
    Zumstein v. Mullen et al.
    
      Organization of cities — Municipal code — Aei of October 22, 1902— .Legality of passage — Number of wards for Cincinnati — Cowstitutional law.
    
    1. The act of October 22, 1902, entitled “An act to provide for the organization of cities and incorporated villages and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse of such power as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith,” was legally passed by the general assembly and the same is not a special, but a general act, having a uniform operation throughout the state.
    2. Under said act the city of Cincinnati is entitled to only twenty-nine members of council, and of that number twenty-four are to be elected from wards, and five by the electors of the city at large.
    3. Under said act the city of Cincinnati must be subdivided into twenty-four wards, no more and no less.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error filed his petition in the court of common pleas as a taxpayer on behalf of the city of Cincinnati, against Michael Mullen, W. W. Granger and Charles H. Urban, as follows:
    “Plaintiff says that the city of Cincinnati is a municipal corporation, being organized as a city of the first grade of the first class under the laws as existing prior to the enactment of October 22, 1902, and that under said act it becomes a city; that Charles J. Hunt is the corporation counsel of said city; that plaintiff is a taxpayer of said corporation and has in writing requested said Charles J. Hunt to apply for an injunetion as herein applied for, but that said request has been refused and neglected.
    “Plaintiff says that at the regular meeting of the board of legislation of the city of Cincinnati, held November 17, 1902, a certain resolution was passed authorizing the appointment of a committee to prepare ordinances for re-districting the city of Cincinnati into twenty-six wards; for fixing the number of members of the board of public service for the city of Cincinnati at five, and the number of members of the board of public safety at four; and for fixing the salaries and bonds of all officers to be elected at the election to be held on the first Monday in April, 1903, and the salaries and bonds of the members of the board of public safety to be first appointed.
    “And said resolution further authorized the said committee to prepare, or cause to be prepared, plans, maps or other drawings that may be required to show the new wards and the boundaries thereof, and to employ for this purpose such clerks, engineers, stenographers, draughtsmen and surveyors as they may deem necessary, and to pay all the expenses incident to the work of said committee out of the funds of this board appropriated for committee expenses and other incidentals.
    “Plaintiff further says that pursuant to said resolution the defendants, Michael Mullen, W. W. Granger and Charles H. Urban, were appointed a committee to carry out the purposes of said resolution, and are preparing to, and unless restrained by the order of this court will execute the duties devolved upon them by said resolution, and expend the moneys authorized for the purposes in said resolution stated.
    “Plaintiff says that said resolution was passed under the pretended authority of an act of the legisla* ture, passed October 22, 1902, entitled ‘An act to provide for tbe organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit so as to prevent the abuse of such power as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith.’
    “Plaintiff says that the said resolution does not conform to the powers attempted to be conferred by said act in that it authorizes the re-districting of the city of Cincinnati into twenty-six wards, which is not the number required by said act; that the city of Cincinnati had at the last federal census a population of 325,902.
    “Plaintiff further says that the said act is invalid and of no force, for the reason that the same was irregularly passed in that all parts, amendments and substitutes did not have the concurrence of both houses of the general assembly.
    “Plaintiff further says that said act is invalid and of no effect in that it contravenes the constitution of the state of Ohio, being a special act conferring corporate power, and a law upon a general subject not having a uniform operation throughout the state.
    “Wherefore, plaintiff prays that said defendants, and each of them, may be enjoined from incurring any expenses or obligations on behalf of the city of Cincinnati as in said resolution authorized, and that a temporary restraining order may issue nending the final hearing of this cause, and that upon such final hearing the said injunction may be made perpetual, and for his costs and other relief.”
    A copy of said resolution is attached to the petition, but is here omitted, because it is not necessary to an understanding of the case.
    The defendants filed the following answer ;
    
    “Now come the defendants, and by way of answer admit that the city of Cincinnati is a municipal corporation organized as a city of the first grade of the first class under the laws as existing prior to the enactment of October 22, 1902; that under said act it became a city; that Charles J. Hunt is the corporation counsel of said city; that plaintiff is a taxpayer of said corporation, and has, in writing, requested said Charles J. Hunt to apply for an injunction, as therein prayed for, and that said request has been refused.
    “Defendants further admit that at a regular meeting of the board of legislation of the city of Cincinnati, had November 17, 1902, a certain resolution was passed, authorizing the appointment of a committee to prepare ordinances for re-districting the city of Cincinnati into twenty-six wards, for fixing the number of members of the board of public service for the city of Cincinnati at five and the number of members of the board of public safety at four, and for fixing the salaries and bonds of all officers to be elected at the election to be held on the first Monday of April, 1903, and the salaries and bonds of the members of the board of public safety to be first appointed.
    “Defendants further admit that said resolution, in terms and conditions, was as set forth in the petition; that pursuant to said resolution defendants were appointed a committee to carry out the purposes of said resolution, and are preparing to, and unless restrained by the order of this court, will execute the duties devolved upon them by said resolution, and expend the moneys authorized for the purpose in said resolution stated.
    “These defendants further admit that said resolution was passed under and by virtue of an act of the legislature, passed October 22, 1902, entitled ‘An act to provide for the reorganization of cities and incorporated villages and to restrict their powers of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power, as required by the constitution of Ohio, and its repeal of all sections of the Revised Statutes inconsistent herewith.’
    “Defendants deny that said resolution does not conform to the powers attempted to be conferred by said act in authorizing the re-districting of the city of Cincinnati into twenty-six wards, admitting, however* that the city of Cincinnati had, at the last federal census, a population of 325,902.
    “Defendants further deny that said act was irregularly passed in any of its parts, amendments and substitutes, and that it did not have the concurrence of both houses of the general assembly, and defendants say that said act was regularly and properly passed by both houses of the general assembly.
    “Defendants say that said act, as senate bill No. 1* was passed by the senate of the general assembly, with the concurrence of a majority of all the members elected thereto, and a vote thereon taken by yeas and nays, and entered upon the journal; that said bill was duly and regularly messaged to the house of representatives; that said bill, with certain amendments, was passed by the house of representatives of the general assembly, with the concurrence of*a majority of all the members elected thereto, and a vote thereon taken by yeas and nays, and entered upon the journal; that the house returned said bill to the senate with the amendments aforesaid for the concurrence of the senate; that the senate refused to concur in the amendments of the house and returned the bill to the house; that the house insisted upon its amendments, and asked for the appointment of a conference committee in the manner provided by the rules of the general assembly; that said conference committee was appointed to adjust the differences between the two houses upon said bill and made its report to both houses adjusting said differences; that both the senate and house of representatives, by constitutional majorities and by a yea and nay vote entered upon the journal, agreed to and concurred in the report of the conference committee, and no other vote was taken upon said bill; and that said report, with the adjustment of differences as aforesaid, was in words and figures the act involved in this case; and that the presiding officer of each house publicly, in the presence of the house over which he presided while the same was in session, and capable of transacting business, signed said bill and the same became a law.
    “Defendants further say that all these proceedings were taken in conformity with the rules of the senate and house of. representatives of the general assembly of Ohio, and in conformity with the uniform practice of said houses.
    “Wherefore defendants pray to be dismissed hence with their costs, and for all other and proper relief.”'
    The plaintiff filed a general demurrer to this answer which the court of common pleas overruled. The plaintiff not desiring to reply, the court rendered final judgment against him and dismissed his petition, to all which he excepted.
    The circuit court affirmed the judgment, and thereupon the case was brought here to reverse the judgments below.
    
      Mr. Ellis G. Kinkead, for plaintiff in error.
    Plaintiff in, error contends that thq new municipal code is invalid for two reasons: (1) That it is unconstitutional, and (2) That it was not regularly passed.
    Plaintiff further contends that if the act be valid, it requires a city of the size of Cincinnati, 325,902, to be re-districted into twenty-four wards, and not twenty-six, as attempted to be done in said resolution.
    I. It is not necessary to review the many cases upon the classification of municipalities. The latest two, State ex rel. v. Jones, 66 Ohio St., 453, and State ex rel. v. Beacom, 66 Ohio St., 491, clearly enunciate the principle that the classification by the legislature of municipalities beyond the classes directly authorized by the constitution, to-wit, cities and villages, is invalid.
    The method of classification of municipalities heretofore adopted has been by population. The new code introduces'a new method of classification equally unauthorized by the constitution. The essential difference between these methods is that the code establishes a variety of governments for cities, and authorizes a municipality through its legislative board to determine into which of these it desires to be placed.
    This is done through the departments of public service and of public safety. In section 138, the code provides that there shall be in every city a department of public service consisting of three or five directors, and that the number of said directors shall be fixed by council. In section 146, the code provides that there shall be a department of public safety administered by two or four directors, as council shall determine. These provisions effectually classify cities into the following classes:
    (1) Cities having a board of public service of three and a board of public safety of two members.
    (2) Cities having a board of public service of three and a board of public safety of four members.
    (3) Cities having a board of public service of five and a board of public safety of two members.
    (4) Cities having a board of public service of five and a board of public safety of four members.
    This classification is as rigid as any which might be based upon population, and differs from that method chiefly in that the municipality through its council is authorized to determine into which class it will go.
    In the present case, the resolution of the board of legislation of Cincinnati attempts to place that city in the fourth of the above classes.
    Plaintiff in error contends that the classification' of the constitution of all municipalities into cities and villages is exclusive of any other classification.
    II. The answer sets forth the method by which the legislature attempted to pass the municipal code. The said code was introduced into the legislature as senate bill No, 1, and was passed by the senate in due form. It was then duly and regularly messaged to the house, where it was amended and passed by the house in its amended form; the house returned the bill to the senate as amended for the concurrence of the senate. The senate refused to concur in the amendments of the house, and returned the bill to the house; the house insisted upon its amendments and asked for the appointment of a conference committee; said conference committee was appointed to adjust the differences between the two houses upon said bill, and made its report to both houses adjusting said differences: both the senate and the house of representatives by constitutional majorities and by a yea and nay vote entered upon the journal agreed to and concurred in the report of the conference committee, and the said report with the adjustment of differences was in words and figures the act involved in this case; the presiding officers of each house, in the presence of the house over which he presides while the same was in session, and capable of transacting business, signed said bill.
    The constitution provides, article 2, section 9, that on the passage of every bill, in either house, the vote shall be taken by yeas and nays, and entered upon the journal, and no law shall be passed in either house without the concurrence of the majority of all the members elected thereto. The steps taken in the house and senate as set forth above and shown by the record in this case do not conform to this provision of the constitution.
    This section of the constitution clearly requires the formal passage of every bill by yea and nay vote entered upon the journal. In the present case there was no vote taken upon the question, “Shall the bill be passed?” but only upon the question, “Shall the report of the conference committee be adopted and concurred in?” Plaintiff in error submits that this was not a compliance with the constitutional requirement, and that therefore the bill was never regularly passed.
    III. If, however, the bill be valid, the question then arises as to the number of members of council and the number of wards authorized by the code. This involves the construction of section 116, which is as follows:
    
      “Section 116. The legislative power of every city, shall be vested in, and exercised by, a council, composed of not less than seven members, four of whom shall be elected by wards and three of whom shall be elected by the electors of the city at large; provided, that for the first 20,000 inhabitants in any city, in addition to the original 5,000, there shall be two additional members of council elected by wards, and for every 15,000 inhabitants thereafter there shall be one additional member similarly elected. Provided, further, that whenever the total number of members of council is fifteen or more, one member of every five-shall be elected at large, and the remainder from wards. Members of council shall serve for a term of two, years and until their successors are elected and qualified.”
    There is no ambiguity in this section. The method fixed by it of determining the number of members of council is complicated,, but the expression of that method is clear.
    It provides for a minimum council of seven, four of whom shall be elected by Avards, and three of whom shall be elected at large. It next provides that for the first 20,000 inhabitants in any city, in addition to. the original 5,000, there shall be two additional members of council elected by wards. It is apparent that this provision fixes definitely the number of members for a city of 5,000 inhabitants at seven, and continues that number up to a city containing 25,000, when the council shall consist of nine members.
    In the first group of cities from 5,000 to 25,000, there are four councilmen to be elected-by wards and three at large. In the second group of cities of 25,000, there are six members elected by wards and three elected at large.
    
      From this point on, the statute provides that there shall be one additional mémber elected by wards for every additional 15,000 inhabitants, until the total number of members of council is fifteen or more, and that thereafter one member of every five shall be elected at large, and the remaining four of every five shall be elected by wards.
    [Counsel here insert in their brief the table to be found in Judge Burket’s opinion infra. — Reporter.]
    It will be seen by this table that a city of the size of Cincinnati should have a council consisting of twenty-nine members, twenty-four elected by wards and five at large, and that therefore the city should be 'redistricted into twenty-four, and not twenty-six, wards, as provided for in the resolution in this case.
    Without going through the entire table, the same result is reached by a simple analysis of the population, 325,000. For the first 25,000 there are to'be six members elected by wards and three at large or a total of nine. For every 15,000 thereafter there shall be one additional member, and, three hundred divided by fifteen giving a quotient of twenty, there áre twenty additional members, in all, twenty-nine members. Now, the subdivision of this total of twenty-nine is provided for by the last proviso of this section, declaring that whenever the total number of members of council is fifteen or more one member of every five shall be elected at large, and the remainder from wards.
    For a council of twenty-five members this would mean that five should be elected at large and twenty by wards. For a council of twenty-nine, this number not being sufficient to add a member at large, there are four added to twenty, and the total membership of twenty-nine is divided into five members elected at large and twenty-four by wards.
    No other construction of this section will give full force to every proviso contained therein, and it is respectfully submitted that in a city of the size of Cin cinnati there should be a council of twenty-nine members of whom five should be elected at large and twenty-four by wards; and that, further, the city «f Cincinnati should be re-districted into twenty-four wards, and not twenty-six, and the committee appointed for the purpose of redistricting the city into twenty-six wards should be restrained from expending any funds appropriated for that purpose, such expenditure being clearly unauthorized by law and a misappropriation of the corporate funds within the meaning of sections 1777 and 1778.
    
      Mr. Chas. J. Hunt and Mr. Wade H. Ellis, corporation counsel, for defendants in error.
    1. The grounds upon which plaintiff in error claims that the act in controversy in this case is unconstitutional are not well taken. We need not argue again the questions of classification under the constitution of Ohio. They may be regarded as settled.
    Taking the Toledo and Cleveland cases, in the 66 Ohio State, to the utmost limit to which they may be said to go, we find nothing in the act in controversy that offends against the principle laid down in these decisions. Even if it be true that there can be no classification of municipalities in this state, except that which divides them into cities and villages, the new municipal code is constitutional, for that is the only division it makes.
    But plaintiff in error says that this act introduces a new method of classification and establishes “a variety of governments for cities,” authorizing the council in each to determine into which class it desires to be placed. We submit that there is no variety of governments authorized. There is only one form oPgovernmeni for each city and one form for each village in the state. The fact that one city may have a board of public service, consisting of three members, and another may have a board of public service, consisting of five members, does not produce different forms of government in the two cities. Each city is required to have a board of public service. The objections to special acts, applying to particular grades and classes of municipalities, and arising before the passage of the new code, went to the point that they contravened either section 26 of article 2 or section 1 of article 13 of the constitution. The present act clearly does neither. The contention of plaintiff in error must be founded" upon section 6 of article 13, which ordains that the general assembly shall provide for the organization of cities and incorporated villages by general laws, and to sustain his contention this provision must be held to mean that, not only shall the legislature provide the same form of government for each city and the same administrative boards, but that each board must have the same number of members. We submit that, though it be assumed that each city must have a board of public service and a board of public safety, if such boards are established in any city, yet, it can not be said that one city having a board of three members and another having a board of five members, each with the same powers and duties, is organized under a different form of government. Guckenberger v. Henderson, 66 Ohio St., 692.
    
      IT. The pleadihgs, as stated by the brief of counsel for plaintiff in error, set forth clearly the manner in which the act in controversy was passed. It was passed just as the general assembly of Ohio has always passed bills reported from a conference committee. It was passed in accordance with the rules •of both houses and the uniform custom of the legislature. This is set out in the answer and admitted by the demurrer. The authorities are all one way upon the proposition, that, where a bill has passed one house of the legislature, and subsequently passed the other house with amendments, and, in each instance, by constitutional majority and by a yea and nay vote, the only questions thereafter arising' upon said bill are either, first, that the house in which the bill originated shall concur in the amendments, or, second, that the house which passed the bill with the amendments shall recede from its action upon the amendments, or, third, that both houses shall concur in the report of a conference committee appointed to adjust their differences. The cases upon which we submit this question arise in states having constitutional provisions identical with our own.
    The constitution of Ohio, article 2, section 9, requires that, “on the passage of every bill, in either house, the vote shall be taken by yeas and nays and entered upon the journal; and no law shall be passed in either house without the concurrence of a majority oí all the members elected thereto.” In the present instance, this requirement was fully complied with. On the passage of this act the vote was taken by yeas and nays, in each house and entered upon the journal, and a majority of the votes in each house were recorded in the affirmative.
    The report of the conference committee, adjusting the differences between the two houses, was, likewise, concurred in by a yea and nay vote, and by a majority in each house. To construe this provision of the constitution, as requiring that the question, “Shall the bill pass?” must be again put after it has already passed each house, and the only question is upon the one house concurring in the amendments of the other, or upon both houses concurring in the report of a conference committee, would be to require a vain thing and would be to regard the bill as a new bill every time it was amended in any way. Nelson v. Haywood Co., 20 S. W. Rep. (Tenn.), 1; McCullough v. State, 11 Ind., 424; State v. Buckley, 54 Ala., 612; People v. Chenango Co., 8 N. Y., 317; Norman v. Kentucky Board of Managers, 20 S. W. Rep. (Ky.), 901.
    But it is admitted in the case at bar that this act was passed in accordance with the rules and the uniform practice of the general assembly. We submit, therefore, that, even if the mode of procedure were not strictly in accordance with that prescribed by the constitution, the bill, nevertheless, became a law. Fordyce v. Godman, 20 Ohio St., 1; Miller v. State, 3 Ohio St., 475; Division of Howard County, 15 Kan., 194.
    III. Cincinnati, a city having a population of 326,000 inhabitants, must have twenty-six wards, twenty-six councilmen elected ’ by wards, and six elected at large, a total of thirty-two councilmen.
    
      
      
    
    If we examine sections 1655a.., 1672, 1672-6 and 1545-89, Revised Statutes, we find that in cities and villages, divided into wards, a specific number of councilmen must be elected from each ward, but as under •Section 1628, Revised Statutes, the number of wards in a city or village is left to the discretion of council, the number of councilmen is therefore fixed by council itself. No court, however closely it may have hewn its way back to the constitution, has ever intimated that the vesting of such discretion in the council by proper laws, was unconstitutional. If, under the new ■code, the number of council is in any way dependent upon the action of council itself, there would be nothing unconstitutional in so doing, and in constructing the new code, if we find that such discretion is left in council, we can not assume that its exercise is restricted except as we find restrictions by express-terms or necessary implication therefrom.
    The general clause of section 116 of the new code,, gives.a discretion to council as to the maximum number. The limitations are found in the provisos.
    The sections of the new code pertaining to the number of councilmen, the manner of their election and the number of wards, are sections 116 and 117. Reversing present methods under which the number of members in council is regulated by the number of wards, the new code provides in section 117 that the number of wards is to be regulated by the number of councilmen to be elected by wards; and, further provides, that all councilmen are to be elected by wards or at large. Section 116 of the new code fixes the number of councilmen at a “not less” or minimum number, limiting the maximum number in part by an' express direction as to the number of members to be. elected by wards, and in part by the proportion which the number of members elected at large must bear to the maximum number of councilmen.
    Admitting, as we all must, that there is at least apparent ambiguity or conflict in the different clauses and provisos of the section, (116 and 117) we must,, if possible, in accordance with the rule laid down in Medical College of Ohio v. Zeigler, 17 Ohio St., 52, at page 67, so read the act that the construction adopted will be fairly deducible from a full consideration of the whole section and such as can be made to harmonize with the main purposes of the act and all the provisos therein. When we have obtained such construction, then we have obtained the true construetion. Subordinate to this governing principle, there are other rules of construction.
    If some clauses are clear and others ambiguous, the ambiguous clauses musttgive way, if necessary, to the operation of clauses clearly expressed; for the legislature must be presumed to be consistent with itself, and if in one clause the legislature has expressed its intention clearly, it must be presumed that it is still of the same intention until it appears that such intention iis modified. Endlich on Statutory Construction, section 182; Wayman v. Southard, 10 Wheat. (U. S.), 30 Minis v. United States, 15 Pet. (U. S.), 443.
    The maxim “Expression of one is the exclusion of the other” in connection with the analogous rule that the expression of a particular intention modifies the general intention, applied to the case at bar, would limit the increase in the number of councilmen to those conditions under which the statute provides specifically for such increase.
    All of these rules are subordinate to a construction under which effect can be given to every word, phrase and punctuation mark of the act, consistent with the general purposes of such act or section. Remembering, however, that the meaning of the law is the law itself as finally passed.
    The purview or enacting clause of the section under consideration as distinguished from its provisos is: “The legislative power of every city shall be vested in, and exercised by, a council, composed of not less than seven members, four of whom shall be elected by wards and three of wham shall be elected by the electors of the city at larga” Endlich on Statutory Construction, section 185%; The San Pedro, 2 Wheat. (U. S.), 132.
    
      The phrase “Four of whom shall be' elected by wards and three of whom shall be elected by the Rectors of the city, at large” manifestly qualifies the minimum seven and while a specific direction as to the election o»f such serven, the number seven, except as a minimum, applies only to cities of less than 25,000 inhabitants; for as to cities of more than 25,000 inhabitants, express provision is made in the subsequent clauses of . the section. ■ In other words, the provisions applicable to cities of more than 25,000 inhabitants, to which the number seven is applicable only as a minimum, negatives or excludes the application of seven as a mere minimum to cities of less than 25,000 inhabitants, thereby as to such cities, making seven a maximum as well as a minimum number of councilr men, with express directions as to the method of their election, i. e., four by wards and three at larga
    In cities of more than 25,000 inhabitants and less than 40,000, the four to be elected by wards is a mere minimum as to such councilmen for there is an express provision as to the election of two additional councilmen by wards, and such express provision as to two, is also necessarily a limitation. In like manner for cities of over 40,000 inhabitants, the provision for additional members to be similarly elected, i. e., by wards, is also a limitation.
    As to all cities of less than 115,000 inhabitants, the minimum to be elected at large in view of the express provision in the second proviso for an increase in the number of such members, negatives or excludes the theory of any increase in such number upon any other conditions than those prescribed in the proviso-
    Construing the section in accordance with, these rules, we have for a city of 115,000 inhabitants, twelve councilmen elected by wards and three at larger a total of' fifteen. We then come within the operation of the second proviso' and thereafter the number of councilmen at large is ascertained by reference to the second proviso. The rule, in accordance with which the councilmen at large in cities of less than 115,000 inhabitants was limited to three, being that the second proviso providing specifically and by results for the increase in the number of such councilmen excludes the intention of any increase in such number except under the conditions of such second proviso, when we come within such conditions as we manifestly do when a city has a population of over 115,000 inhabitants, then such rule has no application to the number three, because such number for councilmen at large in cities of 115,000 is a mere minimum, as provided in the purview of the section.
    Starting again with cities of 115,000 inhabitants, we increase the number of councilmen elected by wards in accordance with the first proviso. We apply the rule of proportion found in the second proviso in order to find the number of councilmeii to be elected at large. It is no longer necessary to consider the required •minimum “three” for that is provided as a minimum in the conditions under which- the second proviso is applicable, i. e.,- when the number of council is fifteen or more. One in fifteen or more is not less than three. No increase in councilmen at large results from the application of this required rule of proportion until we reach a city of 190,000 inhabitants, when, having by the first proviso seventeen councilmen elected by wards and a minimum of three elected at large, we have at least twenty councilmen altogether; but the rule of proportion requires four members elected at large, making the total number of councilmen twenty-one. The phrase “and the remainder from wards” in the second proviso is a mere appendix and in connection with the verb of the proviso “elected” is a mere recital of a necessary result;, for as section 117 provides that all members of council are to be elected at large or from wards, those that are not elected in one way must be elected in the other. If under any construction we find the number to be elected at large, all other councilmen must be elected from wards. The word “remainder” undoubtedly refers to the other part of the whole but does not require any particular method in the ascertainment of what may be such whole, it may be certain by express terms, or it may be certain because it is capable of being made certain under the rules and conditions given. That is certain which can be made certain.
    Proceeding further with cities as they increase in population, under the section as construed under these rules, we find that a city of 190,000 inhabitants has increased its councilmen elected at large, to four, a city of 250,000 inhabitants would increase such number to five, a city of 310,000 inhabitants to six and a city of 370,000 to seven.
    Cincinnati having more than 325,000 inhabitants and less than 310,000 would have twenty-six councilmen elected by wards and six at large, a total of thirty-two.
    If we apply the section as construed under legal principles to Cincinnati alone, a less complex but no less correct construction would produce the same result.
    The purview of the section, as to Cincinnati, a city of 326,000 inhabitants, fixes seven as the minimum number of councilmen, at least four of whom are to be elected by wards and three at large. No maximum number of councilmen is prescribed, such maximum number or the exact number is to be ascertained from the provisos. This proposition is conceded by plaintiff in error.
    There are two classes of councilmen to be elected, councilmen by wards and councilmen at large. We find two provisos. Roth provisos are presumptively applicable to the purview of the section and independent of each other. The first proviso, by its express terms, applies only to councilmen elected by wards, and fixes the number of such members in Cincinnati at twenty-six. That subject-matter seems to have been completely provided for. The second proviso, therefore, in any orderly statement, would naturally and logically apply to the only other subject-matter for which provision is to be made, and to that exclusively; such other subject-matter being councilmen to be elected at large. Consistently with the minimum prescribed in the purview of the section, this second proviso provides for a definite increase in the number of such councilmen. This proviso as read by both the plaintiff in error and defendants in error, is in substance iliat the number of members elected at large is one-fifth of the nearest multiple of five below the total number of councilmen. In other words, if in dividing the aggregate number of councilmen by five, a fraction would result, such fraction is to be disregarded.
    Applying these rules, a very simple mathematical process gives us the number of councilmen - to be elected at large.
    The first proviso gives us twenty-six councilmen to be elected by wards.
    Let X equal the number of councilmen to be elected at large.
    
      26 + X would equal the total number of councilmen.
    The second proviso requires that
    26 + X
    X =-
    5
    Therefore:
    5 X =-- 26 + X
    4 X = 26
    X = 6|
    Disregarding the fraction, we have six councilmen to be elected at large. These with the twenty-six to ¡be elected by wards make a total of thirty-two councilanen.
    The determination of the number of councilmen to be elected by wards in the city does not require us to consider the second proviso, but as we desire to fix the number of councilmen to be elected at large and to show that such number is consistent with the entire section, we have gone into the construction of the whole section.
   Burket, C. J.

The contention of plaintiff in error to the effect that the act in question was not passed by the general assembly is not well taken. The allegations in the answer, and admitted by the demurrer, show a legal passage of the act.

It is further contended by plaintiff in error, that the act is invalid, in that it contravenes the constitution of this state, being, as is alleged, a special act conferring corporate power, and a law upon a general subject, not having a uniform operation throughout the state.

We regard the act as general, and not special, and as having a uniform operation throughout the state. The power conferred upon all cities alike to provide by ord inance for the number of members to constitute the board of public service and the board of publie safety, within the limits fixed by the act, does not render the act special, nor does it introduce a special classification. All cities have exactly the same powers, but they may exercise those powers by ordinance within the limits of the act, as may be best for the respective cities.

While all cities must have the same powers they cannot be required to exercise them in the same manner. Uniformity of powers, does not imply uniformity of ordinances.

The answer to the petition as to the passage of the act, and as to its validity, therefore states a good defense to the petition, and as to these matters the demurrer to the answer was properly overruled.

The question remains as to whether the answer states a good defense to the petition as to the number of wards into which the city of Cincinnati .should be divided under the act in question.

The resolution requires the city to be divided into» twenty-six wards, and plaintiff avers in his petition, that this is not the number required by the act in question, because the population of the city at the last federal census was 325,902, but he fails to state the-number of wards which that population requires. The answer avers the correct number to be twenty-six.

Section 117 of the act provides that the council* shall subdivide the city into wards equal in number to the members of council in said citv who are to be elected from wards therein. Therefore the number of members of council to be elected from wards must be first ascertained, and that will determine the num-her of wards.

Section 116 of the act provides as to the number of members, and is as follows:

'“Section 116. The legislative power of every city shall be vested in, and exercised by, a council, composed of not less than seven members, four of whom shall be elected by wards and three of whom shall be elected by the electors of the city at large; provided, that for the first 20,000 inhabitants in any city, in addition to the original 5,000, there shall be two additional members of council elected by wards, and for every 15,000 inhabitants thereafter there shall be one additional member similarly elected. Provided, further, that whenever the total number of members of council is fifteen or more, one member of every five shall be elected at large, and the remainder from wards. Members of council shall serve for a term of two years and until their successors are elected and qualified.”

By another section, at least 5,000 inhabitants are required to constitute a city, and by the above section a city of 5,000 and under 25,000 inhabitants, will have seven members of council; no more and no less. Where there are 20,000 inhabitants in addition to the original 5,000, two more are allowed, making nine for a city of 25,000, and under 40,000 inhabitants. After passing the 25,000 mark, it is provided that for every 15,000 inhabitants, one additional member shall be elected. Take said first 25,000 from the total population of the city 325,902 and there will remain 300,902. This divided by 15,000, gives twenty members to be elected by reason of said 300,902 inhabitants. The first 25,000 gave nine members, which added to the twenty, makes twenty-nine in all, as the total for the whole city

Now as to the manner of election. The first 25,000 inhabitants gives nine members, six to be elected from wards, and three in the city at large. For every 15,000 after the first 25,000 one member is added'to be elected from a ward; but whenever the total number of members reaches fifteen or more, four out of every five are to be elected from wards, and one at large, .so that only three would be elected at large so long as the number of members is under twenty, but at twenty, four would be elected at large, and at twenty-five members, five would be elected at large, and it would stand at five until the number of members would reach thirty, but as the total number in Cincinnati is only twenty-nine, only five can be elected at large, and the remainder, twenty-four, from wards.

The same result is reached in another way. The first 25,000 inhabitants gives nine members, six to be elected from wards and three at large. When the number of members reaches fifteen, one out of every five, is to be elected at large. Fifteen divided by five gives three to be elected at large. To entitle a city to fifteen members, would require at least 115,000 inhabitants. After passing 115,000 inhabitants, with fifteen members of council, the next five members would require 75,000, which added to the 115,000, would make 190,000 inhabitants, and out of these five members, one would be elected at large, which added to the three, would make four to be so elected out of twenty members. Another 75,000 would give five more members, one to be elected at large, which added to the four would make five, and consume 265,000 inhabitants, which would leave only 60,902 inhabitants, only enough for four more members, and therefore the number to be elected at large would remain at five.

Those to be elected from wards would be twelve out of the first fifteen members, four out of the next five members, four out of the succeeding five members, and the four members given by reason of the last 60,902 inhabitants, making twenty-four in all to be elected from wards, and five at large, the total being thus twenty-nine.

The same result is reached in any correct manner of figuring. The total number of members must be first ascertained without reference to the manner of their election, and when thus ascertained, the total number is twenty-nine.

The section of the statute in question is so constructed that the same result is attained whether the total number of members be divided by five, and the quotient five, taken as the number to be elected at large, and the remaining twenty-four as the number to be elected from wards, or whether the original three to be elected at large be added to the two to be elected at large out of the ten next after the first fifteen.

This construction and manner of calculation is fully warranted by the language used in the section, ¿nd is undoubtedly what the general assembly intended. It is the plain common sense of the section, without resorting to algebraic equations, or fine spun theories.

The calculation of counsel on both sides agree until the number of members reaches nineteen, and 175,000 inhabitants are consumed. The next 15,000 inhabitants are entitled to but one member, but defendants in error count two, one to be elected at large, and one from a ward. This is an error of one. The same error is made as to the 15,000, from 235,000 to 250,000, two members are given for the same 15,000 inhabitants, one to be elected at large and one from a ward. The same error occurs as to the 15,000 from 295,000 to 310,000, two members are counted for the same 15,000 inhabitants. In this way six members are counted for the same 45,000 inhabitants, while the section authorizes but three, one for each 15,000. Of the three members thus erroneously injected into the count, two are counted to be elected from wards, making twenty-six, when the correct number is only twenty-four, and one is counted as being elected at large, making six, while the correct number is only five.

To sustain this erroneous count counsel for defendants in error invoke the law as to provisos in statutes, and cite Wayman v. Southard, 10 Wheat., 30, and Minis v. United States, 15 Pet., 443, 445. But these cases are not .of sufficient weight to induce this court to be misled in the construction of this statute. The controlling rule of construction is to ascertain the intent of the. general assembly, and when that is clear, from the language used, other rules of construction are not regarded.

In this section the word “provided” is used twice, and hence it is argued that there are two provisos in the section, that each must in some manner modify the enacting clause, and that the last proviso cannot modify the first.

“A proviso is generally used in a statute to qualify, limit or restrain the operation of general terms contained in a previous part of the section or act, and not to introduce a distinct and independent proposition.” Allen v. Parish, 3 Ohio, 187, 193. It will be noticed that this rule as to provisos does not go to the extent of holding that a second proviso cannot modify a preceding one.

In 23 Am. and Eng. Ency. Law’- (1 ed.), 436, the rule is stated thus: “The proviso should be- confined to what immediately precedes, unless the contrary intent clearly appears.” Under this rule the second proviso in this section, wrnuld modify the first, because the first immediately precedes the second.

But these rules after all are intended only as aids to the court in ascertaining the intent of the general assembly, and should not be used to render that uncertain, which Avould otherwise be reasonably certain.

What is called the first proviso, does not in any manner qualify, limit or restrain that w’hich precedes it, but on the contrary it is an enactment in addition to what precedes. Up to the first proviso a city is given a council of seven members, no more, no less, four to be elected from wmrds, and three at large. The first proviso does not change this, but permits it to stand in all cases, and as the population increases makes an additional enactment, giving two more members up to 25,000 inhabitants, and then adds a further enactment giving one member for every 15,000 additional inhabitants. It is therefore clear that the first proviso is not strictly a proviso, but an additional enactment. That enactment having laid dowm a rule for ascertaining the number of members of ■council in every city in the state, is qualified, limited and restrained, as' to the manner of election, by wdiat is called the second proviso, so as to require one member out of every five, after fifteen, to be elected at large, and the remainder by wards.

' It is therefore clear that the city of Cincinnati is entitled to a total of only twenty-nine members of council, and that only twenty-four are to be elected from wards, and that the city must, therefore, be sub divided into tw-enty-four Avards. The ansAver as to the number of wards is therefore not a defense to the petition, and the demurrer thereto should have been sustained, and the court of common pleas erred in ■overruling it, and also erred in rendering judgment in favor of said defendants beloAV. And the circuit court erred in affirming the judgment of the common pleas.

In argument counsel for plaintiff in error presented the following table, Avhich has been carefully examined by the court and found correct. As it may be useful to the cities of the state, the same is here inserted.

For the errors above pointed out. both judgments of the courts beloAV will be reversed, the said demurrer to the answer sustained, and the cause remanded to. the court of common pleas for further proceedings according to law and this opinion.

Judgments reversed and cause remanded.

Spear, Dams, Si-iauck, Price and Crew, JJ., concur  