
    The State ex rel. v. Bargus et al.
    
      Public support of the poor — Infirmary directors — Laws of general nature defined — Constitutional law — Invalidity of act of May 14, 1894 (Ohio Laws, vol. 91, p. 287), determined.
    
    1. Laws providing for the public support of the poor are'of a general nature.
    2. An act by which the general assembly attempts to exempt counties from the operation of general laws on account of trivial differences in population is not of uniform operation throughout the state.
    
      3. The act of May 14, 1894, to amend section 957 of the Revised Statutes (Ohio Laws, vol. 91, p. 237), is repugnant to section 26, article 2, of the constitution.
    (Decided June 11, 1895.)
    Mandamus.
    The relators are the qualified aud acting- infirmary directors of Huron county, and the defendants are the commissioners of said county. The petition alleges the refusal of the defendants to perform certain duties enjoined upon them by the general statute, and admits that they are not required to perform such duties if “An act to amend section 957 of the Revised Statutes as amended May 1, 1894,” passed May 14, 1894, is valid. Insisting- that the act is void, the relators pray for a writ of mandamus commanding the defendants to perform the specified duties enjoined by the general law.
    The act is as follows:
    “AN ACT
    “To amend section 957 of the Revised Statutes of Ohio, as amended May 1, 1894.
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, That section 957 of the Revised Statutes of Ohio, as amended May 1, 1894, be amended so as to read as follows:
    “Sec. 957. In every county in which there is a county infirmary, there shall be a board of infirmary directors, composed of three persons, one of whom shall be chosen every year, and shall hold his office for three years, commencing on the first Monday in January next after his election. They shall be chosen by the electors of the county, unless part of the county is not taxed for the support of the country infirmary, in which case they shall be voted for only by residents of the territory so taxed; provided, however, that in counties which by the last federal census had, or which by any subsequent federal census may have a population of not less than 31,940 nor more than 31,960, and in counties which by the last federal census had, or which by any subsequent federal census may have a population of not less than thirty-five thousand four hundred (35,400) nor more than thirty-five thousand five hundred (35,500), no infirmary directors shall hereafter be elected, and the terms of those now in office shall expire on the first Monday in January, 1895. And in all such counties the board of county commissioners shall, at the expiration of such terms, become the successor of the board of infirmary directors, and shall perform all the duties, have the same powers, and be subject to the same obligations as devolve by law upon infirmary directors in counties where such boards continue to exist.
    “Sec. 2. That said section 957, as amended May 1, 1894, be and the same is hereby repealed, and this.act shall be in force from and after its passage.
    “Passed May 14, 1894.”
    The portion of section 957 as amended preceding the proviso, is the general statute upon the subject. The proviso attempts to prevent the operation of the general statute in Huron and Erie counties, they being the only counties in the state, whose populations at the last federal census came within the limits designated in the act. The amendment of May 1, 1894, was made with the object of preventing the operation of the general statute to Huron county; and by the amendment of May 14,1894, it was attempted to create a like exception as to Erie county.
    The cause is submitted on a demurrer to the petition.
    
      8. A. Wildman, for relator.
    The constitution provides as to courts of common pleas that their jurisdiction shall be fixed by law. It provides as to county officers that the general assembly shall provide “by law” for their election, that commissioners of counties, the trustees of townships and similar boards shall have such power of local taxation for police purposes, as maybe prescribed bylaw; that county officers may be removed, in such manner and for such cause as shall by prescribed by law. Kelley v. The State, 6 Ohio St., 272; Cooley’s Const. Lim., star paging, 391; Miller v. Kister (Cal.), 8 Pac., 814; In re Raun St. (Pa.) 19 Atl., 219; Ayres Appeal, 122 Pa. St., 266; Costello v. Wyoming, 49 Ohio St., 208; State ex rel. v. Ellet, 47 Ohio St., 94; Falk Ex parte, 42 Ohio St., 638.
    If no other county can in the future come within its operation without doing violence to the manifest object and purpose of its enactment and to the clear legislative intent, it is a local and special act, however strongly the form it is made to assume may suggest its general character. State v. Pugh, 43 Ohio St., 12; Bronson v. Oberlin, 41 Ohio St., 481; Fields v. Commissioners, 36 Ohio St., 481; Edmonds v. Herbrandson, 50 N. W. Rep., 970; State v. Hammer, 42 N. J. Law, 439; Nichols v. Walter, 33 N. W., 800; Appeal of Ayres, 122 Pa. St., 266; People v. R. Co., 23 Pac. Rep., 303; In re Washington St. (Pa.), 19 Atl., 219; State v. Boyd, 19 Nev., 43; Closson v. Trenton, 48 N. J. Law, 438; Bray v. Hud
      
      son Co., 50 N. J. Law, 83; City of Philadelphia v. Westminster Cem., 162 Pa. St., 105; Township of Lodi v. State (N. J.) 18 Atl., 749; Utsey v. Hyott, S. C. Y., 9 S. E., 338; State v. Summers’ Point (N. J.), 18 Atl., 694; Clark v. City of Cape May (N. J.), 14 Atl., 581; State ex rel. v. Bradshaw(N. J.), 27 Atl., 939; Vermont L. & T. Co. v. Withed, 49 N. W., 318; Endlich on the Interpretation of Statutes, section 521; State ex rel. v. Smith, et al., 48 Ohio St., 218.
    The constitution provides that the general assembly shall provide, by law, for the election of such county and township officers as may be necessary, and that no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators. It is believed that the latter of these provisions has been violated by the act in controversy.
    The infirmary directors nowin office were elected by the people, under general law, presumably because of their fitness for the duties pertaining to the position. The legislature, without prescribing by law any cause for their removal, attempts to make their positions vacant by shortening their terms, and then to fill the vacancies so unconstitutionally created, by the appointment of three other gentlemen now holding the office of county commissioners. State ex rel. v. Staley et al., 5 C. C. Rep., 602; Kirker v. Cincinnati, 48 Ohio St., 507.
    Where the term of an office is fixed and limited by the constitution, there is no power in the general assembly to extend the term or tenure of such office beyond ■ the time so limited. State ex rel. v. Brewster, 44 Ohio St., 589; State ex rel. v. Raine, 49 Ohio St., 580.
    
      
      Andrews Bros., for relator.
    The legislature has designated the act in its marginal references as referring to Huron and Erie counties. State v. Pugh, 43 Ohio St., 98.
    Even admitting that classification of counties on a reasonable basis may be possible under the constitution — that attempt by this law is unwarranted and unreasonable, and is, therefore, illegal and void. Costello v. Wyoming, 49 Ohio St., 202; Nichols v. Walter, 37 Minn., 264; State v. Hammer, 42 N. J. Law, 435; Bronson v. Oberlin, 41 Ohio St., 476; Carr v. Carrollton, 8 C. C. Rep., 1; State v. Judges, 21 Ohio St., 11; State v. Hipp, 38 Ohio St., 199.
    It therefore, being apparent that the law in question is local and special in its operation, if it is general in its nature, it falls within the inhibition of section 26, article II, of the constitution, which provides that all laws of a general nature shall' have a uniform operation throughout the state. The nature of a statute depends upon the character of its subject matter; if that be of a general — as distinguished from a local or special nature — existing in every county throughout the state, then the law is one of a general nature. Lehman v. McBride, 15 Ohio St., 605; Kelley v. The State, 6 Ohio St., 269; State v. Powers, 38 Ohio St., 54; Costello v. Wyoming, 49 Ohio St., 202; State v. Ellet, 47 Ohio St., 90; Falk ex parte, 42 Ohio St., 638; People v. Supervisors, 43 N. Y., 10; 68 N. Y., 381; 96 U. S., 238; Darling v. Rogers, 7 Kan., 592; Robinson v, Perry, 17 Kan., 288.
    We submit that the legislature has established by general laws, a system, operating throughout the entire state, for the care of the poor; and in this system, the office of infirmary director is an essential factor in every county where an infirmary has been established. This, being found, the law is of a g’eneral nature. State ex rel. v. Shearer, 46 Ohio St., 273; Grove et al. v. Leidy et al., 2 Ohio, 243; State v. Powers, 38 Ohio St., 54. When once established, the general infirmary system immediately becomes operative. All have an equal right to the provisions and purposes-there contemplated. Heck v. State, 44 Ohio St., 536; Driggs v. State, 51 Ohio St., 37.
    To enact a law giving to the counties of the state, generally, this protection, but denying it to Huron and Erie counties, would be to deny to the citizens of Huron and Erie counties the privileges, protections and guaranties conferred in this respect upon citizens of the rest of the state. McGill v. The State, 34 Ohio St., 237; Grove et al. v. Leidy et al., 2 Ohio, 243.
    We claim that the duties of the board of county commissioners to create and' oversee this trust, and to review the acts of managing directors, as inspectors of books, accounts and official conduct, is incompatible with the position of managing director. State of Ohio ex rel v. Taylor, 12 Ohio St., 130.
    That the law in question is in conflict with arti1 ele II, section 26, of the constitution, appears from its general effect in yet another, but not less vital particular. It has the effect to repeal (not in terms, but by necessary operation) in Huron and Erie counties only — certain laws for the care of the poor — which laws are clearly of a general nature; so that, even if the act itself — abstractly —were not general in its nature it is void for the above reason. 47 Ohio St., 99; State v. Ellet, 47 Ohio St., 90.
    The term of office is fixed, and compensation is provided for tlie officers for such term, in accordance with article X, section 2, and article II, section 20, of the constitution of Ohio. Such officers receiving a per 'diem salary. Revised Statutes, section 968; Commonwealth v. Butler, 99 Pa. St., 512; Anderson’s Law Dict., 914.
    . As to what constitutes an office, see State v. Brennan, 49 Ohio St., 33; State v. Kennon, 7 Ohio St., 556; State ex rel. v. Holbrook, 5 C. C. Rep., 602 ; 20 Johns., 492; Kirker v. Cincinnati, 48 Ohio St., 507.
    The power here sought to be'exercised, is one fraught with the greatest possibilities of public mischief and abuse. Van Riper v. Parsons, 40 N. J. L., 1; 18 Albany Law Journal, 407.
    If the general assembly can legislate out of office one set of administrative officers, and legislate in another set; whether officers elected by the people shall serve the people, might depend upon the caprice or the political complexion of the legislature. 5 C. C., Rep., 602.
    
      L. C. laylin, for respondents.
    A local act is necessarily repealed by implication, by the subsequent passage of another law of a general nature, on the same subject matter. Ex parte Van Hagen, 25 Ohio St., 431.
    That a law may be upon a general subject and not be a law of a general nature, has been frequently held by this court. Cass v. Dillon, 2 Ohio St., 610; Cricket v. The State, 18 Ohio St., 22; The State v. Judges, 21 Ohio St., 1; Hart v. Murray, 48 Ohio St., 605; Ohio v. Covington, 29 Ohio St., 102; Die State v. Baughman 38 Ohio St., 455; McGill v. The State, 34 Ohio St., 228; The State v. Kendle, 33 W. L. R., 83; The State v. Commissioners, 35 Ohio St., 458; The State v. Shearer, 46 Ohio St., 275; The State v. Nelson, 32 W. L. B., 412.
    Attention is also called to decisions rendered by the courts of other states, whose constitutions contain provisions similar 'to section 26, article II, of our constitution, State v. Hitchcock, 1 Kan., 178; Beach v. Lehey, Treas., 11 Kan., 23; Gentile v. State, 29 Ind., 409; State v. Tucker, 46 Ind., 355; State v. Boone Co., 50 Mo., 317; State v. Court, 51 Mo., 83; Commissioners v. Shields, 62 Miss., 247; Smith v. The Judge, 17 Cal., 554; People v. Railroad Co., 43 Cal., 432; Brooke v. Hyde, 37 Cal., 375.
    The law under review has a uniform operation throughout the state, within the meaning of that section of the constitution. It creates certain classes of counties under the power so often exercised by the general assembly; and any act relating to all alike in the class so created may be one of general nature. The State v. Hudson, 44 Ohio St., 139; The State v. Turnpike Co., 37 Ohio St., 481; The State v. Powers, 38 Ohio St., 63; The State v. Anderson, 44 Ohio St., 247.
    Classification of municipalities, based upon population, was approved by this court in the following cases: The State v. Cappeller, 39 Ohio St., 214; Bronson v. Oberlin, 41 Ohio St., 476; The State v. Pugh, 43 Ohio St., 112; The State v. Hawkins, 44 Ohio St., 108; Marmet v. The State, 45 Ohio St., 63. In several other cases this court has held legislative enactments to be void by reason of improper classification; one class was held too limited and restrictive; another was uncertain and illusory; while in another the classification was upon the basis of sidewalk construction and was not recognized; in other cases the express terms of the classification were such that the acts must necessarily be held to apply to existing municipalities only. The State v. Pugh, 43 Ohio St., 98; The State v. Smith, 48 Ohio St., 211; Costello v. Wyominy, 49 Ohio St., 202.
    The whole of article XIII of the constitution ■ was intended to apply only to corporations proper, private and municipal. Hamilton Co. v. Mighels, 7 Ohio St., 109; Hunter v. Mercer Co., 10 Ohio St., 520; The State v. Cincinnati, 20 Ohio St., 37; The State v. Powers, 38 Ohio St., 62.
    
      J. B. McICnight, prosecuting attorney, for respondents.
    Courts when called upon to determine the constitutionality of an act of legislation, will resolve all reasonable doubts in favor of the legislation, and declare the act valid, unless it is, in its judgment, plainly unconstitutional. State ex rel. v. Cincinnati, 20 Ohio St., 33, 34; Cooley's Const. Lim., 4th ed., 220-2-3-4-5; Gilpin and Wife v. Williams et al., 25 Ohio St., 294; Western Union Telegragoh Co., v. Mayer, Treas., 28 Ohio St., 539.
    Infirmar}” directors are county officers. State ex rel. v. Stewart, 26 Ohio St., 216; State ex rel. v. Breman, 49 Ohio St., 38.
    Turning to the constitution we find that section 1, article X, reads:
    “The general assembly shall provide, bylaw, for the election of such county and township officers as may be necessary. ’ ’ Thus making the legislature the sole judge as to what officers are necessary to carry on the county affairs of the several counties in the state, giving it the discretionary power to create such offices as, in its judgment, will benefit all or any particular county in the state. The legislature has repeatedly recognized and ex-ercisecl this right, and discretionary power vested in it by the constitution which in turn, has been approved by this court. State ex rel. Flinn v. Auditor of State, 7th Ohio St., 334; State ex rel. v. Hawkins, 44 Ohio St., 114; The State v. Kinninger, 46 Ohio St., 574; State ex rel. Fay v. Archibald, Sheriff, 51 Ohio St., 1; State ex rel. v. Hyde, 28 N. E. (Ind.), 186, 188.
    If this act is of a local nature, ■ it does not come within the inhibition of section 26, article II, of the constitution. Special legislation upon a subject matter in its nature local is not prohibited by section 26, article II, of the constitution, notwithstanding the subject matter is the subject of a general law. A law is not necessarily of a general nature by reason simply of its being upon a general subject. State ex rel. v. Shearer et al., 46 Ohio St., 275.
    That the act in question is in its nature local, we have no doubt. Whether a law is of a general or special nature depends, in a measure, upon the legislative purpose discoverable in its enactment. State ex rel. v. Shearer et al., 46 Ohio St., 282; Mc Gill v. State, 34 Ohio St., 241; Ruffner v. Commissioners, 1 Disney, 202.
    The most obvious principle of classification is that of population. That classification by population is a proper method of classification, is too well settled in this state to need any citations. Costello v. Wyoming, 49 Ohio St., 209; State v. Mortland, 20 Atl. (N. J.), 673; Cass v. Dillon, 2 Ohio St., 618; Mc Gill v. State, 34 Ohio St., 246 ; Cricket ex rel. v. State, 18 Ohio St., 9; State ex rel. v. Judges, 21 Ohio St., 10; Probasco v. Paine, Auditor, 50 Ohio St., 390.
   Shacjck, J.

The question of first importance is whether this act meets the requirement of section 26 article II of the constitution that ‘ ‘all laws of a general nature shall have a uniform operation throughout the state.”

The briefs of counsel present in a strong light the real and apparent conflict of decision and comment upon the application of this section to statutes said to be repugnant to its provisions. But a number of the cases cited may be dismissed because they are really determined by the consideration believed to be due to other provisions of the constitution relating specially to the various sub-1 jects of the legislation whose validity was questioned; such as those relating to grants of corporate power and those enjoining upon the general assembly the duty of establishing and maintaining public schools.

Still, it would be difficult if not impossible, to reconcile all the conclusions which have been reached concerning the effect of this section. Care seems to have been taken to avoid exact and comprehensive definitions of the phrases “general nature” and “uniform operation;” and from a course of interpretation intended to leave questions of conformity to be determined with respect to different statutes as they might arise, it has resulted that the apparent value of the legislation has sometimes affected. the views that have been entertained respecting its validity. There may also be observed the effect of cautionary suggestions and admonitions supposed to be promotive of conservatism, if not helpful in the discovery of the truth nor likely to contribute to harmonious interpretation. In various phrases it has been said that the members of the lawmaking bodies have knowledge of the limitations upon their power and are mindful of their duty not to transcend them. Harmony is not likely to be found among conclusions which result from the. application of a rule of inconstant force. Some contradictory conclusions upon this subject are the play of the balance in which deference to the constitution has been weighed against deference to the general assembly. Of these cautionary rules one, however, is useful: Acts of the g-eneral assembly should not be adjudged void upon mere doubts as to their validitjr.

But it does not appear to have been advertently held in any case, that this section belongs to the class of constitutional provisions which it has sometimes been thought safe to regard as directory, or more accurately — advisory, merely. On the contrary, there seems to be general acquiescence in the view expressed by Scott, J., in Kelly v. State, 6 Ohio St., 269, where he says that this section is “a general, unqualified and positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general-nature, or — in its own affirmative terms— requiring- that a uniform operation throug-hout the state shall be given to all laws of a general nature.”

It is arguing in a circle to say that a law is not of a general nature because its operation is limited. It is implied in this section that there are subjects of legislation of a general nature as to which there is the imperative requirement that the operation of the laws shall be uniform and coextensive with the subjects. Those who framed and adopted the constitution used the phrase “general nature” without definition, as though its meaning were well understood. Whatever doubts may have arisen since the adoption of the constitution as to the effect of this provision when applied to statutes as a test of their validity, it is not supposed that the meaning of the phrase has changed. It is with evident propriety that counsel point to its prior and contemporaneous use in legislation, as indicating the sense in which it was employed in the constitution. Many members of the convention had been members of the general assembly, and others were entirely familiar with the course of legislation under the constitution of 1802. Unless terms which had a well understood meaning are regarded as used according to that meaning, interpretation becomes mere speculation.

In volume eighteen, Laws of Ohio, published in 1820, the acts of the general assembly were published under the titles of “Acts of a General Nature ” and “Acts of a Local Nature,” and these titles were used consistently during the thirty years following that date and preceding the adoption of the present constitution. It can hardly be doubted that in this manner these terms became familar to the people, and their meanings were determined by such familiar usage. The laws published as “Acts of a general nature” were not always of uniform operation throughout the state, for that was not required by any provision of the constitution then in force. In the adoption of section 26, article II, of the present constitution, the phrase “Laws of a general nature” was employed in the sense then familiar to designate the acts, which, as experience had demonstrated, should have a uniform operation throughout the state.

It will not aid present purposes to enter the in-' teresting field of inquiry suggested, further than to ascertain whether acts providing for public aid to the poor were regarded as of a general nature. In volume eighteen, LaAvs of Ohio, at page 208, is a republication of an act entitled £ ‘ an act for the relief of the poor,” which had been passed February 10, 1816; and at page 223 of. the same volume is a republication of an act entitled “An act to authorize the establishment of poor houses,” which had been passed February 26, 1816. Both acts are published under the general title ‘ ‘ Acts of a general nature.” There was further legislation upon this subject January 26, 1827, January 19, 1829, and March 14, 1831, and all the acts were published under the same general title .as acts of a general nature.

That this has been regarded as a subject for laws of a general nature under the present constitution, appears from the general course of legislation upon the subject. So far as we have observed, all the legislation of the state prior to the act now called in question has accorded with the general belief that the poor are always and everywhere with us.

Indeed, this act itself affords evidence that the belief continues to abide with the general assembly that laws upon this subject are of a general nature. If the subject were not general, the counties of Huron and Erie might have been named instead of described.

It is contended that the act is of uniform operation throughout the state. Counsel for the defendants, with much reason, insist that uniform operation is not necessarily universal operation. In the provision which limits its operation to counties having infirmaries, the act before us affords a convenient example of legislation that operates uniformly, though not universally. The act but for the proviso, is of uniform operation, because it operates universally where are found the conditions for which legislative provisions are made: that is, in all counties having infirmaries. But the petition shows that these counties have infirmaries, and the purpose of the act, is to exempt them from the operation of laws applicable to other counties presenting the same conditions. Uniformity of operation requires that laws shall operate in all parts of the state where are found the conditions which are the subjects of the legislation.

The case does not call upon tis to determine whether the requirement of uniform operation forbids the reasonable classification of counties upon substantial differences in population. Isolation is not classification. The appearance of general and uniform legislation sought to be imparted to the act by the figures employed in the description of these counties and the regard that is paid to changes in population which may be disclosed by a subsequent federal;census, do not at all affect the character of the act. Its validity must be determined, not by its form, but by its substance and practical operation. It provides exceptional legislation on the basis of a difference in population so trivial that no one supposes it to be the real ground of the distinction and it applies to no counties but to Erie and Huron.

With the wisdom or the policy which the general assembty has, through the provisions of this act, attempted to establish in the two counties named, we have nothing to do. If it be unwise, this section forbids its application to Erie and Huron counties except bjx a law of uniform operation throughout the state which shall affect the interests of all constituencies and thus challenge the attention and judgment of all representatives. If it he wise,-this section beneficently requires that the people of the whole state shall share in its benefits. We are aware of no decision of this court in conflict with these views.

Demurrer overruled, and peremptory writ allowed.  