
    Daniel Foster v. The Commissioners of Wood County.
    The act of the general assembly “ authorizing county commissioners to grant further time for the completion of free turnpike roads, and paying for the same,” passed May 1, 1854, is not repugnant to the present constitution.
    Deserved in the district court of Wood county.
    This case was reserved in the district court of Wood county for decision in this court, and is presented on the following agreed statement of facts : “ It is agreed, that on the 23d day of March, a. d. 1850, the legislature of Ohio passed an act, 48 Ohio L. L. 183, entitled an act to incorporate the Wood County and Western Deserve Free Turnpike Doad, which said act in detail, is referred to and made a part of thi3 agreed statement of facts. It is also agreed, that at the time of the passage of said act, and from that time to the present, Daniel Foster, the plaintiff, was, and is the owner, of ¡the southwest quarter of section twelve (12), in township sis (6), range twelve (12), in Wood county, Ohio, being the land in the petition described. It is further agreed, that said free turnpike road was laid out, located *and went into operation, and that taxes were collected under the act of incorporation, during the existence of said charter, from all lands subject thereto. It is also agreed, that said land of said Foster, lies within one-half mile of the line of said road, and was subject to tax therefor under the charter thereof, and that the same was collected and paid during the existence of the original charter. It is further agreed, that such charter, or act, and all power, right, and authority, to levy a tax under it, expired at and after the March session, A. d. 1854, of the county commissioners of Wood county, Ohio. It is further agreed, that on the 1st day of May, a. d. 1854,' the legislature of Ohio passed an act, entitled 1 an act authorizing county commissioners to grant further time for the completion of free turnpike roads and paying for the same,’ which said act is found in vol. 52, page 99, of the general and local laws of said state, and, in detail, is referred to and made a part of this agreed statement of facts. It is further agreed, that at the June session, a. d. 1855, of the county commissioners of Wood county, Ohio, the said commissioners, the charter of said free turnpike road having expired, extended the same for the period of four years from and after that time, and ordered the special tax for the year 1855 to be placed on the county duplicate by the auditor of said county, and collected in accordance as the same is provided to be levied by the original act or charter of said road. It is further admitted, that the county auditor will place said tax on the duplicate, and collect the same, unless it be restrained by injunction, and that there is no law authorizing the levy and collection of said tax except the act of May 1, 1854, vol. 52, page 99, laws of Ohio above referred to. If the court under this state of facts are of opinion that this act of May 1, 1854, is repugnant to the present constitution of Ohio, then judgment is to be rendered for the plaintiff, otherwise for the defendants.”
    
      * James Murray, for plaintiff, argued the following points at length:
    The levy of eight cents per acre, on all lands within a given distance on each side of this road, is not such an assessment as was authorized under ^either the constitution of 1802, or that of 1851,' but is a special tax, and the exercise of the power to levy it is in violation of the present constitution and void.
    The levy is not an assessment, but a special tax. Reeves v. Treasurer of Wood county, 8 Ohio St. 338, 344; Hill v. Higdon, 5 Ohio St. 243; People v. Mayor of Brooklyn, 4 Comst. 424; Ridenour v. Saffin, 1 Handy, S. O. 464; In the matter of the Mayor of New York, etc., 11 Johns. 77; Mayor of New York v. Livingston, 8 Wend. 85; Thomas v. Leland, 24 Wend. 65; Bleecker v. Ballou, 3 Wend. 263; Sharp v. Spier, 4 Hill, 76; State v. City of Newark, 1 Dutcher, 399; City of Boston v. Shaw, 2 Met. 130; Wright v. City of Boston, 9 Cush. 233; Downer v. City of Boston, 7 Cush. 277; Norwich v. County Comm’rs, 13 Pick. 60; People v. Brooklyn, 23 Barb, 166; 24 Mo. 20; McMasters v. Commonwealth, 3 Watts, 292; Soady v. Wilson, 3 Adol. & Ell. 248; Vin. Abr. title Sewers; Comyn’s Dig. title Sewers; Strange, 11-47; 2 Term, 368; 3 Maule & Selwyn, 447, 1 Barn. & Cress. 477; 1 Barn. & Ald. 21; 4 N. & M. 777; 3 Car. & Pul. 71.
    In a word, the unbroken current of authority is, that to authorize an assessment against a person or property, such person or property must be the subject of some benefit or advantage from the improvement to pay. for which the assessment is made, and that the person or property assessed, is only liable to pay in proportion to the benefit or advantage received. Now if such is the rule, the special tax authorized to be levied by the county commissioners in the case at bar, can in no event be regarded as an assessment — it is levied absolutely— according to quantity — on all land within a certain distance on each side of the road — it is levied without regard to whether any benefit is conferred, and is levied ^without reference to the extent or amount of benefit (if any) that may be conferred.
    The authority attempted to be conferred on the county commissioners, to revive the charters of expiring free turnpike road companies, together with their right of special taxation, is repugnant to sec. 1, art. 13, constitution of Ohio, which provides, “ That the general assembly shall pass no special act conferring corporate power.”
    
      8. Jefferson, for defendants. '
   Gholson, J.

The question reserved in this case arises upon an agreed statement of facts, and is stated to be, whether the act of the general assembly, “ authorizing county commissioners to grant further time for the completion of free turnpike roads, and paying for th¿ same,” passed May 1, 1854, “is an unconstitutional and invalid act, and repugnant , to the j>resent constitution of Ohio.” The general and abstract question, whether an act of the legislature be unconstitutional, can not with propriety be presented to a court. 'The question must be, whether the act furnishes the rule to govern the particular case. What, then, is the effect and operation of the act upon the particular case ? and does such effect and operation conflict with any provision of the constitution ?

It appears that by acts referred to in the agreed statement, and particularly an act passed the 23d of March, 1850, “ to incorporate the Wood County and Western Reserve Free Turnpike Company,” that the general assembly, for the purpose of having constructed a road in a particular locality, appointed certain persons commissioners, and that those commissioners and their successors were made a corporation, under the style mentioned, for the purposes of the act. The form of things and the name of things are not often material, and certainly ought not to be regarded in a matter so serious as a question of refusing obedience to an enactment of the legislature. In form *and name the enactment looks like the creation of an ordinary turnpike company, for the benefit of a body of corporators, and in this view might lead to an application to it of principles only applicable to private corporations. When, however, the substance is examined, it appears to be a public corporation, and really only a part of the machinery of the state for the construction and repair of highways; and there is properly no personal and private interest. The officers of the corporation are really county or township officers discharging duties usually discharged by such officers — the construction and repair of a highway for the free use of the public. It is, in terms and in fact, to be a free turnpike road. The only personal interest is that which those who live on land abutting upon a public highway have, as compared with other citizens of the county or state.

It is such interest which sustains the assessment as distinguished from a tax. The same principle is applied in charging upon cities and towns the repair of the highways which pass through them, and in allowing an assessment by the front foot on the real estate abutting upon the highways. The only difference between such cases and the present is, that in the latter the assessment is by the acre. It has the principle of benefit, which is sufficient when ascertained and fixed by law in reference to a particular locality, as compared with other localities, and need not be limited to particular pieces of property as compared with other pieces. If the legislature directs that upon a road being constructed in a particular section of the state, there shall be an assessment on account of the benefit to the locality, of a certain rate per acre, or a certain per cent, on the valuation, this would be equally an assessment as if a commission had been established to ascertain the amount of benefit which each individual owner, as compared with others, would receive. In this view we see no ground to sustain the objection, that what the legislature directed in this case was not an assessment.

*The other ground relied on is, that the act is a special one, conferring corporate powers, and repugnant to the first section of the thirteenth article of the constitution. We do not think it necessary to follow the counsel for the plaintiff in his elaborate argument as to the true meaning of that section of the constitution. We prefer to take the question negatively, and say that this particular case is not embraced, without attempting to lay down any rule as to other cases. We regard this case as somewhat anomalous. We need not decide whether such a corporation could be formed, or its powers as a corporation renewed by a special act, or whether the act passed is to be regarded as a general law or a special act; for we think that the particular thing authorized in this case can, in no proper sense, be deemed a corporate power within the meaning of that section of the constitution.

The public road in a particular locality, for the construction of which a provision had been made before the adoption of the constitution, remained unfinished and unpaid for. It was a duty resting on the government to dispose of this road. For the purpose of its completion, or the payment for labor expended, a law is passed directing the county commissioners to assess for a limited period of years the property immediately benefited. The amount of money so raised, is to be expended under the direction of those having charge of the road. Now, in all this, we are not able to say, certainly not with that clearness and freedom from doubt which such a case requires, that the legislature exceeded its powers and violated the constitution.

The judgment must be for the defendants, that the injunction be dissolved and the bill dismissed.

Brinkerhoef, C. J., and Scott, Sutlife, and Peck, JJ., concurred.  