
    The State ex rel. v. Smith et al.
    
      Constitutional Law — Special Legislation.
    
    A statute applicable only to a particular city in the grade and class to which it belongs, and which cannot by reason of its provisions, be adapted to any other city in the same grade and class, is special in its nature and not general and where corporate power is conferred thereby, is invalid.
    (Decided March 12, 1890.)
    
      Error to the Circuit Court of Hamilton county.
    On March 13, 1890, an act was passed by the general assembly of the state, creating for cities of the first grade of the first class “ a board of public improvements,” and abolishing the “ board of public affairs,” the duties of the latter board being conferred on the new board, which was declared to be “ in all respects the successors of said board of public affairs.” 87 Ohio Laws, 62. Under this law the relators, Reemelin, Donham and Montgomery, together with the defendants, Kerper and Ellison, were appointed such board for the city of Cincinnati by the governor of the state, on whom the power of appointment was conferred by the statute. Afterwards at a called session of the legislature, this board was abolished by an act passed October 24, 1890, and a new one, called “ the board of city affairs ” was created for cities of the same grade and class as the former one. It was made to consist of four members to be appointed by the mayor, “ two of whom,” in the language of the law, “ shall be members of one of the leading political parties, and two of whom shall be members of the other leading party.” Each member was required to give bond for the faithful performance of his duty in the sum of $50,000, which was required to be approved by the judges of the superior court and city solicitor of said city.
    Under this statute the defendants were appointed such board by the mayor of Cincinnati in accordance with its provisions; and, against the protest and remonstrance of the relators, took possession of the office and place of business of the board of public improvements and ousted them therefrom, and entered upon and have continued to discharge the duties conferred on them by the act creating the board of city affairs. The suit below was then commenced in the circuit court by the relators to determine the right of the defendants to act as such board, and to cause themselves to be re-inducted as members of the board of public improvements, claiming that the statute of October 24, 1890, is unconstitutional on the ground that it is a special act, conferring corporate power; and, also, on the ground, that the provision requiring the members of the board to be chosen from the two leading political parties, is a proscription of all other citizens on account of their political opinions.
    The circuit court dismissed the petition, and this suit is brought to reverse the judgment of the circuit court.
    
      Follett Kelley and Peek Shaffer, for plaintiff in error.
    The act is special and confers corporate power.
    1. From the message of the governor to the special session of the legislature 'when convened, expressive of the purpose for which the special session was called. In that message he states, “ The extraordinary power of calling a special session of your honorable body has been invoked on account of the deplorable condition of public affairs in the city of Cincinnati.” It was to legislate for Cincinnati that the legislature was called in session, and no city but Cincinnati was contemplated in the measure referred to.
    2. An inspection of the act itself conclusively shows that it is a special act, and was intended only for Cincinnati.
    While the title of the act and the beginning of section 2205 are general in form, said section provides as follows: “ The present Board of Public Improvments of said city is hereby abolished, and the mayor of said city shall, within ten days after taking effect of this act, appoint four members to serve as a Board of City Affairs, until the qualification and organization of the elected board herein provided for.” And in section 2206, relating to the bond to be given by the members of said board, said act provides as follows: “ Such bond shall be approved by the judge of the superior court and city solicitor of said city.”
    At the time of the passage of this act, Cincinnati was the only city in the state of Ohio having a Board of Public Improvements. At that time also Cincinnati was the only city in the state of Ohio of any grade or class having a superior court. Cincinnati was also at that time the only city in the state of the first grade, first class, and no other city in the state could, under the provisions of the statute in force, be raised to a city of the first grade, first class, within the ten days from the passage of the act, within which the mayor was required to make the appointments of the members of the board then attempted to be created, to wit, the Board of City Affairs. The act also specifies, “ The present Board of Public Improvments of said city is hereby abolished.” Section 2208. And again, in section 2231, the language is, “ The present Board of Public Improvments.” The manifest intent running throughout the act is that it shall apply only to the city of Cincinnati, and said city is as clearly designated as though it had been named. We think the case of the State v. Pugh, 43 Ohio St. 98, is decisive of this case, both upon the proposition that it is a special act, and that it confers corporate powers. The prior decisions of this court, cited and commented upon in announcing the opinion in that case, also clearly sustain our position, and we think the law, as applied in that case, is thoroughly settled in -this state. The act of October 24,1890, is so very similar to the act declared void in State v. Pugh, that it would seem that the draughtsman of the former consciously imitated the latter — that it comes within the rule there laid down by Owen, C. J., seems too clear for controversy.
    The portions of this act referred to make it so clear “ that no other city of the state can in the future come within its operation,” that we forbear further comment. State v. Pugh and numerous other cases therein referred to, are equally decisive to the effect that this is an act conferring corporate power. If the creating of a governing body of a large corporation with power to collect and expend money, and to make contracts in behalf of such corporation, is not conferring corporate power, that phrase has very little meaning. See also State v. Anderson, 44 Ohio St. 248, and State v. Hawkins, 44 Ohio St. 98.
    
      Horstman, Galvin, Whittaker $ Van Horne, city solicitors, and Prausin Wulsin, for defendants in error.
    I. Our adversaries claim this is a special act.
    
      First. From the message of the governor calling the legislature together, which they cite at some length. If the court can consider at all tbe governor’s message in this connection, yet said message, or even matters far more serious and more directly in point than said message, are not fatal to the act. State v. Pugh, 43 Ohio St. 112. This case we consider a complete answer to our adversaries’ first claim. In view of the circumstances under which the legislature was called together, and the state of affairs in Cincinnati at that time, the words of Judge Owen, spoken years before, seem at this time almost prophetic.
    
      Secondly. Our adversaries claim that the act itself shows conclusive!}*- it was intended only for Cincinnati. Admitting all that they claim, viz.: that at the time of the passage of the act Cincinnati was the only city having a board of ' public improvements or a superior court, that it was the only city of the first grade of the first class in the state, and that no other city could be raised to that grade or class within the ten days after the passage of the act, when the mayor was required to make the appointments, does it follow that this is special legislation? We claim it does not. The rule as laid down in State v. Pugh is that if any other city may in the future, by virtue of its increase in population, and the action of its municipal authorities, ripen into a city of the same class and grade, and come within the operation of the act, it is still a law of a general nature and is not invalid even if it confers corporate powers. Again it is well settled that it is not the form the statute is made to assume, but its operation and effect, which is to determine its constitutionality. State v. Judges, 21 Ohio St. 211; State v. Hipp, 38 Ohio St. 199.
    These provisions as to the appointment of a board we claim are merely temporary and do not form the real basis of the act; they are merely the means imposed by the legislature, temporarily to set the machinery in motion. The act itself, after the machinery has once been started, provides for its own continuance. Any other city in the future advancing from a city of the second grade of the first class to a city of tbe first grade of the first class would find all provisions for its government by a board of city affairs fully set forth in this law, the election would be provided for by this law of such a board, and all such city would have to do would be to proceed under it. . The case of this law is materially different from the law under consideration in the case of State v. Pugh. In that case, the basis, the foundation, if we can so express it, of the whole act, was the appointment of a board of trustees to re-district the city. Until such action was taken, and such re-districting made, there could be no procedure of any kind under the law, for it provided for an entirely different method of electing council, and the election of other officers, from what was in force at the time; any action by any city under the law necessarily presupposed the re-districting of the city by a board of trustees of sinking fund, heretofore appointed under an act passed April 16, 1888; it is upon this consideration that the case turns.
    In regard to the provision that the bond shall be appx'oved by the judge of the sxxperior court and city solicitor of said city, axxd the claixn made, that at the time Cincinnati was the only city having a superior court, the Revised Statutes, sec. 1738, provide how all official bonds shall be approved, so that if any city of the first grade of the first class should have no superior court, there is provisioxx made by law as to how the official bonds of the members of the board of city affairs shall be approved. The provision in the act of October 24, 1890, that said boxxds shall be approved by the judge of the superior court, etc., necessarily meaxxs that the bonds of the members of the board of city affairs shall be approved in the manner provided by law, except that ixx such cities having a superior court, such boxxds shall be approved by the superior court; in other words the act does not legislate simply for cities of the first gx-ade of the first class having a superior court, but legislates for cities of the first grade of the first class, with the special exception that iix such cities having a superior court, the superior court shall approve the bond instead of the mayor orxly.
    In regard-to the provision that the mayor of said city shall within ten days after the takixxg effect of the act appoint four members, we submit that this provision is directory only. If the mayor failed within ten days to appoint, he certainly could appoint after ten days, and if he failed to appoint at all, and no proceeding in mandamus was instituted to compel him to appoint, the people would nevertheless elect members of the Board of City Affairs at the next April election.
   By the Court.

The act of October 24, 1890, creating a board of city affairs for cities of the first grade of the first class, is, in the opinion of a majority of the court, a special one applicable only to the city of Cincinnati, and could not, without a change in legislation, apply to any other city in the state; for the reason that the statute requires the bond of each member of the board to be approved by the judges of the superior court. The Superior Court of Cincinnati was created by a special act of the legislature passed in 1854. It was created specially for that city; and the provisions of the act, in their special form, were carried into and made a part of the Revised Statutes, S. & C. 388; § 482 Revised Statutes. No other city in the state has, nor can .have under existing legislation, a superior court. So that Cincinnati is the only city of the first grade of the first class, or of any other grade or class, that can adapt itself to the provisions of the act creating this board; and is, therefore, as certainly identified as the city, and the only city, for which the statute was adopted, as if it had been designated by name; and the act is, therefore, a special act. State v. Pugh, 43 Ohio St. 98. But it is claimed that the special provision for the approval of the bonds may be disregarded, and the general statute upon the subject, § 1738, Revised Statutes, adopted. But this is contrary to the established rule of construction, that the special provisions of a statute must prevail over general ones on the same subject. Nor would this obviate the objection, that this special provision identifies the city for which the legislation was intended. It is also argued that if this act be special for the reason stated, then the act creating the Board of Public Improvements is, for a similar reason, a special one, because it was there provided that the Board of Public Improvements should be the successor of the Board of Public Affairs, abolished by the act creating the Board of Public Improvements, and that Cincinnati was the only city which, at that time, had Such a board as the one abolished. This is true; but it was not the oifly city, that, without any change in legislation, could have had a Board of Public Affairs. Any city with a population of 200,000 and over, is eligible to be a city of the first grade of the first class, and may become such by taking the steps provided by statute. State v. Wall et al., 47 Ohio St. 499. Thus it will he observed that Cleveland could have entered the grade and class to which Cincinnati belongs, at any time, by complying with the provisions of the statute on the subject. And it is the possibility that other cities may enter a certain grade of a class, and not the certainty that they will, that gives to a law creating the grade a general character. State v. City of Toledo, decided at the present term.

And that the act attempts to confer corporate power, is, as'we think, fully settled by the previous decisions of this court. State v. Anderson, 44 Ohio St. 247. It confers on the city power to have a certain board, as part of its municipal government, that is itself clothed with the most extensive and important powers. Section 2231, Revised Statutes, as amended by the act of October 24,1890.

The act then being a special one, conferring corporate power is, as we think, clearly within the provision of the constitution inhibiting such legislation, and must be declared invalid. And this we do with a full knowledge of the rule on the subject, that no act should be declared invalid by the courts, unless clearly convinced that it is in conflict with the constitution.

It must be conceded that the method of classifying cities for the purpose of legislation, has been carried to the very verge of constitutional authority. Many conscientious minds believe that it has been exceeded. We have heretofore expressed our doubts upon the subject, but feel bound by the previous decisions of the court, (State v. Wall supra,) and 'are disposed to sustain any laws falling within the principle of those decisions; but are unwilling to go beyond them, and sanction legislation conferring corporate power, that is plainly and palpably special in character.

We see no other valid objection to the law. And as the act itself is invalid, the repealing clause must also be held inoperative, as we cannot suppose that the legislature would have repealed the act creating the Board of City Improvements, without providing any substitute therefor.

Judgment reversed, and judgment of ouster and induction.

Williams, C. J., and Dickman, J., dissent.  