
    CONSTITUTIONAL LAW — TURNPIKES.
    [Franklin County Circuit Court,
    January Term, 1895.
    Shearer, Summers & Allread, JJ.
    
      James K. Grove et al. v. Henry Leidy et al.
    Franklin County Turnpike Daw herd to be Unconstitutional — Special Legislation.
    Section 4786 of the Revised Statutes, as amended May 1,1894 (91 O. L., 190), fixing the hounds or taxing limits of “one-mile assessment pikes” is a law of a general nature within the meaning of section 26, Article II of the Constitution, and in so far as the second exception in said enactment prescribes a plan or system of bounds or taxing limits in respect to such pikes for counties containing a city of the first grade, second class, different from that provided for other counties of the state, it contravenes said constitutional mandate.
    ON Appeal from the Common Pleas Court of Franklin Co.
    
      
       The judgment in this case was affirmed by the Supreme Court; unreported, 53 O. S., 662. The circuit decision is cited in Pearson v. Stephens, 7 Circ. Dec., 122, 1_8; and is followed in 5 Dec., 243.
    
   Allread, J.

Plaintiffs Jas. K. Grove and others, landowners within the bounds of the taxable territory of what is designated as the “ Brice & Columbus Free Pike ” road improvement, situate wholly in Franklin county, commenced an action in the common pleas court of Franklin county, to enjoin the defendants, Henry Leidy et al., as road commissioners, from laying out, etc., said free turnpike road improvement.

The cause was tried in this court upon the pleadings and an agreed statement of facts.

This improvement was sought to be constructed under the exception in the act of May 1, 1894 (91 O. L., 190), limited to counties containing a city of the first grade of the second class. Franklin county, which contains the city of Columbus, is the only county now coming within the terms of the exception.

The pleadings and agreed statement of facts show, in brief, that if the exception applicable to Franklin county governs, the petition upon which the county commissioners acted, in the appointment of said road commissioners, was signed by a majority of the landholders within the bounds of the road; on the other hand, if that exception is to be disregarded, then additional landholders are included within the limits of the road, so that the signers of said petition do not constitute the requisite majority prescribed by section 4774 of the Revised Statutes.

It is conceded that a petition signed by a majority of the land owners within the bounds of the road is a necessary prerequisite to the jurisdiction of the county commissioners in the appointment of road commissioners under' section 4775 of the Revised Statutes.

The sole question, therefore, presented in this case is, whether the second exception contained in section 4786 as amended May 1, 1894, is constitutional.

This exception by its terms is limited to counties containing cities of the first grade of the second class.

We do not find it necessary to decide whether an act purely local, dealing with territory only, would be valid or not.

We are clearly of the opinion that the act of May 1,1894, is a law of a general nature. Section 4786 is a part of a general system of building pikes, known as, “the one-mile pike assessment” law. It is applicable to the whole state. The act of May 1, 1894, amending section 4786, upon its enactment assumed its place in chapter 7 of article VII of the Revised Statutes entitled, “one-mile assessment pikes,” and thus became a part of it.

The manner and form of this enactment fix the legislative purpose, and determine it to be a law of a general nature.

Such a ■ law is required by the constitution to have a uniform operation throughout the state.

This uniform operation, however, does not prevent a proper classification of objects, persons or localities. It has been settled by the supreme court that such classification is allowable, but as laid down by DiCKMAN, J. in Costello v. Wyoming, 49 O. S., 202, it “ must be just and reasonable and not arbitrary.” And also that it “shall be upon some apparent natural reason, some reason suggested by necessity, by such a difference in the situation and the circumstances of the subjects, placed in different classes as suggests the necessity or propriety of different legislation with respect to them.”

It is further said that it cannot be “sanctioned as a pretext for evading the limitation of special legislation.” Apply the test then: Is there any apparent reason — any reason suggested by necessity, why a county containing a city of the first grade of the second class should be governed by one system of pike laws and the balance of the state by another ? It is contended that the requirements and necessities of a county containing a large city like Columbus may be very different as to pike laws from those of outlying, thinly settled counties of the state.

This presupposes that Franklin county, alone, is thickly settled, having parallel roads and connecting roads closely interwoven, while the balance of the state is sparsely settled without such parallel unconnected or connecting roads within the limits prescribed by the one mile pike assessment law.

If the supposition were true in fact, there would be grounds for sustaining the classification as reasonable. But there are three counties.containing more populous cities than Columbus; which, by the terms of this act, are to be governed by the same rules as to pikes as the more sparsely settled counties.

This act, in effect, says, that as to counties containing a smaller city than Columbus, and in counties containing a larger city than Columbus, pikes shall be constructed upon the petition of the majority of land owners within one mile upon either side without regard to connecting or parallel unconnected roads, while in Franklin county, they shall be constructed upon the petition of the majority of the land owners within one-half the distance to a connecting or parallel disconnected road. If this distinction can be sustained, then it will be proper to single out any other county in the state by reference to its population, or to the class or population of a-city located in-it, and enact a different system for the construction of pikes therein. By this means we might have different pike systems in each county of the state.

The plan of taxing districts embodied in the exception under consideration, was, prior to February 8,1894 (91 O. D-, 18), in substance the system provided for the whole state. At that time the legislature amended the section and thereby extended the taxing district or pike limits to one mile upon either side of the ■ improvement. We must presume that there was a sufficient reason for this general act, and that the necessities and requirements of the people of the state demanded it, but if it is proper in the building of pikes outside of Franklin county to extend the taxing limit to one mile upon either side of the improvement without regard to parallel roads, why not in Franklin county also ? It is no more unjust to tax a land owner who has an improved road, for the construction of another improved road a mile distant, in Franklin county, than in any other county of the state. The over-lapping of road districts and consequent double taxation as pikes are being built would apply equally well in every county of the state. The distinction attempted to be drawn in favor of Franklin county, we think, is illusory, arbitrary and not founded in reason.

Disregarding the form of the act and looking to its substance, we may apply the characterization, by Wiiajams, J., of the act in the Summit county case, in 49 O. S., on page 99, “It is the experiment of a new scheme, general in its nature, and local in its application.”

O. J. Marriott and E. L. Taylor, for Plaintiffs. ■

Donaldson & Tussing, contra.

Tbe classification of cities as made by the legislature and sustained by the •court is based upon the construction of a clause of the constitution giving the legislature power for the organization of cities. We do not think the classification so allowed should be extended to counties, at least to the extent that it has been allowed for cities. We conclude therefore that the exception applicable to Franklin county is1 in contravention of article II, section 26 of the constitution and therefore void.

Perpetual injunction granted.  