
    The State of Ohio ex rel. Sheets, Attorney General, v. Cowles et al.
    
      Cleveland Park Commission — Invalidity of Act of April 6, 1900— 94 0. L., 511 — Act of April 16, 1900 — 94 O. L„ 610 — Sections 1 of Article IS and Section 86 of Article 8 of constitution-constitutional law.
    
    The act of April 6, 1900, entitled “An act to provide a hoard of park commissioners and to provide for the acquisition of grounds for parks, etc., in cities of the second grade of the first class” (94 O. L., 517); and the act of April 16, 1900, supplementary thereto (94 O. L., 670), are void because repugnant to Section 1 of Article 13 of the constitution and to Section 26 of Article 2 of the constitution.
    (Decided February 5, 1901.)
    In Quo Warranto :
    The defendants admit that they assume, and are about to exercise, the official powers attempted to be conferred upon them as the board of park commissioners in and for the city of Cleveland by the legislative acts following, by issuing bonds in the sum of five hundred thousand ($500,000), dollars, levying taxes for their payment and for the payment of taxes on the bonds of said city previously issued and of exercising said powers generally. The Attorney General denies the constitutional validity of said acts; and his petition prays that the defendants be ousted from said office and from the exercise of all said powers. The legislation referred to consists of “an act to provide a board of park commissioners and to provide for the acquisition of ground for parks, * * * etc., in cities of the second grade of the first class,” passed April 6, 1900 (94 O, L., 517), and the act supplementary thereto passed April 16, 1900 (94 O. L., 670). The material parts of said legislation are the following:
    The act of April 6, 1900, is as follows:
    “AN ACT
    “To provide a board of park commissioners, and to provide for the acquisition of grounds for parks, park entrances, park driveways and boulevards, and for the improvement, management and control of parks, park entrances, park driveways and boulevards, in cities of the second grade of the first class.
    “(CLEVELAND.)
    
      “Be it enacted by the General Assembly of the State of Ohio:
    
    “Section 1. In cities of the second grade of the first class, there shall be a board of park commissioners composed of five persons who shall be electors of ■the county in which are situated such cities. Said Iboard of park commissioners shall be appointed by the judge [s] of the circuit court of the judicial circuit in which said counties and cities are situated, or any two of them, together with the probate judge of said counties. Said board of park commissioners shall be appointed one member for a term of one year, one member for a term of two years, one member for a term of three years, one member for a term of four years, and one member for a term of five years, and they shall hold their office until their successors are duly chosen or elected as hereinafter specified. In case of any vacancy caused by death or otherwise, of any of said members so appointed, said vacancy shall be filled for the unexpired term by the same appointive power. Commencing with the first Monday of April, 1901, one member of said board of park commissioners shall be chosen by the electors of such cities for a period of five years, and one member shall be chosen for a period of five years upon the first Monday of April of each succeeding year to fill the vacancy caused by the expiration of the term of the member whose term then expires * * * .
    “Section 2. Such board of commissioners shall have exclusive charge, supervision and control of the parks, park entrances, park driveways and boulevards * * * in such cities or in the counties in which such cities are situated. Such board of park commissioners shall have power to acquire and hold property in the name of the city, by purchase or condemnation, for public parks, for the enlargement of public parks, park entrances, park driveways or boulevards, to receive gifts, donations and devises of lands or other property for public parks, park entrances, park driveways and boulevards, on behalf of such cities, and in the name of such cities; to lay out, construct ind improve with walks, drives, roads and bridges, shelter houses and other improvements, the public parks, park entrances, park driveways and boulevards, held by it or under its control; to enter into contracts for the construction, enlargement and improvement of such parks, park entrances, park driveways and boulevards; to adopt rules and regulations, regulating the use of the same and the travel and traffic thereon, and to prevent disorder and improper conduct within the precinct of any park, park entrance, park driveway or boulevard. All rules and regulations which such board shall at any time pass, shall, immediately after its passage and before taking effect, be published at least ten days in two daily newspapers of opposite politics, and of general circulation, printed in such city. Such board of park commissioners shall also have power to agree with the owner or owners of any street railway occupying any part of any park entrance, driveway or boulevard, or any public road, street or avenue, which may be placed under the charge of such board of park commissioners, as provided in section 8 of this act, for the removal of any such street railway therefrom, which, in the opinion of such board of park commissioners, may interfere with the use of any park, park entrance, park driveway or boulevard, road or street, for park purposes, and upon the terms of such removal and the amount of compensation agreed upon to be paid to such owner or owners, and the same shall be paid out of the park funds hereinafter provided to be raised by special assessment. Provided, however, that no such agreement for removal shall be made until there shall be filed with the board of park commissioners a written application therefor, signed by the persons owning a majority of the frontage upon any street, avenue, or part of street or avenue, from which such street railway is to be removed.
    “Section 4. It shall be unlawful for any person to cut, injure or deface any tree, building or fence, or other erection in the park; to turn domestic animals or poultry of any description upon the parks, or to permit them to wander therein; to carry firearms within, or to frighten, hurt or kill animals or birds belonging to the parks; to hinder or interfere with men employed upon the parks. All persons found violating the provisions of this section, or any of the rules, regulations or ordinances adopted by any such board or the city council shall be guilty of a misdemeanor, and shall be punished upon conviction before the police court of said city, upon complaint and proceedings as now had and provided by law in cases of misdemeanor and violations of city ordinances, by a fine not exceeding fifty dollars, and in default of payment be imprisoned not exceeding thirty days, and the jurisdiction of the police court of such cities is hereby expressly extended to include all parks, park entrances, park driveways and boulevards, belonging to such cities and under the control of such board, whether within or without the corporate limits of such cities. Such board of park commissioners and their officers and employes, shall have power to make arrests for misdemeanors committed within the precincts of any park, park entrance, park driveway or boulevard, under their management and control, whether within or without the limits of such cities, or for the violation of any rules, regulations or ordinances established by such board or city council, for the government of such parks. Such board of park commissioners shall have power to seize and impound, any cattle, horses, mules, donkeys, goats, swine, sheep or other animals, or any poultry of any description found running at large upon such parks, park entrances, [park] driveways, or boulevards, to impose a penalty not to exceed five dollars, with reasonable expenses upon each animal or the poultry so seized, and to enforce payment thereof in such manner as the rules and regulations may provide.
    “Section 5. Any person violating any of the rules, regulations of [or] ordinances of any such board or park commissioners, or city council, or violating any statute of Ohio relating to parks or boulevards or ordinances of any municipal corporation relating to parks or boulevards, in which there is any such board of park commissioners shall be liable to a civil action for damages to be brought by such board of park commissioners in the name of any such city; and the amount recovered shall be paid into the park expense fund of such corporation herein provided for.”
    Section 6 confers power to employ a secretary, superintendent, landscape gardener, laborers, care-takers and other employes.
    “Section 7. Such board of park commissioners shall have power to appropriate, enter upon and condemn for public use, and hold and possess on behalf of and in the name of such cities, any property for enlarging any park, parks or public ground, now owned by any such city; and for establishing such public park or parks, park entrances, park driveways and boulevards, as in the opinion of such board of park commissioners it may be necessary from time to time to establish, either within or without the limits of such cities; * * * .
    “Section 9. Such board of park commissioners shall also have power by a four-fifths vote, to take charge of, control and improve any public road, street, avenue, alleyway, * * * or grounds of any kind or any part thereof, within or without any such cities, for the purpose of a park entrance, park driveway or boulevard, with the consent of the proper municipal authorities, or of the other corporations or public officers or authorities owning or having charge thereof.
    “Section 11. For the purpose of carrying out the provisions of this act, and also for the purpose of assisting to pay for constructing, enlarging or improving, or extending any park, park entrance, park driveways or boulevard, such board of park commissioners is hereby authorized and empowered to make special assessments upon all property benefited by any such constructing, enlarging, improving or extending any park, park entrance, park driveway or boulevard, to the extent such board shall decide; and in proportion to the benefit which may result therefrom, whether such property so benefited shall be within any such city or within the county * * * .
    “Section 12. Such board of park commissioners shall also have power to vacate or close up, within the limits of any park or parks any and all public roads and highways, excepting railroads which may pass through, divide or separate any land selected or appropriated by it for parks, upon payment of damages, if any, caused by such vacation, to the owners of private property injured thereby, to be ascertained in the manner now provided by law, and such damages, if any, shall be paid out of the park funds, and no such road or highway, and no railroad, whether street or steam, shall be laid out through any park or parks, except with the consent of such board of park commissioners and city council; but the proper municipal ¡authorities of such cities may grant the right to cross the park driveways or boulevards with steam or street railroads.
    “Section 14. It shall be the duty of such board of park commissioners, or its successors, annually, to levy on the real and personal property of any such city a tax sufficient to pay the interest of all bonds issued under the provisions of an act entitled ‘An act to provide a board of park commissioners and to provide for the acquisition of grounds for parks, park entrances and. park driveways, for the improvement, management and control of parks, park entrances and park driveways in cities of the second grade of the first class,’ passed April 5, 1893; and also to pay all interest upon all bonds issued under the provisions of an act entitled ‘An act supplementary to an act to provide a board of park commissioners, and to provide for the acquisition of grounds for parks, park entrances, and park driveways, and for the improvement, management and control of parks, park entrances, and park driveways, in cities of the second grade of the first class, passed April 5, 1893,’ passed April 27, 1896. Also to pay all interest of all bonds issued under the provisions of an act entitled, ‘An act supplementary to an act to provide a board of park commissioners, and to provide for the acquisition of grounds for parks, park entrances and park driveways and the improvement, management and control of parks, park entrances and park driveways in cities of the second grade of the first class, passed April 5, 1893, and also an act passed April 27, 1896,’ passed April 26, 1898.”
    The act of April 16 is in form and matter supplementary to the act whose provisions are abstracted; and it provides, among other things, for the borrowing by said park board of the sum of one million dollars in addition to all funds heretofore authorized to be borrowed for park purposes and to issue bonds therefor and the levying of taxes for their payment.
    
      John M. Sheets, Attorney General, and Solders & Tilden, for plaintiff.
    We claim that both of these acts are unconstitutional for the following reasons:
    First. The powers attempted to be exercised by the legislature by these two acts, over cities of the second grade of the first class, are administrative, and not legislative, and in conflict with Secs. 1, 19 and 20, Art. 1, of the constitution of Ohio, and in conflict with the fourteenth amendment of the constitution of the United States in that they attempt to deprive persons of property without due process of law. State ex rel. v. Commissioners, 54 Ohio St., 33, (Paddock Road case.)
    In the case of the State ex rel. v. Covington, 29 Ohio St., 102, the court sustained a law appointing a board of police commissioners, in cities of the first grade of the first class, but it will be noted that this board simply had control over the police force of the city, with power of appointment to the force and removal therefrom, 73 O. L., 70.
    In the case of the State ex rel. Hibbs v. Commissioners, 35 Ohio St., 458, the court sustained an act of the legislature authorizing and directing the commissioners of Franklin county to levy a special tax for the purpose of improving a road from the city of Columbus, along Greenlawn avenue to its terminus in the old Chillicothe road, 74 O. L., 472.
    This case is overruled by the Paddock Road case, State ex rel. v. Commissioners, 54 Ohio St., 333, above referred to and by the Montgomery road case referred to below".
    In the case of the State ex rel. Herron v. Smith, 44 Ohio St., 348, the court sustains an act of the legislature establishing a board of public affairs in cities of the first grade, first class. 83 O. L., 173.
    The case of the Commissioners v. State ex rel., 50 Ohio St., 653, is the case commonly knowm as the Montgomery Road case. This act (90 L. L., 205) authorizes and directs the commissioners of Hamilton county to proceed to improve Montgomery Turnpike by widening and extending the same in a manner provided in the act.
    These, briefly stated, are the holdings in Ohio relating to the question of local self-government. As W"e have stated, the case of State ex rel. v. Covington, 29 Ohio St., 102, did not raise the question of the power of the legislature to appoint a board wdth power of local taxation. The State ex rel. Hibbs v. Commissioners case, 35 Ohio St., 458, did raise the question of the power of the legislature to impose directly burdens by taxation and special assessment upon the people of a county for local improvements, and the power w7as sustained, but this case is directly overruled by,the Montgomery Road case, 50 Ohio St., 653, from which w7e have quoted the opinion of Judge Minshall, concurred in by Judge Burket; and is also overruled by the Paddock Road case, 54 Ohio St., 333.
    The case in State ex rel. v. Smith, 44 Ohio St., 348, is expressly distinguished by the court from a case where the power to impose burdens by taxation is involved, as will appear from the quotation w7e have made from the case. So that we have 50 Ohio St., 653, and 54 Ohio St., 333, squarely holding that the legislature has not the power to pass a law imposing burdens by taxation and assessment upon the people of a given county or township without the initiative being given to the people of the county or township in this matter. In the one case, (50 Ohio St., 653,) it is said to be the taking of property without due process of law; and in the other case, (54 Ohio St., 333,) it is said to be the exercise of an administrative not a legislative power, and the denial of the right of local self-government, which is inherent in our institutions.
    Should the principles of local self-government be extended to cities?
    The organization of townships and counties is provided for by Art. 10 of the constitution. The organization of qities is also provided for by Sec. 6 of Art. 13 of the constitution.
    The language of Sec. 6, Art. 13, is that the legislature shall restrict their power of taxation and assessment, etc. By implication this delegates the power of taxation and assessment for local purposes to the municipal corporation whose organization is to be provided for, and the power reserved to the legislature is merely restrictive. Hill v. Higdon, 5 Ohio St., 243; Maloy v. City of Marietta, 11 Ohio St., 636.
    Before the adoption of the present constitution, cities and villages were created by special laws, and to remedy this it was provided by Sec. 6 of Art. 13 that they must be organized by general laws.
    Clearly, the legislative power is not enlarged by Sec. 6, Art. 13, and the power to pass the acts of April 6 and April 16, 1900, must be found, if it is to be found at all, under Sec. 1 of Art. 2.
    Under the general grant of power by Sec. 1 of Art. 2 of our constitution, what power and control has the legislature over municipal corporations therein? This question has not been adjudicated in Ohio. It has, however, been decided in other states, and to these decisions and the principles thereof, we invite the court’s attention. Dillon on Municipal Corporations, Sec. 66; Dartmouth College v. Woodward, 17 U. S. (4 Wheat.), 694; Benson v. New York, 10 Barb., 223.
    The distinction between the public side of a municipal corporation, where it represents the state as its agent, and the private side of such corporation where it represents the property interests of its citizens as their agent, is clearly recognized in Ohio. In the one case it is acting in a governmental capacity and is not liable for the acts of its agents and servants, and in the other case (acting in a private capacity), it is liable for the acts of its agents and servants the same as a private corporation or individual. College of Medicine v. Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19; Toledo v. Commissioners, 41 Ohio St., 149; Robinson v. Greenville, 42 Ohio St., 625; Frederick, Admr., v. Columbus, 58 Ohio St., 538; People v. Hurlbut, 24 Mich., 44; Park Commissioners v. Detroit, 28 Mich., 228; People ex rel. v. Batchelor, 53 N. Y., 128; 3 Hills Iiep., 531; 31 Penn. St., 175.
    The legislature cannot compel a city to incur a debt or obligation without its consent. Dillon on Municipal Cor., Sec. 71 to Sec. 74 inclusive; 31 Vt., 226; People v. Mayor of Chicago, 51 Ill., 17.
    The acts of April 6 and April 16, 1900, are special acts conferring corporate powers, and are therefore in conflict with Sec. 1 of Art. 13 of the constitution. The act of April 6 (1900), so far as it provides for an elective park board, confers on the people of Cleveland the power, to elect this board, with the right in it, the said board, to exercise the powers conferred. This confers corporate powers on the city of Cleveland.
    The act of April 16, 1900, confers power on this board to issue one million dollars of bonds in the name of the city and for and on behalf of the city; and the city council is authorized and empowered to levy a tax to pay the principal of these bonds. That these two acts attempt to confer corporate power we think will not be disputed. State ex rel. v. Smith, 48 Ohio St., 211; State v. Pugh, 43 Ohio St., 98.
    
      T. FI. Hogsett and John G. White, for defendants.
    The first objection to said acts of April 6 and 16, 1900, is that the powers attempted to be exercised by the legislature were administrative and not legislative. This objection necessarily prompts the inquiry: What powers has the legislature attempted to exercise by the passage of these acts?
    It attempted—
    First, to create the office of park commissioner.
    Second, to provide for filling such office.
    Third, to define the powers and prescribe the duties of the board of park commissioners when constituted.
    The power of the legislature to provide for the creation of a board of park commissioners in cities of the second grade of the first class, must, in view of the adjudications by this court, be conceded as settled. State ex rel. v. Hawkins, 44 Ohio St., 98; Smith v. Lynch, 29 Ohio St., 261; State ex rel. Herron v. Smith, 44 Ohio St., 348.
    In the above case, as in the case at bar, it was argued by counsel that the legislature could not take from the people of a municipality the right to choose directly or indirectly, 'their officers of local administration and confer such right upon the governor of the state. People v. Hurlbut, 24 Mich., 44; Park Commissioners v. Detroit, 28 Mich., 228; Western College v. Cleveland, 12 Ohio St., 375; People v. Mayor, 51 Ill., 31.
    But the court did not seem to be of opinion that, that doctrine was applicable to such case in Ohio. In the case of Smith v. Lynch, Treas., supra, a board of health was constituted pursuant to an act of the general assembly.
    That the general assembly of the state has power to provide for the filling of such office in the manner pointed out by this law, seems so firmly settled it appears almost to be a work of supererogation to submit to the court argument or authorities in support of such power. Section 27, Art. 2, of the constitution of Ohio; State ex rel. v. Kennon, 7 Ohio St., 547; Ohio ex rel. v. Covington, 29 Ohio St., 102; State ex rel. v. Constantine, 42 Ohio St., 437.
    It seems clear, therefore, that the legislature has not exceeded its constitutional authority in providing for the appointment of a board of park commissioners, as designated in the act of April 6,. 1900. The legislature did not undertake to make the appointment, but designated the persons, viz.: “The judges of the circuit court of the judicial circuit in which said counties and cities are situated, or any two of them, together with the probate judge of said county” to make the same.
    We come now to a discussion of the question whether the acts of April 6, 1900, 94 O. L., 517, creating a board of park commissioners, and the act of April 16, 1900, 94 O. L., 670, empowering the board of park commissioners to issue a million dollars of bonds, are unconstitutional because in violation of Art. 13, Sec. 1 of the constitution: “The general assembly shall pass no special act conferring corporate powers.”
    And Art. 13, Sec. 6: “The general assembly shall provide for the organization of cities, and incorporated villages, by general laws.”
    Before proceeding to the consideration of the principal question, we shall only stop to express a doubt whether, if these are local laws applying to Cleveland alone, conferring incidentally corporate powers, they are for that reason necessarily void. The constitutionality of the former Cleveland park board act is not assailed. Under that statute many hundreds of acres of park land have been acquired; many hundred thousand dollars spent, and the city now finds itself with a system of parks incomplete, some finished, some unfinished, some requiring for their fitting and adequate use according to the plans intended by the former park board, the acquisition and improvement of further lands. This would make a local temporary necessity which this court seems to us to have held might be met by appropriate legislation. Merrill v. Toledo, 3 C. D., 524, 6 C. C., 430. Affirmed, 29 Bull., 220; Kumler v. Silsbee, 38 Ohio St., 445.
    Assuming, then, without discussion, that the act creating the board of park commissioners does confer corporate powers, is it true that it is a special act? We insist that it is not, but a general law.
    The general rule determining the question of whether a law applying to a municipality is a general or a special law, a legitimate or illegitimate exercise of the right given by the constitution to classify the municipalities, is well settled, and in any given case doubt can only be as to the application of the rule.
    
      State v. Pugh, 43 Ohio St., 98.
    
      The argument is that no other municipality than Cleveland could have come into the second grade oí the first class in time to hold the first election of park commissioners on the first Monday of April, 1901.
    It was not only possible when this law was passed, but it is possible today for Cleveland to pass out of this grade before April, 1901, and for other municipalities of the state to come into the second grade and first class and to liold the first election of park commissioners in the charter election of 1901. Section 1547, Rev. Stat.
    This official report is a report of the secretary of the state of Ohio. Hayes v. Cleveland, 55 Ohio St., 117.
    This is the report of the secretary of state, provided for by Sec. 1617, Rev. Stat., and must be made on or before November 20th of each year. Section 62, Rev. Stat; State ex rel. v. Hudson, 44 Ohio St., 137.
    From this it appears that it is not sufficient to make a law a special law that only one municipality can hold the first election at the time indicated in the statute. It must also be true that no other municipality can at any time thereafter on coming into the proper class appoint the officers and fill their place by election as provided by this statute. Marmet v. State, 45 Ohio St., 63; State ex rel. v. Wall, 47 Ohio St., 499; State ex rel. v. Toledo, 48 Ohio St., 112; State ex rel. v. Smith, 48 Ohio St., 211; State ex rel. v. Baker, 55 Ohio St., 1; State ex rel. v. Ratterman, 58 Ohio St., 731.
    The much cited name of State v. Pugh, 43 Ohio St., 98, and previous cases hold that such a grant as this made to an unincorporated municipal board is not a statute conferring corporate powers. State v. Cov
      
      ington, 29 Ohio St., 102; State v. Baughman, 38 Ohio St., 455.
    Further than this, we do not think the question as to the constitutionality of a law empowering a constitutional board to borrow money and issue bonds can be raised by quo warranto.
    
   Shaxjck, C. J.

The view presented by the relator is that this legislation confers corporate power, that it is special because it applies to the city of Cleveland alone, and that it is therefore repugnant to section 1 of article 13 of the constitution which ordains that: “The general assembly shall pass no special act conferring corporate powers.” Counsel for the defendants, of course, admit that it confers corporate power and that in its present operation it confers it upon the city of Cleveland and upon no other municipality. They say, however, that the operation of the act is restricted to the city of Cleveland, not by naming that city, but by describing it by a grade and class in which that city stands alone. The proposition necessary to give importance to that distinction is that the validity of legislative acts is to be determined, not by their present actual operation, but by their possible future operation. No reason is offered in support of that proposition. Indeed the proposition is uniformly suppressed.

The inevitable reliance of counsel for the support of this legislation is upon the decisions of this court sustaining the validity of legislation, dividing the cities of the state into classes qnd grades so that said cities are isolated, for the purpose of receiving grants of corporate power not conferred upon any other, city. Such legislation was originally sustained upon the theory that the classification would remain uh-changed, and that in the progress of the state’s development other cities would enter the classes existing. It was a judicial prophesy that an act whose practical operation was special when it was passed and considered would,- in time, operate generally. How this prophesy failed of, fulfillment appears from the fact that for a quarter of a century the five largest cities of the state, have, in important respects, been subject to acts conferring corporate power and operating in each of them separately. With but little modification the same observation might be made of many other municipalities. It has resulted that to a majority of the urban population of the state the provisions of this article of the constitution have become chiefly known as sources of hope which have never been realized. It is quite true that many appeals for relief from such legislation have been made to this court based on the claim that these beneficent provisions of the constitution should be put into practical operation. It is equally true that the doctrine of classification, or such isolation under the form of classification, has been adhered to. The reports show that a majority of the members of the court have regarded themselves as bound to pursue a course upon which our predecessors inadvertently started. A careful examination of the cases seems to warrant the observation that since the practical effect of the doctrine has been demonstrated, the cases upon the subject have been followed without approval except in the separate opinion of Minshall, J., in State ex rel. the Attorney General v. Ratterman et al.. 58 Ohio St., 731. These observations are made here only to show that a doctrine so completely discredited should not be extended. The present case is to be decided in deference to that doctrine and to the decisions upon which it rests. Some members of the court seem willing to have it understood that they really entertain such deference. Others of us are willing to assume it for the purposes of this case, as it will permit us to reach wiiat we conceive to be the correct conclusion with respect to this legislation.

We are not now7 to test these acts by our knowledge of their actual operation, but w7e are to imagine that the classification is to remain unchanged indefinitely so that without limit of time other municipalities may enter the same grade and class with Cleveland and so become subject to all legislation which is valid as to that city, and then inquire wiiether all of the cities which may enter said grade and class will become subject to the acts now7 under consideration. In the first section of the act of April 6 it is provided that the first election to the board of park commissioners shall be held on the first Monday of April, 1901; and of course it can operate only in cities wiiich on that day are in the second grade of the first class. In the brief of counsel for the defendant this point is met with the suggestion that under existing statutes the cities of Toledo and Columbus, having the population required to advance them to the second grade of the first class, might by their voluntary action effect such advancement so that they might be, or at least they might have been, advanced before the first Monday of April, 1901, and there w7ould be three cities subject to the operation of this legislation. In the view we are now7 taking of the subject this suggestion of the imagination is legitimate; but it is manifestly inadequate. It assumes that the doctrine of classification will be satisfied if the legislation applies to a plurality of the cities belonging to the grade and class. The doctrine is not quite so bad as that. It is of its essence that every municipality in the state now below the first class may be advanced to the second grade of the first class upon its attaining the requisite population and taking appropriate action for that purpose, and that everyone of them, when so advanced, without limit as to their numbers or the time of their advancement shall become subject to-every legislative act which is now valid as to that grade and class. It is, therefore, quite evident that at this point the imagination of the framer of these acts wearied in its flight, and failed. That the city of Cleveland alone was in contemplation in this act is quite evident from others of its provisions which are set out in the statement of the case.

Because the doctrine of classification of cities is not to be extended this legislation is void in view of others of its provisions. According to that doctrine such classification has been recognized as effective to prevent the present actual operation of the constitutional provision quoted, prohibiting conferring of corporate power by special acts; and acts conferring such power have been held valid although they actually conferred it upon but one city. But when that classification has been resorted to for the purpose of evading the requirement of section 26 of article 2 of the constitution that: “all laws of a general nature shall have a uniform operation throughout the state,” its efficacy for that purpose has been denied. Commissioners v. Rosche Brothers, 50 Ohio St., 103; City of Cincinnati v. Steinkamp, Trustee, 54 Ohio St., 284. By repeated and explicit provisions these acts are to operate in Cuyahoga county outside of the city of Cleveland, and in no other' county of the state. Among the subjects of a general nature to be controlled by the act of such.limited operation is that of roads. • For the act assumes to authorize the commissioners to vacate existing roads and to establish others at their discretion. It cannot be necessary to repeat the reasons which have led this court to the conclusion that roads are a subject of general legislation within the meaning of this provision of the constitution.

The fourth section attempts to. create misdemeanors by provisions peculiar to Cuyahoga county. And the provision that “all persons found violating the provisions of this section or any of the rules or regulations or ordinances adopted by any such board or the city council shall be punished on conviction,” etc., can hardly be construed otherwise than as an attempt to delegate to the board authority to define misdemeanors. Perhaps no laws are more commonly regarded as general than those which define and punish crimes and misdemeanors. But added exposition of the subject cannot be necessary in view of the former decisions. Ex parte VanHagan, 25 Ohio St., 426; Ex parte Falk, 42 Ohio St., 638; The State v. Winch, 45 Ohio St., 663.

In Ex parte Falk it was held that an act which provided for the punishment of any person found in any city of the first grade of the first class or within four miles thereof having burglars’ tools in his possession, and extending jurisdiction of the police court of the city over such offenses to said limit of four miles .beyond said city, was void for repugnancy to this section. Enactments which prohibit acts at or near places whose character makes such acts peculiarly hurtful are not exceptions to this rule, for their operation is as wide as their subject.

The present case does not call in question the power of the general assembly to prohibit and punish depredations in public parks, if the power is exercised by a law operating wherever its subject is found. Consideration of other provisions of the act 4s omitted because unnecessary to a conclusion in the case.

Judgment of ouster.

Burket and Dávis, JJ., concur.  