St., 269; Hixson v. Burson et al., 54 Ohio St., 470.

The courts might have adhered more closely to the theory above stated, if there could be erected an infallible standard by which to determine the character of the subject of a statute, so that the line of demarkation between general, and local matters could be fixed with certainty, and each assigned to its proper class with absolute confidence. I know of no test capable of such universal application. The only practicable rule on the subject is that which requires each case as it arises to be placed in the one class or the other as the common understanding’ of mankind may dictate.

This is the rule of inclusion and exclusion, adopted by the Supreme Court of the United States in Davidson v. New Orleans,96 U. S., 97, in determining what shall constitute “due process of law” under the fourteenth amendment to the constitution of the United States, and which was referred to with approval by Judge Boynton, in McGill v. The State, 34 Ohio St., 228.

In the case before us, however, we encounter no difficulty in assigning the subject of the section in question (section 5, 89 Ohio Laws, 283), to its appropriate class. Its nature, is unmistakably general. The power it confers could be exercised as appropriately over every parcel of land within the state as it could be over those situated within the limits of the city of Cleveland, to which its operation is confined. A subject of more widespread interest can hardly be conceived. It directly concerns every owner of a parcel of land within the state, and indirectly the owner of every other species of property liable to taxation under our system of raising- public revenue, and also affects the public revenue itself.

According to the generally received notions of mankind, a subject is general wherever it relates to interests so extensive, and to persons so numerous. The record discloses no local conditions demanding special relief, and none are suggested in argument that might not exist in any other section of the state. The city of Cleveland may be thrifty, and that thrift may cause some portions of the city to develop more rapidly than other sections, and values of real property fluctuate accordingly. This, however, may be affirmed of many other towns and cities within the state, and in a greater or less degree of mining and oil producing territory, and even agricultural districts lying outside of towns and cities. And in other instances decay of trade or the destruction or removal of extensive manufacturing establishments has produced a similar change in values, which demand relief as loudly as similar conditions do in the city of Cleveland.

This court held, in Commissioners v. Rosche Bros., 50 Ohio St., 103, that an act authorizing a county containing a city of the first grade of the first class (Hamilton county), to refund taxes erroneously paid under section 2742, Revised Statutes, violated section 26 of Article XI, of the constitution of this state. That act granted relief to tax payers who, in a county having a city of the first grade of the first class, had erroneously paid taxes under a certain section of the Revised Statutes, while no relief was provided for a taxpayer for taxes paid under similar conditions in the other counties of the state. The act in that case granted relief to persons who had paid taxes in one county, which were denied to persons who under identical circumstances, may have paid them in the other counties of the state. In the case under consideration the statute imposes a burden upon owners of real property situated in cities of the second grade of the first class (Cleveland), not imposed upon the owners of real property, situated in other parts of the state. We think section 26, of Article XI, of the constitution, prohibits this being done. This conclusion renders a consideration of the other questions made upon the record unnecessary.

Judgment affirmed.  