
    Samuel P. Bowles v. The State of Ohio.
    1. The legislature, in the exercise of the general power of taxation, as distinguished from the power of local assessment, may create a special taxing district without regard to municipal or political subdivisions of the state, and may levy a tax on all property within such district, by a uniform rule, according to its true value in money, for the purpose of defraying the expenses of constructing and maintaining public roads therein.
    2. A statute containing clauses in conflict with the constitution, which, independently of such clauses, may have a constitutional operation according to the intent and purpose of the legislature, is not wholly void by reason of such provisions.
    8. A bond purporting to be issued under a statute, in anticipation of a tax authorized to be levied, to pay for a public improvement, is the subject of forgery, although the statute, under certain conditions which may or may not exist, would have an operation in conflict with the constitution.
    Error to tbe Court of Common Pleas of Hamilton County.
    At tbe January term, 1880, of tbe court' of common pleas of Hamilton county, tbe plaintiff in error was indicted and was afterward convicted and sentenced to tbe penitentiary, for forging an instrument, of wbicb tbe following is a copy:
    
      “ Bond.
    “ By virtue of the Act of the General Assembly of the State of Ohio, entitled, an act to authorize the Board of County Commissioners to lay out and establish free turnpike roads, passed March 29th, 1875, and amendments thereto, passed March 28, 187G, the Commissioners of Biddinger Road Improvement in Hamilton County, do hereby acknowledge that the County of Hamilton, for the purpose of raising the money necessary to meet the expense of the Biddinger Road Improvement, is hereby hold to pay to S. P. Bowles or bearer, the sum of eight hundred and fifty dollars, on the first day of October, 1880, payable at the office of Treasurer of said Comity, with interest semi-annually at seven per cent, per annum, upon presentation of the coupons annexed.
    “ In witness whereof, we, the Commissioners of Biddinger Road Improvement of Hamilton Comity have hereunto set our hands and the Auditor has affixed the seal of the County this first day of October, in the year 1878.
    “ Auditor’s Office Hamilton County.
    
    “F. J. Biddinger,
    [seal.] George ~W. Arnold,
    Heinrich Wurzler.
    “ Commissioners of Biddinger Road Improvement in Hamilton County, Ohio.
    
      “ Attest, ~W. S. Cappeller, Comity Auditor.”
    * Further facts, necessary to an understanding of the case, will be found in the opinion.
    
      Samuel F. Hwnt and O. H. Blaclsburn, for plaintiffs in error:
    "We claim that this statute (the One Mile Assessment Act), for the reason that it provides for an assessment to pay the costs of a local public improvement, without regard to benefits to the property assessed, is unconstitutional, and null and void. Tide Water Co. v. Carter, 3 E. C. Greene, 518; 38 N. J. 190; 9 Harris, 168; Hammond v. Philadelphia, 65 Pa. St. 146 ; 69 Pa. St. 352 ; Chicago v. Larned, 34 Ill. 203; Wright v. Chicago, 46 Ill. 44; Cooley on Taxation, 505, 571; Re Canal Street, 11 Wend. 155 ; Striker v. Kelley, 7 Hill, 9, 23; 2 Denio, 323 ; Goodard, Petitioner, 16 Pick. 504; Lowell v. Headley, 8 Metc. 180 ; Anderson v. Kein Draining, 14 Ind. 199 ; Garrret v. City of St. Louis, 55 Mo. 504; Sanborn v. Rice County, 9 Minn. 273; Weeks v. City of Milwaukee, 10 Wis. 242; Creighton v. Mancon, 27 Cal. 613 ; People v. Lynch, 51 Cal. 15; Stewart v. Palmer, 74 N. Y. 183; Thomas v. Gaines, 35 Mich. 155; Nicols v. City of Bridgeport, 23 Conn. 204; Matter of Flatbush Avenue, 1 Barb. 286; Matter of Fourth Avenue, 4 Wend. 452; Matter of Abby Street, 11 Wend. 149; Matter of Wm. & Anthony, 19 Wend. 678; Emmerson v. Saltmarsh, 7 Ad. & El. 266; Dorn v. Gray, 2 Tenn. 358; Stofford v. Hamston, 2 R. & R. 691; Newark v. State, 3 Am. L. R. 25; Clapp v. Hartford, 35 Conn. 66; 8 Mich. 274 ; 5 Vroom, 227; 19 Mich. 39 ; 99 Mass. 627 ; 4 Pet. 514, 561, 563; 4 N. Y. 419; 3 Dana, 28; 9 Dana, 513; 3 Dutch. 190; Cooley Const. Law, 507, 508, 280; Dillon on Municipal Corporations, §§ 596, 597.
    To show that the assessment is by the laws of Ohio confined to such property as is specially benefitted and limited to the value of the special benefits conferred, we cite : Scoville v. Cleveland, 1 Ohio St. 126 ; Hill v. Higdon, 5 Ohio St. 243; Meissner v. Toledo, 31 Ohio St. 387; Chamberlain v. Cleveland, 34 Ohio St. 551.
    It is clear, upon both reason and authority, that special assessments to pay for public improvements can only be levied upon property specially benefited by the improvements and to an amount equal to, though not in excess of such special benefit, so long as we have a constitution, which declares . that laws shall be passed taxing by a uniform rule all property. Art. 12, § 2.
    Again, the act is unconstitutional in that the general assembly exceeded its authority in attempting to create a geographical division not recognized by the constitution for- the purpose of an assessment in real and personal property for a public improvement.
    The act, therefore, being unconstitutional, any and all proceedings under the act, either in the form of an assessment direct, as of a geographical division, or in the way of an issuance of bonds, must be null and void, db initio.
    
    This, of course, would invalidate any bonds of the Biddinger road improvement, or writings obligatory issued under the faith of the act, and under no circumstances could they be made the predicate of forgery.
    In concluding our argument on this branch .of the case, we especially invite the court’s attention to the following authorities, which we think, clearly and conclusively determine the law to be as we have claimed. Constitution of Ohio, art. 12, § 2; art. 1, § 19; Cooley on Taxation, 101; Burroughs on Taxation, 71; Chamberlain v. Cleveland, 35. Ohio St. 551; Messner v. Toledo, 31 Ohio St. 307; Hill v. Higdon, 5 Ohio St. 243; Scovill v. Cleveland, 1 Ohio St. 126; Thomas v. Gaines, 85 Mich. 156; Hammet v. Philadelphia, 65 Penn. St. 116; Clark v. State, 8 Ohio St. 630; Barnum v. State, 15 Ohio, 717; Henry v. State, 35 Ohio St. 130; People v. Tomlinson, 35 Cal. 503 : Roade v. State, 5 Neb. 174; Brown v. People, 86 Ill. 241; People v. Galloway, 17 Wend. 541; People v. Shall, 9 Cow. 778; People v. Harrison, 8 Barb. 560; Rex v. Moffat, 2 Leach, 483; Jones v. Palmer, 1 Leach, 483; State v. Biggs, 34 Vt. 501; Commonwealth v. Ray, 3 Gray, 441; Commonwealth v. Dallinger, 118 Mass. 439; Abbot v. State, 59 Ind. 70; Cunningham v. People, 4 Hun, 455 ; Henderson v. State, 14 Texas, 503; State v. Humphries, 10 Humph. 442; Abbott v. Rose, 62 Maine, 194; Rex v. Knight, 1 Salk. 375 ; 1 Lord Raym. 527; Regina v. Mereans, 2 Carr. & Kir. 356 ; Rex v. Rushworth, R. R. 317; Rex v. Burke, R. R. 496; Rex v. Pateman, R. R. 455 ; Rex v. Randall, R. R. 195; Rex v. Richards, R. R. 193; Watterman v. People, 67 Ill. 91; State v. Wheeler, 19 Minn. 98; Howell v. State, 37 Texas, 591; Rex v. Wall, 2 East P. C. 953 ; 1 Wharton Crim. Law, §§ 691, 695; 2 Bish. Crim. Law, § 521.
    
      
      George K. Wash, attorney-general, for the defendant in error:
    It is said, in the notes to the text in Sedgwick on the Construction of Statutory and Constitutional Law, page 421, that local assessments may be made according to some arbitrary standard of benefit; as for instance, frontage.
    In support of this doctrine are cited: Hill v. Higdon, 5 Ohio St. 243; Ernst v. Kunkle, 5 Ohio St. 520; N. J. R. R. Co. v. Connelly, 10 Ohio St. 159.
    If it is within the constitutional power to levy assessments according to some arbitrary standard, as for instance, upon the frontage upon a street to be improved, is it a violation of the constitution to provide that the local assessment shall be made according to the dollar valuation of all property within one mile of the proposed improvement ?
    In this connection I desire to call attention to the case of Foster v. Commissioners of Wood Co., 9 Ohio St. 541.
    The better opinion seems tobe that, whether expressly given, or resulting from the general grant of legislative power, the power to tax implies the power to apportion. I think that it is clearly settled in this state that, under our constitution, the expense of local improvements may be assessed upon the property benefited by such improvements. In the caso of municipal corporations, the general assembly has delegated to their councils the power to-make street improvements, and the power to apportion the expense of such improvements upon abutting property in proportion to the benefits conferred.
    I think that this court has said that, where a council has acted under this power and apportioned the expense in accordance with the benefits received, the courts have not the power to review such action of the council, and to say that it has not apportioned the expense of the local improvement justly. If the General Assembly can delegate this power to a municipal corporation, it has the right to exercise the power itself, and to apportion the costs of improvements in accordance with the benefits received. This is what the General Assembly has done in the one mile pike assessment laws. It has said that all real and personal property within one mile on each side of a free turnpike road is benefited by the .improvement, and after having so determined, it has further said that all such property must bear the expense of the improvement. The legislature, in the exercise of its power, having determined what property is benefited by the improvement, and that such property must pay the expense of the improvement, can this court review this action of the general assembly any more than it can review the action of a city council ?
    This court, in the case of State ex rel. Eastman v. Commissioners of Warren County, 17 Ohio St. 558, hold, that the act of March 29, 1867, “ to authorize the county commissioners to construct roads on petition of a majority of resident land owners along and adjacent to the line of said road ” is not unconstitutional. This act, in so far as the assessment for the expense of the improvement is concerned, does not differ materially from what is known in our revised statutes as the two mile assessment pike laws. I therefore conclude that these laws are not unconstitutional.
    The main difference between our two mile assessment pike laws, and our one mile assessment pike laws, is this:
    In the first the general assembly delegates to three disinterested freeholders, appointed by the commissioners, the power to apportion the estimated expense upon the real property according to the benefit to be derived from the improvement.
    In the second, the general assembly, instead of delegating this power to others, has itself exercised the power, and said that all of the property, real or personal, within one mile on each side of the proposed,improvement will be benefited thereby, and has assessed the exj>ehse of such improvement upon such property. Foster v. Commissioners of Wood County, 9 Ohio St. 544; Cooley on Const. Lim. 507.
    If, as I claim, this law is constitutional, then the said bonds are the subject of forgery. But, if the court should hold the law unconstitutional, still we say the bonds were the subject of forgery. The men who issued the bonds are -liable as individuals upon this paper, and therefore it has a value, and is the subject of forgery.
   McIlvaine, J.

The record before us is exceedingly multifarious. Eifty-five assignments for error are presented. Many of them have been settled by former decisions of this court, and others are quite elementary. There is one question raised, however, of grave importance and of more difficult solution. It is claimed by plaintiff in error that the forged bond shows upon its face that a genuine bond of like import would be wholly invalid and worthless, for the reason that the statute upon which it purports to have been executed was unconstitutional and void; and hence, that the forging of such bond is not a crime within the meaning of the statute defining and punishing forgery. The court below entertained this view of the case, but held that such bond if genuine would have bound the commissioners executing it, personally. This view of the case we have not considered, nor, indeed, whether the instrument, if genuine, would bind . any one, as, upon thorough examination, we are satisfied that there is nothing upon the face of the bond, or in the facts appearing in the record, which show that the bond, if genuine, would not have been a valid and binding obligation according to its terms and manifest purport.

The commissioners of the Biddinger road improvement, named in the forged bond, were appointed by the commissioners of Hamilton county, and were acting under the statute of March 29, 1875 (72 Ohio L. 93), as amended March 28, 1876 (73 Ohio L. 96,) entitled “An act to' authorize the board of county commissioners to lay out and establish free turnpike roads, and to repeal a certain act therein named.” The provisions of the statute, which have been relied on as showing the act to be unconstitutional, are found, chiefly, in sections 8 and 26 of the amendatory act. Section 8 provides “ That for the purpose of constructing free turnpike roads authorized by this act, extra taxes, when levied as hereinbefore provided, shall be on all real and personal property within one mile on each side of said free turnpike road, except when any free turnpike road in process of construction, shall cross a free turnpike road either completed or in process of construction, under and by virtue of any of the road improvement or free turnpike laws of this state, then such lands and personal property as lie within one mile on either side of where such free turnpike roads cross each other, shall be assessed and taxed in proportion to the benefits that may be derived by the owners of such lands and personal property from the construction and use of such free turnpike roads : except, further, that where any road improvement, or free turnpike road built and completed under any of the turnpike laws of this statiS, begins or terminates in the proposed free turnpike, or where any such roads or any toll, unimproved state or county road being unconnected with the same, shall lie, be or run upon either side of said proposed road, within less than' two miles, then the taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads.” Section 26 authorizes the commissioners of any free turnpike, appointed by the commissioners of the county, to issue bonds in anticipation of the extra tax, as authorized by the act. The first objection suggested to the validity of this statute, relates to the power of the legislature to create a tax district without regard to the boundaries of the municipal or political subdivisions of the state. A sufficient answer to the objection is, that the power exercised is a legislative one, and there is no express or implied limitation upon the power found in the constitution. That the power is not expressly inhibited is clear, and we are persuaded that .there is no implication against it, from- the fact that it has always been exercised without challenge in divers ways for the purpose of promoting local advantages, not only in the exercise of the power of local assessments, where the burden of local improvements has been placed upon property specially benefited, and in proportion to the benefits, but by general taxation upon local districts other than munici: cipal or political subdivisions. Noticeably, special taxing districts have been created for the purpose of supporting and maintaining schools and highways by the subdivision of townships ; and we can see no difference in principle between such legislation and the statute under consideration.

We do not deny that an act of the legislature might assume to place the burden of a local public improvement upon a district so cmcumscribed that the principles of taxation would be so far disregarded, as that it would be the duty of courts to hold it to be an invasion of tbe inviolability of private property. But no consideration of that kind arises under this statute, wbicb imposes a common public burden for a local public improvement.

Again, it is contended that tbe principle of uniformity required by tbe second section of tbe 12th article of tbe constitution is violated. All property witbin tbe taxing district must be taxed by a uniform rule according to its true value in money. Under tbis statute it is plain, that property witbin tbe taxing district and witbin a mile of tbe crossing of another free turnpike road, is not taxable by tbe same rule that applies to other property witbin tbe district.

In Fields v. Comm'rs of Highland County, 36 Ohio St. 476, it was held, that tbe act of March 29,1879 (76 Ohio L. 43), entitled “ an act to authorize tbe commissioners of certain counties to locate and construct turnpike roads ” was unconstitutional for want of uniformity in tbe rule of taxation therein prescribed. Tbe want of uniformity under that statute, and under tbis, is quite similar. But under that act tbe taxing district was co-extensive with tbe county, and it appeared, that tbe only county to wbicb it could apply (Highland) was so situated, with regard to other free turnpike roads, that it was impossible for tbe statute to operate uniformly upon tbe taxpayers of tbe district for any improvement that might be -made under tbe statute. Under tbe statute now being considered, the record does not show whether or not tbe taxes levied for tbe construction of tbe Biddinger road improvement would be uniform upon all tbe real and personal property witbin the taxing district, viz.: Avitbin one mile, on each side, of tbe Biddinger road. Clearly, if the Biddinger road improvement does not cross any other free turnpike road, tbe rule of uniformity required by tbe constitution is not violated. We do not knoAv, and cannot assume that there is such a crossing. Neither would tbe bolder of tbe bonds issued by tbe commissioners of tbe Biddinger road improvement, be put upon inquiry as to tbis fact.

Inasmuch, therefore, as tbe statute under consideration may have a constitutional operation, must it be declared absolutely void, because, under certain circumstances, which may or may not exist, the operation of the statute would violate the principle of uniformity required by the constitution as an essential rule in the imposition of taxes? "We think not. Although courts will never permit the unconstitutional operation of a statute, yet they will not declare it void m toto, if it may have an operation free from any violation of constitutional inhibitions, when such constitutional operation is clearly within the purview of the statute, and no reasonable ground exists for believing that the legislature would not have passed the act without the obnoxious provision.

Judge Cooley, in his work on constitutional limitations (* 178), says, “ Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, and the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional part is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, it must be sustained.” The statute before us is within the rule thus stated.

Much has been said in argument against the validity of this statute, on the assumption that it was intended as an exercise of the power of local assessment; but inasmuch as the burden does not purport to have been apportioned to property benefited, according to benefits, it was not a rightful exercise of such power. We do not think the legislature intended to exercise the power of local assessment according to benefits. Except as to property within a mile of the crossing of free turnpikes, there is no indication that special benefits were either the rule or the limit, of the burden imposed. The intent of the legislature, we think, was to establish special taxing districts for the purpose of defraying the expenses of the construction of free turnpikes therein, and to impose the burden thereof by taxation upon all the property within the district by a uniform rate, according to its true value in money. And in so far as that purpose can be accomplished under the statute, without an infraction of the constitution, we see no objection to its operation.

We find no error in the record for which 'the judgment below should be reversed.

Judgment affirmed.  