
    Hubbard, as Treasurer of Cuyahoga County, v. Fitzsimmons.
    
      Erection of armory — Use of national guard, — General purpose oj state — Invalidity of act of April £7, 1898 — Constitutional Law.
    
    1. The erection of an armory for the use of the national guard is a general purpose of the state, and taxes to be devoted to that purpose, must, in obedience to the requirement of section 2, of article 12 of the Constitution, be levied by a uniform rule upon all the taxable property within the state.
    2. The act of April 27,1893, (LocalLaws, vol. 90, p. 115,) entitled “ an act to authorize the commissioners of any county containing a city of the first class, second grade, to borrow money and issue bonds therefor, for the purpose of building and furnishing a central armory in any such city for the use of the Ohio national guard, and procuring a site therefor ’ ’ is void, being an attempt to make such general purpose the subject of a local imposition.
    
      (Wasson et al. v. The Commissioners, 49 Ohio St., 622, followed and approved.)
    (Decided January 26, 1898.)
    Error to the Circuit Court of Cuyahoga county.
    The cause having been appealed to the circuit court and submitted on demurrer to the answer of the plaintiff in error, the demurrer was sustained and a final judgment rendered in favor of Fitzsimmons as prayed for in his petition.
    In his petition he alleges that he is a citizen and taxpayer of Cuyahoga county, that he brings the suit for himself and all other taxpayers of the county; that pursuant to the provisions of an act passed April 27, 1893, (Ohio Local Laws, volume 90, page 115) the commissioners of said county, which contains a city of the first class, second grade, issued bonds in the sum of $225,000, denominated Central Armory bonds, that for the purpose of paying the interest on said bonds and to raise a fund sufficient to redeem them at maturity, said commissioners have levied a tax upon all the property appearing on the duplicate of the county; that said bonds were issued for the purpose of building an armory in the city of Cleveland, in said county, for the use of the Ohio National Guard, which is an organization of the .military force of the state, organized and maintained for state purposes and not for a municipal purpose, and that said tax is levied upon the taxable property of Cuyahoga county alone, although the purpose is to provide a drill shed and a place for the storage of the arms and equipments of said state organization. Averring- that said act is unconstitutional and that the commissioners are without authority to levy the tax aforesaid, the plaintiff prayed that the treasurer be enjoined from its collection.
    The treasurer answered admitting that the Ohio National Guard is the active militia of the state, and averring that it is organized not only for state purposes but also for the purpose of protecting the persons and property of the citizens of the several counties upon call of the civil authorities, and that the object of Cuyahoga county in furnishing said armory was for the police purposes of said county and the city of Cleveland; that although the tax is levied upon the taxable property of Cuyahoga county alone, it was levied solely for the police purposes and to enable the sheriff and mayor to maintain order, and to suppress riots and tumultuous assemblies threatening the peace and safety of the persons and property of the citizens of said county; that while said guard is a state organization, it is under the command and control of the 'civil authorities of said city and county by whom it may be used for the purpose of maintaining order.
    For a further defense the treasurer alleged that under authority of the act aforesaid, the commissioners issued, and sold the bonds aforesaid and used the proceeds thereof in purchasing an eligible site causing the title thereto to be vested in Cuyahoga county and in the erection of an armory thereon in accordance with the provisions of said act, and that the purchase of said site and the erection of said armory were necessary to the preservation of the peace in said county.
    The circuit court sustained the demurrer to this answer upon the ground that the act referred to is unconstitutional.
    
      P. H. Kaiser; M. R. Dickey and Garfield & Garfield, for plaintiff in error.
    Brief of P. H. Kaiser and M. R. Dickey.
    
    It is claimed that this statute is enacted in violation of the Constitution. Revised Statutes of Ohio, section 3096.
    We maintain that the authority of the commissioners of the county, under the statute cited, is affirmatively conferred and given, by article 10, section 7, of the Constitution of the state of Ohio.
    
      Sessions v. Crunhilton et al., 20 Ohio St., 349; Miller & Gibson v. The State, 3 Ohio St., 475; Bloom v. Xenia, 32 Ohio St., 462.
    In the case at bar the authority has been prescribed by law. The Constitution vests the power in the commissioners. They have exercised their discretion. Cass v. Dillon, 2 Ohio St., 607.
    Under this provision of the Constitution, the discretion is vested in the commissioners of the county, and under the statute in controversy, the power, the discretion, vested by the Constitution in the commissioners, has been exercised.
    The facts set forth in the answer, are admitted by the demurrer. That this is local taxation, we admit. Was it for police purposes, under the averments of this answer? Holtz v. Commissioners of Henry County, 41 Ohio St., 423; Thorpe v. Rutland, etc. R. Co., 27 Vt., 149; Railway Co. v. Husen, 95 U. S., 465; Morgan v. Louisiana, 118 U. S., 455; 18 Am. & Eng. Ency. of Law, 739.
    Limited to the present purposes of this argument, we will admit, that this is a local law for local taxation, applying at the time it was passed, to Cuyahoga county only. In regard to section 3096 of the statutes, which we have cited, we believe there is no claim that it is unconstitutional.
    We think that the questions involved in regard to this law, are very properly stated and discussed in the case of Langdon et al. v. The Trustees of Columbia Township, Hamilton Co., Ohio, 14 Law Bull., 325; State ex rel. the Attorney General v. The City of Cincinnati, 20 Ohio St., 18; C. W. & Z. R. R. Co. v. Commissioners of Clinton Co., 1 Ohio St., 77.
    To us it appears clear that the act in question in this case is one specifically provided for and authorized by the Constitution of the state. But, if we are mistaken in this, we then affirm that it is not prohibited and is within the purview of the power vested in the legislature by virtue of the Constitution. Baker v. The City of Cincinnati, 11 Ohio St., 534; Lehman v. McBride, 15 Ohio St., 573.
    We are informed that this statute contravenes section 5, Article 9, of the Constitution.
    
      Section 3097, Revised Statutes of Ohio, provides for the enforcement and execution of the call so made in the statute already cited, by the sheriff, mayor or judge of any court in the county, and for the punishment for disobedience to such call by the officers or enlisted men of such organization.
    The fact that the people of the state generally, may receive incidental benefits from this armory, and the result of this local taxation, certainly does not make this law objectionable.
    Under the provision of the Constitution cited, if necessary for police purposes in the county, and proper legislation provided for the same, it would certainly be legitimate for the county commissioners to purchase arms, organize companies of men, provide an armory for the arms so purchased, and at the sole expense of the county, by local taxation, provide for the protection of the persons and property of citizens residing in the county; and it appears to us, that if the commissioners can obtain these arms, and the services of the National Guard, organized and resident within the county, at less expense, and thus secure the desired result, it cannot be urged as an objection, that the people of the state are saved some expense thereby.
    We think that the true rule is announced by this court, in the case of Wasson et al. v. Commissioners, 49 Ohio St., 622.
    The statute in controversy in this case, does prescribe by law, the power -which in this case has been exercised for police purposes, and how this can be claimed to be unconstitutional, we are unable to see, as the Constitution specifically provides for the exercise of the power thus prescribed by the general assembly. Cass Township v. Dillon, 16 Ohio St., 38; The State v. Kiesewetter, 37 Ohio St., 546.
    Brief of Garfield & Garfield, for plaintiff in error.
    This court is asked to declare the tax in question and thereby the bonds now in the hands of innocent buyers illegal, and to make the injunction for the payment of interest thereon perpetual on the ground that the enabling statute of April 27, 1893, 90 O. L., (Local) 115, is in conflict with the Constitution.
    We venture to call the attention of the court to certain principles of constitutional construction which have been repeatedly enunciated by this court. Lewis v. McElvaine, 16 Ohio, 347; Lehman v. McBride, 15 Ohio St., 573; Railroad v. Clinton Co., 1 Ohio St., 77; State v. Cincinnati, 20 Ohio St., 18; Walker v. City of Cincinnati, 21 Ohio St., 14; Fletcher v. Peck, 6 Cranch, 87.
    It has been contended in some quarters that the judicial branch of the government was endowed with almost Papal powers of declaring void the act of the legislative branch of the government,if it conflicted with natural justice or the spirit of the written Constitution. There is no question but that such a contention, if admitted at all by the courts, is only admitted in very isolated cases. The great burden of authority, being as set forth in State v. Cincinnati, 19 Ohio, 178; Cooley, Constitutional Limitations, p. 128.
    The courts have repeatedly stated that under the present Constitution, the supreme legislative power of the state is reposed in the legislature, subject only to the express limitations of the Cod stitution. Baker v. Cincinnati, 11 Ohio St., 534.
    
      The plaintiff in error therefore contends that the county may premise its argument on three unquestioned, well-settled principles of constitutional construction, to:wit:
    (1) That to authorize a court to interfere with a legislative act by declaring it unconstitutional, it must be so clearly and explicitly contrary to the letter of the Constitution as to be beyond a doubt.
    (2) That the courts may not adjudge a law unconstitutional because in their opinion it is contrary to the spirit and temper of the Constitution or to natural right and justice, and
    (3) That the legislature is supreme and absolute, subject only to the express limitations of the Constitution.
    Examining the statute in question, through the perspective of these rules of construction, the court is asked to declare it unconstitutional on the ground that it is in violation and contravention of the following clauses of the Constitution, to-wit: Article IX, section 5; Article X, section?; Article XII, section 2.
    We submit that by the act in question (90 O. L. (Local) 115), the legislature is but giving effect to the Constitution by providing for the housing of the arms. It is to be borne in mind that counties and townships are but quasi-corporations, ministerial divisions of the state and endowed with public and sovereign powers. They are mere administrative circumscriptions, and as such, within the complete control of the legislature. They possess no vested rights and are but convenient agencies for accomplishing the ends of government. In endowing them with authority to erect an armory, the legislature has done just what re does when it authorizes the construction of roads, bridges, schoolhouses, drains, jails and courthouses for the common welfare. The act in question is in the nature of a delegation of power by the legislature leaving the acceptance thereof and the means to be employed to the discretion of the county. See volume 2, Debates, 747, 867, 868, 869. Hence, we contend that' the section limiting the power of local taxation to police purposes was only intended to exclude taxation for purposes of internal improvements, and is the only construction which gives point and meaning to Article X, section 7. Burgess on Political Science and Constitution, 1 Law, volume 2, p. 136; New York v. Miln, 11 Peters, 102; Barbier v. Connelly, 113 U. S., 27; Blackstone, Book 4, p. 161; Cooley, Constitutional Limitations, 572; Dillon, Mun. Corp., volume 1, section 54, note (1) p. 95, Lakeview v. Rose Hill Cemetery, 70 Ill., 192; State v. Noyes, 47 Me., 189; Tiedeman in Police Power, 1; Thorps v. Rutland, 27 Vt., 150; Boston Beer Co. v. Mass., 97 U. S., 25.
    We submit, in the light of the above rules of construction, the debates of the Constitutional Convention and the definitions of “police power,” that the erection of an armory is within the police power of the state, and included as a police purpose reposed in the counties by Article X, section 7.
    The act in question is further held to be in violation of Article XII, section 2, of the Constitution.
    See Debates of the Convention, volume 1, resolutions on pages 106, 108 and 298. The reports of the standing committee on Finance and Taxation, p. 513, and minority report. Note zoell volume 2, pages 34, 35 and 36 as to the intention to assess all property by uniform rule. See amendment of Dorsey, p. 36, which is an expression of the object of the above section and the real sense of the convention as manifested by the discussion. Also remarks of Humphreville, p. 37; Dorsey, pp. 38 and 39; Humphreville, pp. 41, 54, 55 and 56; Archbold p. 56; Loudon, p. 59.
    The same sentiment appears relative to section 4, article 12, see p. 116. This section finally was merged in article 12, section 2. See resolutions, 128, 129, 130; especially p. 131, petition from Hamilton County, p. 754; Mr. Gregg’s remarks, p. 755; resolutions, p. 831. On pages 818 and 819, the members gave an excellent idea of what the convention had in mind when it enacted this section. Note memorial introduced, pp. 151 and 192. Note also pp. 651, 755, 826, 831, 331, 732.
    The debates are to control the meaning of the Constitution in matters of doubt. Cass v. Dillon, 2 Ohio St., 607; State v. Foraker, 46 Ohio St., 677.
    And the evil intended to be remedied by the Constitution is to be taken into consideration in determining- its meaning. Cleveland v. Wick, 18 Ohio St., 303.
    From the above debates it would seem clearly apparent-that the convention, when it framed this section, never entertained the view contended for by the attorneys for the defendant in error, and that to so interpret the section, is to do violence to its true meaning; to read into it a meaning no suspicion of which appear's anywhere in the debates. The various decisions of this court, on this section are not inconsistent, but represent a growth, and development of the section under the hands of the court is interesting. Exchange Bank v. Hines, 3 Ohio St., 1.
    The legislature, in the absence of express constitutional limitation, is the sole judge of the apportionment of taxation as well as the amount thereof. Moreover, and. we believe this goes to the gist of the ease, whenever the purpose authorized is a mixed one, partly state, partly local, partly appertaining to the well-being of the state and partly appertaining to the specific community benefited, the legislature is the sole judge of the expediency or propriety of the tax. Walker v. City of Cincinnati, 21 Ohio St., 14; Railroad v. Clinton Co., 1 Ohio St., 77; Bowles v. State, 37 Ohio St., 35; Schenley v. Allegheny, 1 Casey, 130; Sharpless v. Philadelphia, 21 Pa. St., 147; Cooley, Const. Lim., 598; Peoples. Supervisors, 20 N. Y., 252; People v. Lawrence, 41 N. Y., 137; Litchfield v. Vernon, 41 N. Y., 123.
    It is this general principle - which sustained the issuance of the railroad aid bonds by local civil divisions in nearly all the states and also by the federal courts. Olcott v. Supervisors, 16 Wall., 678.
    And we find this court reaching a conclusion similar to that claimed by the plaintiff in error in this action in the so-called bounty cases. Anderson v. Harris, 17 Ohio St., 608; Cline v. Wilkinson Township, 20 Ohio St., 288; Bates v. Richland Township, 20 Ohio St., 370; Freeland v. Hastings, 10 Allen, 570; Corner v. Folsom, 13 Minn., 219; Veazie v. China, 50 Me., 518.
    
      White, Johnson, McCaslin & Cannon, for defendant in error.
    We claim the statute is in violation of the following provisions of the Constitution: Article I, section 19; Article IX, section 5; Article X, section 7; Article XII, section 2. And, if the argument of plaintiff in error is correct, it would also be in violation of Article II, section 26.
    
      If the sections, upon which we rely to sustain our contention that the statute in question is uncontitutional, are examined in connection with . the statute, it will be seen that our claim is that Article X,. section 7, authorizes giving counties power to impose a tax only for local police purposes; that Article IX, section 5, requires the state, at the expense of the state, to provide for the keeping of the arms of the state, in the custody of the state; that Article XII, section 2, requires uniformity of taxation in the taxing district; that the taxing district for the expense of a state institution is the state at large; and that part of this expense cannot be assessed upon the state at large, including a particular county, and another part upon that particular county, and that doing this to relieve other counties from the burden is also a taking of the property of that county for the private benefit of the citizens of the other counties of the state, and is also a violation of Article I, section 19. Analyzing this claim yet further, it will be found that our position depends upon the claim that the state militia and the national guard are a state force, created for state purposes, governed by the state at large, performing duties which the state, as a whole owes to ibs citizens, and that, hence, the expense of the militia or national guard should be paid for wholly by a state tax, and not by a tax imposed upon one county of the state.
    We suppose that about certain rules regulating taxation there can be little question, at least in Ohio. Taylor, McBean & Co. v. Chandler, 9Heisk., 349; Cooley on Taxation, 141-2; Wasson v. Commissioners, 49 Ohio St., 622; State ex rel. Long v. Brinkman., 7 Ohio C. C. Rep., 165; Daniel v. Columbus, 8 O. C. C. Rep., 642; Wilder v. Daniels, 53 Ohio St., 658; State ex rel. v. Kreighbaum, 9 O. C. C. Rep., 619; State ex rel. v. Commissioners, 54 Ohio St., 615.
   Shauck, J.

It is not supposed that the commissioners of Cuyahoga county were without authority to levy the tax in question, if the act of April 27, 1893, is constitutional, nor that such authority is otherwise conferred upon them.

It was settled in Wasson et al. v. The Commissioners, 49 Ohio St., 622, that section 2, of article XII of the Constitution, requires that “all taxes for general revenue for the state must be levied by a uniform rule upon all the taxable property within the state. ” No attempt will be made to add to the clearness or force of the very satisfactory reasons there given for that conclusion.

It remains to inquire whether the purpose to be accomplished by the taxation in question is local to Cuyahoga county or general to the state. That it is for the purchase of a site and the erection thereon of an armory for the use of the national guard, the active militia of the state, is averred in. the petition, admitted in the answer, and required by the act. The character of the guard and the purposes of its organization are not to be determined from evidence upon issues joined in the pleadings, but as matters of law from the constitutional and statutory provisions by which it is created and controlled.

It is ordained in section 10, article III, of the Constitution, that the governor shall be commander-in-chief of the military and naval forces of the state. The ninth article of the Constitution is devoted to the subject of the militia of the state, and the fifth section of that article imposes upon the general assembly the definite duty that it “shall provide, by law, for the protection and safe keeping of the public arms.”

Title XV. of the Revised Statutes, provides for the enrollment, organization, government, equipment and pay of the guard and the care of the public arms. The guard may be ordered into active service by the commander-in-chief, it is subject to his orders, and it is provided that “the adjutant general shall, subject to the order of the governor, have control of all public arms, ammunition, accoutrements, etc., belonging to the state. ’ ’ The character of the militia as a state organization is thus definitely fixed. It is not at all affected by the fact that it may sometimes be called upon to aid the civil authorities in the preservation of public order. That duty is as clearly due to the civil authorities of Lorain county as to those of Cuyahoga. It is equally due from the entire guard to the proper civil officers of every county and municipality of the state. That some incidental benefit would result to Cuyahoga county from the erection of a public building in its chief city is doubtless true. But any view which would recognize such incidental benefit as a proper basis for a local imposition, would equally justify a tax on the property of Franklin county for the erection of a state building for the use of this court.

Nor is this question in any way affected by the fact that the legal title to the armory is in Cuyahoga county. The character of the imposition is determined by the fact that the armory is to be used for the accomplishment of duties which the Constitution charges upon the general assembly and officers of the state.

The validity of a similar act was denied by the circuit court in Daniel v. The City of Columbus, 8 C. C. Rep., 642, and its judgment was affirmed by this court for reasons given in the opinion of the circuit court, 53 Ohio St., 658. It was there said: “The expenses incident to the performance of a duty of this general character cannot be made the subject of a local imposition. * * * The purpose to be accomplished by this expenditure is common to the state at large; and the taxes by which it is to be met, must, in obedience to the requirement of section 2, of article XII, of the constitution, be levied by a uniform rule upon all the taxable property within the state.”

The same conclusion was reached by the circuit court of Stark county in State ex rel. v. Kriegbaum et al., 9 C. C. Rep., 619, and its judgment was unanimously affirmed by this court. 54 Ohio St., 615.

The case presents no reason why the purchaser of these bonds should be exempt from the familiar and salutary rule that one who relies upon the act of a public officer must take notice of the limits to his authority. The courts of this state have never encouraged confidence in the validity of acts of this character. Not only so, but in a well considered case decided at the February term, 1893, the circuit court of Putpam county had held a similar act void. State ex rel. Long v. Brinkman et al., 7 C. C. Rep., 165.

The answer in this case has received the particular attention which counsel invited. Its averments contrary to the Constitution and the laws are unavailing to change the legal character of the guard; and the suggestions of local advantages to result from the erection of the armory had been ably presented in tbe briefs of counsel in tbe former cases.

Judgment affirmed.

Minshall, J., dissents.  