
    The State v. Powers.
    1. Common school districts and hoards of education are not corporations within the meaning of section 1 of article 13 of the constitution.
    2. Under section 26, article 2, and section 2, article 6 of the constitution, laws regulating the organization and management of common schools must have a uniform operation throughout the state.
    Quo Warranto.
    The defendants, having assumed to act as the board of education of the New London school district, New London township, Huron county, are called, upon in this proceeding by the state, on relation of the' attorney-general, to show by what title or warrant they assume to do so. They answer by showing an election under the act of the general assembly of March 31, 1879, entitled “ an act to consolidate the territory comprising the township of New London, in Huron county, Ohio, into a special school district.”
    The provisions of the statute are as follows :
    “ Section 1. Be it enacted by the general assembly of the state of Ohio : That upon a vote as hereinafter provided for, the territory comprising the township of New London, in Huron county, Ohio, now consisting of the New London township school district, and the New London village school district, be and the same is hereby organized into a special school district, to be known as the New London school district.
    “ Sec. 2. The trustees of said township shall, at least five days prior to the annual election occurring on the first Monday of April, a. d. 1879, cause written or printed notices to the qualified electors of said township, of an election to be held at the same time and place of said annual election, to determine the question of the proposed consolidation, to be posted in at least five conspicuous places in said township, and at such election the said trustees shall provide a separate box to receive the ballots cast. The electors of said township in favor of such consolidation shall have written or printed upon their ballots the words ‘Special school district — Yes;’ and those opposed thereto the words ‘Special school district — No;’ and the majority of the ballots cast shall determine the question of such consolidation.
    “ Sec; 3. The board of education of such special school district shall consist of six members, who shall be apportioned to the same as follows; Two shall be residents of the territory now comprising the said village district, two shall be residents of the territory'now comprising the township district, and two shall be chosen from the territory of the township at large; and said board of education shall be elected in the manner now' provided by law for the election of boards of education in village districts, except that on the first Monday following the affirmative determination of the question of the proposed consolidation, the board of education of each of said districts shall meet, and each choose three persons to serve as members of the board of education of such special district, as follows; Two persons, resident electors of their respective districts, one to serve for one year and one to serve for three years ; and one person, a resident elector of said township at large, to serve for two years ; and the six so chosen shall constitute the board of education of such special district, and shall serve until their successors are elected and qualified.
    
      “ Sec. 4:. The said special district shall be governed and controlled in every manner by the laws of Ohio now in force relating to village districts; and the board of education may appoint a board of examiners, in the manner now provided by law for city and village districts having a population of twenty-five hundred inhabitants; provided, however, that no change shall be made in any of the joint sub-districts of said township, except in the manner now provided by law; but in such of ■ said joint sub-districts where the school buildings are now situated in said township, no local director shall be elected, but the same shall be under the supervision of the board of education of said special district.
    “ Sec. 5. All school funds on hand belonging to either of said school districts shall be transferred to the treasurer of said special district, and all school property, both real and personal, belonging to either of said school districts, shall become the property of said special district; provided, however, that if the school funds on hand of either of said districts should exceed that in the other, the amount necessary to make them equal shall be raised by taxation in the district so deficient.
    “ Sec. 6. This act shall take effect and be in force from and after its passage.”
    The relator claims that this statute is unconstitutional; and upon this claim the case depends.
    
      S. Burke and J. H. Dickson, for plaintiff:
    I. The act under consideration is unconstitutional in that it conflicts .with the 26th section of article 2 of the constitution, which reads: “ All laws of a general nature shall have a uniform operation throughout the state.” The school laws are general throughout the state and exist in their application to all the people in every locality. It divides the state into the smallest political divisions known to the law. Therefore we say, any law that affects the rights of any portion of the people under the school laws, being general in its nature, must, by the supreme law of the land, be uniform in its operations. The subject-matter of the law of which we complain is the schools ; it is the school concerning which this law was passed, the only exclusively general subject concerning all the people in every department and walk in life, touching every individual in the state of which the legislature could take cognizance by legal enactment. By the act complained of we have one law for the election of school boards for all the state except New London township, and another and different method for that township. No special need is shown or claimed for this act. Indeed, the friends of the measure claim they have got a better thing than the balance of the state. That New London is specially favored. No local condition or necessity is claimed to exist there as a reason for the act. So that we say no argument in favor of this act can be drawn from the decision in McGill v. State, 34 O. St. 228.
    II. The act is in contravention of section 1, article 13 of the constitution, which reads: “ The general assembly shall pass no special act conferring corporate power.” It is conceded that this act is special. Does it confer corporate powers % We claim that it does. And as to what is a corporation, see Dartmouth College v. Woodward, 4 Wheat. 636; People v. Assessors, 1 Hill, 620; 1 Dillon on Municipal Corp. 91.
    Here is a grant of the right- of eminent domain and the right of taxation extended by this act over the entire township. So we say that thereby it did confer additional powers upon an existing corporation, which this court, in 20 Ohio St. 36, has held cannot be done. But further, the act creates a corporation. It creates, in a most novel and singular manner, a new school board. In all the state there is none other like it. It is apparent upon the face of the act that it was created for the purpose of retaining political power in the village. And having created it, it provided that the said special district shail be governed and controlled in every manner by the laws of Ohio now in force relating to village districts.
    By the general laws, section 3971 of Rev. Stat., school boards are corporations. By this special act this school board, consisting of the respondents, are made a corporation likewise, and all the corporate power and authority conferred by law is given them. The legislature, by this special act, created a new corporation, which the constitution forbade it to do.
    In the following cases special acts were declared unconstitutional : State v. Cincinnati, 20 Ohio St. 18; State v. Mitchell, 31 Ohio St. 592; State v. Davis, 23 Ohio St. 434.
    
      It. P. Panney and PenneweTl <& Lamson, for defendants :
    We concede that the act does not have a uniform operation throughout the state, but we deny that it is a law of a general nature. The provisions of the law in question show that it is not, and that it was not designed to be general in its nature. It will not be questioned but that the legislature, under our constitution, has the right to pass local and special acts, except upon certain specified subjects. The grant of power to the legislative branch of our state government is ample for this; and it has been exercised since the present constitution has been in force, as well as before. The very provision of the constitution, that loca? and special laws on certain subjects shall not be passed, recognizes the right of the legislature to pass such laws on all subjects but the .forbidden ones. The subject of schools is not among the forbidden subjects. 18 Ohio St. 22; 21 Ohio St. 10 ; 34 Ohio St. 239.
    “The power of the general assembly to pass local and special laws is embraced in the general grant of legislative power; subject, of course, to such inhibitions and limitations as are found elsewhere in the Constitution. Section 26, article 2, was not intended as a limitation of the power.” 29 Ohio St. 111.
    If, therefore, any subject-matter is in its nature local, requiring special legislation, section 26, article 2, does not prohibit special laws on that subject. The legislature is not required to provide for every local and special matter by general laws, whenever it can be done, but are only prevented from restricting the operation of laws of a general nature to any part of the state less, than the whole. 1 Disney, 202.
    It is clear that every law upon a general subject is not per se, nor by constitutional intendment, necessarily a law of a general nature. The subject may be general, but the law, and the rules and the regulations which it prescribes, may be special, and applicable only to a small portion of the state. 43 Cal. 432.
    It has been held over and over again in our own, and other states, having the same provision in their organic law as the one Ave are now considering, that as to the fees of officers, which constitutes a general subject, one which interests all parts of the state, a statute may prescribe what these fees shall be in a particular county, and may declare that they shall be less or more than those prescribed for the same office in some other county, or in all the other counties of the state. Such a laAv, it has been decided, would not be a laAV of a general nature, Avhieh must have a uniform operation throughout the state to render it valid, but would be a special law on a general subject. 43 Cal. 241.
    And we insist that though the legislature has already passed a general law on a given subject, it has the power to pass. special and local laws on the same subject, if not one of those expressly inhibited. 1 Disney, 39; 18 Ohio St. 9; 21 Ohio St. 1; 34 Ohio St. 245; State v. Covington, 29 Ohio St. 102; McGill v. State, 32 Ohio St. 228.
    The general assembly, then, has power to pass special laws in relation to schools, when special reasons exist, or when the legislature is of the opinion that proper reasons exist for them. This power as certainly comprehends the authority to pass a special act making an exception to the general law, as the authority to pass any other special act on the same subject; and the act in question, whether considered as an exception to the general school law, in addition to it, or independent of it, is entirely within the grant of legislative power to the general assembly.
    We cite, as fully sustaining the view which we have taken of this question, the following California cases : Ryan v. Johnson, 5 Cal. 87; Moore v. Patch, 12 Cal. 265; Smith v. Judge, Twelfth District, 17 Cal. 548; Addison v. Saulein, 19 Cal. 83; Corwin v. Ward, 35 Cal. 195; Brooks v. Hyde, 37 Cal. 360; Exp. Smith, 38 Cal. 702; Peoples. C. P. R. R. Co., 43 Cal. 398; State v. Thompson, 2 Kas. 432; Rice v. State, 3 Kas. 141; Leavenworth v. Miller, 7 Kas. 479; Darling v. Rogers, 7 Kas. 592; Beach v. Leary, 11 Kas. 23; Noffzigger v. McAllister, 12 Kas. 315; Gentile v. State, 29 Ind. 409; State v. Tucker, 46 Ind. 315; State v. County Court, 50 Mo. 317; State v. County Court, 51 Mo. 83; Commissioners v. Shields, 62 Mo. 247.
    II. The board of education of New London school district is not a corporation within the purview and application of section 1, article 13 of the constitution.
    To determine just what a board of education is, see Commissioners v. Mighels, 7 Ohio St. 109; Railroad Co. v. Commissioners, 1 Ohio St. 77; Hunter v. Marion County, 10 Ohio St. 520; Dillon on Municipal Corp. § 10; Angell & Ames on Corp. § 24; Potter’s Law of Corp. § 428; 13 Mass. 192; Cooley on Const. Lim. 240-247; 30 Ohio St. 46; 23 Ohio St. 434; 31 Ohio St. 15; 29 Ohio St. 102.
    These references show the true character of the body known as the board of education — that it is not a corporation, municipal or private, but simply an organization, subject to the constant control of the legislature ; and constitutes the instrument by which the general asssembly administers that department of the civil administration of the state which relates to education and schools.
    The laws relating to the board of education may be changed as often as the legislature shall see fit; or they may be entirely repealed. The powers of the board may be modified, abridged, added to, or entirely taken away, without its consent. The board has no vested rights, and no property. It may hold property, but it is only for the use of the district, never for itself, or stockholders or shareholders.
    The title to the property which it does hold may at any time be taken from it without its consent, and vested elsewhere. The board is simply the custodian of what the legislature sees proper to deposit with it, boynd to use what is thus deposited in the manner directed by it, and not otherwise, and to yield it up when required. It constitutes an agency by which the general assembly works out its policy and purposes in educating the youth of the state. It serves, and is intended to serve, no other purpose.
   McIlvaine, J.

In compliance with the second section of the sixth article of the constitution, which provides, “ The general assembly shall make such provisions, by taxation or otherwise, as with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state,” general laws have been passed from time to time for the organization and maintenance of common schools throughout the state.

In the system adopted by the general law of May 1, 1873 (in force when the act under consideration was passed, and reenacted in substance in the Revised Statutes), the state was divided into school districts, styled respectively city districts of the first class, city districts of the second class, village districts, special districts, and township districts, and for each district was provided a board of education having the general management of the schools in such district. And it was also provided that The several boards of education now organized and established, and all school districts organized under the provisions of this act, shall be, and they are hereby declared to be, bodies politic and corporate;” and the act under consideration declares that the New London school district shall be governed and controlled in every manner by the laws of Ohio, now in force relating to village districts. Hence, it is claimed by the relator that this act, being a special act, assuming to confer corporate powers, is in violation of the 1st section of the 13th article of the constitution, which provides, The general assembly shall pass no special act conferring corporate powers.”

Whether powers conferred by the legislature upon a common school district be corporate or not, within the meaning of the provision of the constitution, cannot be determined definitively by the mere fact that such district or its board of education is declared by statute to be a corporation; but rather by the object of its creation and the nature of its functions. The district is organized as a mere agency of the state in maintaining its public schools, and all its functions are of a public nature. The evils, which this provision was intended to prevent, are not found in the special privileges conferred upon such public agencies. The evils sought to be prevented were such as resulted from special privileges conferred upon private corporations. That the inhibition extends to municipal corporations, cities and villages, has been settled by adjudications. See State v. Cincinnati, 20 Ohio St. 18, and 28 Ohio St. 445; State v. Mitchell, 31 Ohio St. 592, and cases there cited. In reference to these decisions, it is proper to remark that many of the powers and franchises of municipal corporations are of a private and local character, essentially different from those of mere political subdivisions of the state, commonly called quasi corporations. And again, cities and villages are classified as corporations and provided for in article 13 of the constitution, which relates solely to corporations; section 6 of which provides for their organization by general laws, so that the decisions referred to, iu which the inhibition of the 1st section is held to apply to municipal corporations, are of no weight on the proposition that school districts, or other political subdivisions of the state, are subject to the same inhibition.

On the other hand, school districts are constituted so as to partake rather of the character of counties and townships, which are provided for in the 10th article of the constitution, not as corporations, but as mere subdivisions of the state for political purposes, as mere agencies of the state in the administration of public laws. Hunter v. Mercer County, 10 Ohio St. 515; State v. Cincinnati, 20 Ohio St. 18. In this article reference is made to “ similar boards ” in connection with the commissioners of counties and trustees of townships.

It is quite obvious to us that county and township organizations, although quasi corporations, are not within the meaning of this provision of the constitution; and, upon full consideration, we are unanimous in the opinion, that school districts, as similar organizations, though declared by statute to be bodies politic and corporate, are not within the reason or meaning of this inhibition of the constitution. 11 Kansas 23, a case exactly in point.

¡¡jit is also contended that the statute in question is in conflict with section 26, article 2 of the constitution, which provides that “ All laws of a general nature shall have a uniform operation throughout the state.” Confessedly this statute operates only in New London township, and, under it, the schools of the township are organized and supervised differently from those of any other township in the state.

The true meaning of this constitutional provision is somewhat involved in obscurity, and has been questioned several times before this court. Two propositions, at least, involved in its construction may be said to have been settled: 1. That the general form of a statute is not the criterion by which its general nature is determined. In several instances, portions of the state have been exempted from the operation of a statute, in form general, by the enactment of local and special laws. State v. Judges, 21 Ohio St. 1; McGill v. State, 31 Ohio St. 228. 2. That whether a law be of a general nature or not depends upon the character of its subject matter. Kelly v. State, 6 Ohio St. 272: McGill v. State, 31 Ohio St. 228. It follows, therefore, that if the subject matter be of a general nature, all laws in relation thereto must have a uniform operation throughout the state, and if the subject matter be of a local nature, the legislature may provide therefor by laws either general or local in form.

The difficulty, therefore, in all cases, is in determining whether the subject matter of a.statute be of a general nature or not, and this difficulty, it seems to me, cannot be obviated by general rules, but by the consideration of each case as it arises.

That courts, as well as legislators, will differ as to this question, in many cases, is to be expected. TIence, the presumption in favor of the constitutionality of statutes, when challenged under this provision, is entitled to peculiar weight. But, while this is so, courts dare not trifle with this guaranty of the constitution, or fritter it away by holding the provision to be a mere direction to the general assembly, whose judgment in the premises is final. That there are subjects for leg-, islation of a general nature, concerning which all statutes must have a uniform operation throughout the state, I entertain no doubt. And, although it would be presumptuous to attempt an enumeration of them, 1 will venture to suggest the subjects of marriage and divorce, and the descent and distribution of estates, and others of like common and general interest to all citizens of the state.

In order, however, to avoid misunderstanding, I will here add, that on subjects concerning which uniformity is required, I have no doubt, that judicious classification and discrimination between classes, will not destroy the required uniformity.

Again, I assume that no one will dispute the proposition, that if the constitution declares a given subject for legislation to be one of a general nature, that all laws in relation thereto must have a uniform operation throughout the state, and courts should not hesitate to declare special and local enactments on such subject to be unconstitutional and void.

This brings us to the turning-point in the case. The constitution declares, not only, that the general assembly shall pass suitable laws to encourage schools and the means of instruction, (sect. 7, article 1), but also, that it shall make such provisions, by taxation or otherwise, as, with the income arising from the school trust fund, “ will secure a thorough and efficient system of common schools throughout the state (section 2, article 6). A majority of the court are of opinion that the subject of common schools is thus declared to be one of a general nature. These schools are sustained, in part, by a trust fund in which every section, as well as every individual of the state, has a common interest. This is not all: the interest of every section and every individual is to be secured by a thorough and efficient system of schools, and, as if it were to guard against such special and local legislation as we find in this statute, it is expressly declared that such system shall extend “ throughout the state.” It appears to me that no amount of logic could make plainer the proposition, that the common schools of the state, as a subject for legislation, is one of a “ public nature,” and that all laws in relation to the organization and management thereof must have a uniform operation throughout the state.

It is no answer to this objection to the statute, to say that the system inaugurated by the general law is not interfered with by this local act: inasmuch, as it is provided that the district of New London township shall be governed in every manner by the laws in force relating to village districts: for two reasons: 1st. Because under the general law there is no authority for extending the government of village districts over the subdistricts of townships, or for consolidating village and township districts in the manner provided in this act: and, 2d. There is no authority under the general act for organizing a board of education, as under this local enactment. And surely it cannot be said that these matters are not parts and parcels of the system provided for in the general statute.

"We will not undértake to compare the two systems as to efficiency. If the New London system is more efficient than that provided by the general law, it should be adopted throughout the state, otherwise it should not ;,but this is a consideration alone for the general assembly. We are satisfied, however, that it was a wise provision in the constitution that the system of common schools should be controlled and governed by general laws,- so that the whole state may enjoy the benefits of the best system which the experience and wisdom of the legislature case devise. It does not require a prophetic eye to see, that local legislation to suit the views of this locality and of that, would soon impair the efficiency of our public schools — that while in some places they might be elevated, in others they would be degraded. True, in some localities, from density of population and other causes, different necessities may exist requiring modifications in the management of schools in order to attain the greatest efficiency: but for all such cases, ample provision can be made by judicious classification and discrimination in general laws.

And I will add, in conclusion, that in expressing these views, the majority of the court should not be understood as holding, that, under peculiar circumstances, local legislation may not be resorted to for the purpose of enabling localities to discharge duties merely incidental, and such as would be incidental to any system, but would not either change or destroy the system itself; for instance, in the selection or change of school-house sites, or the erection or repair of school buildings and the like.

Judgment of ouster.

White and Johnson, JJ., did not concur in the second proposition of the syllabus.  