
    State ex rel. v. Commissioners.
    
      Powers of legislature — Not competent to authorzie county commissioners to widen road — Costs to be as'sessed on lands benefited and on general taxpayers— Without consent of parties assessed — Such power administrative not legislative — Constitutional law — I validity of act of April SB, 1893. (90 Ohio Local Laws, 238.)
    
    1. It is not competent to the general assembly to authorize the commissioners of a particular county to widen, extend and improve a certain road in a prescribed manner, one-half the costs and expenses to be assessed on lands within a prescribed limit, according to benefits, and the other half to be levied on the general taxpayers of the county, without the request or consent of any of the parties to be assessed. The exercise of such power over the affairs of a county is administrative in character, and not legislative; and the act is, for such reason, invalid.
    2. Where, by a special act, the commissioners of a particular county are authorized to extend and improve a certain road according to a particular plan, and certain villages are, likewise authorized to dedicate their property to the county in furtherance of the plan, and the power to so dedicate is an integral part of the plan, the act is invalid, for the reason that it confers corporate power on such villages.
    (Decided March 31, 1896.)
    Error to the Circuit Court of Hamilton county.
    This was a suit brought in Hamilton county common pleas by the state on the relation of Frederick Broerman against the commissioners of the county to enjoin them from widening, extending and improving Paddock road, as provided in a special act of the legislature passed April 25, 1893, and found in 90 Ohio Local Laws, 238, on the - ground that the act is unconstitutional. It was brought on the relation of Broerman, one of the abutting landowners, the prosecuting attorney having, on request, refused to bring the suit. A demurrer to the petition was sustained, and judgment rendered dismissing the action, which' was affirmed on error by the circuit court. The ruling on the demurrer is assigned for error here.
    
      Maxwell & Wilson, Theodore Horsiman and John R. Von Seggern, for plaintiff in Error.
    The act belongs to the class commonly known as mandatory improvement acts, where the legislature, in its wisdom, undertakes the improvement by special acts, in special localities, without permitting those who are to pay for the improvement to be heard as to whether or not they need or desire the improvement. It is true that this act differs from the Montgomery road act, in this, that the Montgomery road act uses the expression “authorize'and direct,” while the Paddock road act, uses the expression “authorize” in the first, second, and seventh sections, and the expression “authorize and direct,” in the title, and the imperative mood in the -other sections. Whether there be any real difference in 'this respect between the two acts may be questioned. Whether this act be mandatory upon the county commissioners, in the strictest sense of the word mandatory, or not, we contend that it is open to the objection made to the Montgomery road act by Judges Minshall and Burket in the case of Commissioners v. The State ex rel., 50 Ohio St., 653, and by Judges Minshall and Spear in Weston v. Goesling, as unrecorded except in 30 W. L. B., 291. Here, as in those cases, those who are to bear the burden of the assessment have no voice in the matter.
    It is provided that the probate court shall appoint three commissioners whose action,' in the absence of fraud; shall be final and conclusive. It seems to us to need no argument to show that to thus take away all remedy by appeal, or error, for ignorance or mistake, and all authority from the county commissioners, must invalidate this provision; and if this provision fall, the whole act must fall with it, for it is inseparable from the act.
    Another serious objection is that the legislature undertakes to provide upon what terms and conditions a perpetual right may (or shall?) be granted to a street railway company to operate a street railway on the road when it is finished, and in this matter neither the county commissioners, nor the public, abutting’ or otherwise, have any voice.
    
      Wells v. Laughlin, et al., 17, O., page 99. It may be conceded that the case State ex rel. v. Commissioners, 35 O. S., 458, would sustain the Paddock road act as to all its features, except those providing for the appointment of the three assessors by the probate court.
    Brief of Theodore. TIorstman.
    
    The constitution did not create the municipalities of the state, nor does it attempt to enumerate their powers. It recognizes them as things already in being, with powers that will continue toexist so far as they are consistent with the organic law, until modified or repealed! Cass v. Dillon, 2 Ohio St., 608.
    If the general assembly can prescribe so much of the specifications of a certain road improvement in Hamilton county, there is nothing to prevent it from, making a part of a law the plans and specifications in detail for a court-house building for any county. We submit that this is not the exercise of legislative power. 21 Ohio St., 1; Kelly v. State 5 Ohio St., 239.
    The act further provides that such assessment commissioners, so appointed,' shall certify the assessment by them made to the county auditor for collection.
    It will be observed that such assessment commissioners are entirely independant of the county commissioners; they do not report to the county commissioners; but, whatever action the assessment commissioners determine upon is final and conclusive. They, therefore, exercise virtually the power of taxation, one of the highest attributes of official functions. Sections 1 and 2, article 10, of the constitution provide that all county officers shall be elected. State ex rel v. Brennan, 49 Ohio St., 33. As to what constitutes an officer, see 7 Ohio St., 546; 29 Ohio St., 347; 49 Ohio St., 33; 45 Ohio St., 196.
    Spiegel, Foraker & Bencligs and Millet: Outcalt for defendants in error.
    While the title of the act employs the language, “authorize and direct, ” and which would, therefore render the act mandatory were the intent and meaning of the act itself completely lodged in the phraseology of the title, yet, since it is not in the title of an act that we must look for the intent of the legislature, we must go to the text of the statute, and if that is plain and unambiguous the title can not have the effect to vary it. Sutherland on Statutory Constructions, section 210, page 278. See also Bishop on Written Laws, see. tion 45, 46, etc. State v. Pugh, 43 Ohio St., 98-113.
    There can be no question but that this is a special act: “Local and special legislation is not forbidden by the constitution. It plainly requires that ‘all laws of a general nature shall have a uniform operation throughout the state,’ but it does not require that all acts of the general assembly shall be of a general nature. State v. Pugh, 43 Ohio St., 111.
    We insist that this law does not in any of its provisions confer corporate power. Wherever express or implied power is attempted to be conferred by special legislation, it must be a new and additional power. Elliott on Streets, 107. 1st Beach on Public Corporations, section 564. Dillon on Municipal Corporations, section 89. 5 Ohio, 20; 5 Ohio St., 121. 18 Ohio St., 569. Revised Statutes, 1552.
    But, for argument’s sake, carrying the discussion further, we claim that, notwithstanding the fact that the part of section 7 above referred to may bé unconstitutional, still the law will stand becanse the parts are separable, and the part of the act in question may be disregarded wi thout affecting the remainder. Your court has repeatedly affirmed this principle.
    
      Bank v. Hines, 3 Ohio St., 1-34. State v. Baughman, 38 Ohio St., 460. State v. Frame, 39 Ohio St., 399-411. Railroad v Commissioners, 31 Ohio St., 388-344. Treasurer v. Bank 47 Ohio St., 503-524. Cooley on Constitutional Limitations, 109. Sutherland on Statutory Construction, sections 160-171.
    A second objection, made by counsel for plaintiff in error to the validity of this act, is in the method prescribed of making the assessment.
    
      The assessment, being in proportion and according to benefits accruing, a method is prescribed for the appointment by the probate court, of three commissioners to make said assessment, in accordance with the provisions of said law.
    These provisions of the law seem to us to be analagous to sections 2277, 2278, 2279, 2280, 2281, 2282, as well as 4836e and 4842, of the Revised Statutes, as against which we are unaware that any objection has ever been made. This law, therefore, in our judgment, would seem to wisely and properly provide for a method of preparing, equalizing and readjusting said assessment, with full notice to all such as may be interested therein, and does accord to all interested an opportunity to object and to be heard, without undue haste, by said commissioners. The law therefore, in this provision, does not in any sense seem to be open to the objection frequently urged against all objectional tax measures, that they deprive the citizen of his property or land without due process of law. Cooley on Taxation, 640; Cooley Const., Lim., 637; State of Ohio ex rel. Eastman v. Commissioners of Warren County, 17 Ohio St., 559. Bowles v. State, 37 O. S., 35. Carlisle v. Heatherington, 47 Ohio St., 236. Weston et al. v. Commissioners of Hamilton County, Ohio Circuit Court Reports vol. 6, page 641, affirmed by supreme court. Weekly Law Bulletin, vol. 30, page 291. Commissioners of Wood County v. Pargillis, 10 Circuit Court Reports, 376-392.
   Minshall, J.

This statute, we think, is invalid on several grounds. 1. It is an assumption of powers over the affairs of a county not possessed by the general assembly — it is administrative in character and not legislative. The act authorizes the commissioners of Hamilton county to widen, extend and improve the Paddock road from its present southern terminus to the northern corporation line of the village of Glendale in Hamilton county, in a specific manner. It would have been more properly designated, if it had been entitled, an act to widen, extend and improve the road as therein directed, with the approval of the commissioners of Hamilton county. All the authority conferred on the commissioners is to adopt the plan and carry it into execution. The title of the act is in fact, mandatory; and the act was evidently framed 'with that fact in view, but was afterward so changed as to make its execution subject to the authorization of the commissioners. The act prescribes the width of the road, the land that must be appropriated on each side to secure the width, except in the village of Glendale where the width is to remain as it is; it prescribes the grade of the road and the precise manner in which it is to be made: “On its subgrade, the crown of which shall be ten inches in the center and thoroughly rolled, shall be placed a layer of flat stones to a depth of not less than four inches, and the interstices filled up with broken stone, well rammed. On this shall be placed a layer of not less than five inches thick, of crushed or broken limestone and thoroughly rolled. This shall be covered by two layers each of two and one-half inches of crushed boulder or granite of the size to pass through a two and one-half inch ring; each layer to be separately rolled, and on this shall be placed a top dressing of screenings of boulder or granite, not less than one and one-half inch thick, which shall also be thoroughly rolled.”

One-half of the cost and expenses are to be levied on the general taxpayers of the county, and the other half is to be assessed on the lands and lots lying on both sides of the road and the ends thereof, within the distance of one mile, to be apportioned according to benefits by a commission to be appointed for that purpose. To meet the expenses in the first instance, the bonds of the county are to be issued and sold in an amount not to exceed the sum of $400,000. All this is to be done if the commissioners act at all, without the petition of a single person, interested or otherwise, although the costs and expenses may amount to the sum of $400,000, to be raised as above stated. Is the enactment of this law the fair exercise of legislative power? We think not. It is simply a usurpation of the powers heretofore always allowed to the proper administrative boards selected by the people of the localities concerned in the exercise of the right of local self-government; and always called into activity on the petition of, at least, a majority of those interested, not only in the benefits, but also in the costs and expenses of the improvement. This is shown in the road improvement laws of the state, under the one and two-mile systems, the ditch and levy laws, and the laws regulating the improvement of streets and alleys in municipal corporations.

The system of local self-government existed under general laws at the adoption of the present constitution; and there is nothing in it, nor in any of its provisions, from which a design can be inf erred to many way impair it; on the contrary every provision of that instrument, in any way related to the subject, manifests a purpose to preserve it unimpaired to the people. This appears in the provisions for the election of county and township officers by the people. Article 10, Constitution; who had theretofore always exercised these functions, at the instance of the parties concerned; and have always since done so, until within the last few moons. Commenting on the general features of a written constitution, Judge Cooley observes: “Lo,cal self-government having always been a part of the English and American systems, we shall look for its recognition in any such instrument. And if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view.” Constitutional Limitations, 45.

If it is competent to the general assembly to authorize the commissioners of Hamilton county by a special act to make such an improvement in that county, without the request of any one interested, then the same may be done in any county of the state, irrespective of the resources of the county, or of the ability of those who will be compelled to pay the large assessments made on their lands to meet the costs and expenses of the improvement. This is a wide departure from the principles of local self-government; and so wide, it is not possible to sustain it by any latitude of construction. It is true that, under this statute, the improvement must be authorized, or more properly approved, by the commissioners, which may be said to be some protection against the improvidence of the legislature. But, as already shown, when they act, they must proceed in the way and to the extent, mapped out by the legislature. The people interested have no control, and they are deprived of the initiative in the matter, which is the important point in the privilege of local self-government.

The fact that parties interested may be heard before a committee of the legislature, is not the equivalent of the right to be heard before the proper local board, where all may be heard and their objections considered, with little or no inconvenience or expense. Nor can the fact that, as stated by counsel the parties were heard in this case, make any difference. By the act no application or hearing of any kind is required; the commissioners may act sua aponte.

2. It is a special act conferring corporate power upon certain municipal corporations. The petition avers that the Paddock road and its proposed extensions will pass into or through the villages of Bond Hill, Carthage, Wyoming, Glendale and Avondale, in Hamilton county; and it is provided in section 7 of the act, that theocommissioners and the council ‘ ‘of any village owning any part of the lands necessary to be acquired for the purpose of carrying’ out the provisions of this act are hereby authorized to dedicate the same free of costs to the county.” This is a power not possessed by other villages of the state and is conferred on them by a special act. Under it they may so dedicate their streets to the county, and thereby relieve themselves from the duty of keeping them open, in repair and free from nuisances, as other villages are required to do. Here are two express powers conferred on these villages: One is to dedicate their property to the county, and the other is to relieve themselves from duties enjoined on other villages in regard to their streets and alleys. But it is suggested that the power here conferred is not essential to the plan, and may be disregarded without affecting the g’eneral provisions of the act. We do not adopt this view. The power intended to be conferred is the extension and improvement of a particular road according to a prescribed plan. To improve and extend it to and beyond these villages, or any of them, and not through them, would be a departure from the plan for which there is no authority in the act. It would be to adopt the plan in part and reject it in part, without anything in the act to warrant the court in saying that the one part is less material than the other; or that the legislature would have authorized a part of the improvement to be made without the whole. A material consideration may have been the making of the improvement through these villages. The act for this additional reason is invalid. Commissioners v. State ex rel., 50 Ohio St., 653.

There is still another ground on which this statute is, in my opinion, clearly invalid. The location and construction of public roads is a subject of a general nature, and should, therefore, be regulated by general laws, uniform in operation throughout the state. Const., article 2, section 26. And have always until recently been so treated. Cases may arise in which the peculiar circumstances may require special legislation of a local character. It may happen that a bridge is carried away by a flood, or that a court-house is destroyed by Are, and that under, existing laws, there is no power to meet the emergency thus created. Such circumstances create of themselves a special subject of legislation, growing out of the emergency, and are excepted by the law of reason out of the general rule upon the subject; or, more properly speaking, presenting, as they do, a special subject for legislation do not fall within the rule.

But as this question is presented in a number of cases now pending in this court, it is not now passed on by the court; nor are my associates in any way bound by what is here said. The points decided are expressed in the syllabus.

Judgment reversed, and judgment rendered for the plaintiffs.  