
    The State of Ohio ex rel. the Attorney General v. Beacom et al.
    Aci of March 16, 1891, is a special act conferring legislative power (in the city of Cleveland) — Is repugnant to section 1 of article 18 of constitution — Constitutional law.
    
    The act of March 16, 1891, entitled: “An act to provide a more efficient government for cities of the second grade of the first class,” (88 Ohio Laws, 105) and the acts amendatory thereof, being special acts conferring corporate powers, are repugnant to section 1 of article 13 of the constitution. Stale ex rel. Knisely et al. v. Jones et al., ante, 453.
    (Decided June 26, 1902.)
    In Quo Warranto.
    The defendants are acting as, and cíáim to be, respectively, director of law, director of public works, director of police, director of fire service, director of accounts, and director of charities and corrections of the city of Cleveland. Together they claim to be the board of control of that city, with authority to control all the property of the city, including the money raised by taxation. The petition alleges that said claimed authority is not vested in them by any valid law. A judgment of ouster is prayed for.
    The defendants answering admit that they claim and are exercising authority as charged in the petition, and they allege that such authority is lawfully conferred upon them by an act of March 16, 1891, entitled “An act to provide a more efficient government for cities of the second grade of the first class” (88 Ohio Laws, 105), and the several acts amendatory thereof. The case is submitted on demurrer to the answer. The questions presented arise out of the operation of the act which, by its terms, is limited to “cities of the second grade of the first class,” it being admitted that the act confers corporate poAvers, and that Cleveland, being the only city of the second grade of the first class in the state, is the only city in Avhich the act presently operates.
    
      Mr. John M. Sheets, attorney general; Mr. G. D. Gibbons and Messrs. Goulder, Holding & Hasten, for plaintiff.
    We submit that the acts under consideration and those supplemental thereto violate Secs. 26 and 27, Art. 2, Sec. 1, Art. 13, and Sec. 11, Art. 3 of the constitution.
    Constitutionality of an act is to be determined by nature of subject matter.
    The title of the act is: “To provide a more efficient government for cities of the second grade of the first class.”
    The declaration that “Under Sec. 26 of Art. 2 of the constitution, the constitutionality of an act is to be determined by the nature of its subject-matter, its operation and effect, and not alone by its form,” lias been so repeatedly made that it Avould be superfluous to cite the many cases wherein it is to be found. The fact that the Avord “cities” is used is not, therefore, conclusive, if at all consequential. Railway v. Martin, 53 Ohio St., 386; Hixon v. Burson, 54 Ohio St., 470.
    From the decisions of the court Ave assume it to have been settled that Avhenever it appears that the object in employing language used is to give the act a general character and thereby attempt to obviate any constitutional objection, while intending to limit its operation to one city, the means adopted will fail to accomplish the object intended.
    
      This court has held that the legislature may classify cities, and that a statute in relation to a class may be treated as a general law within the meanings of the provisions of the constitution, but it has also uniformly held that this right "of • classification cannot be exercised to evade the provisions of the constitution. Costello v. Wyoming, 49 Ohio St., 202; Cincinnati v. Steinkamp, 54 Ohio St., 284; State v. Cowles, 64 Ohio St., 162.
    It has in many cases also held that the provisions of the constitution are mandatory and not directory. Citation of these cases is needless. ' Iúdeed, to cite to the court its own decisions upon the questions herein involved, is unnecessary,- and is only done in recognition of a method of argument usually necessary to apprise opposing parties of authorities relied upon.
    That the' subject-matter of these acts is of a general nature cannot be questioned after the many declarations of this court. That they were specially designed for the city of Cleveland is apparent.
    The session laws and the revised statutes both indicate that the laws were designed for Cleveland alone. It is true we do not have in this case an act whose title contains the name of the city for which it Avas intended, as in State v. Pugh, 43 Ohio St., 98, but it is to be remembered that these laws are published under authority of the legislature, and we think their publication in manner and form as provided by law is one of the indices 'pointing — feebly it may be — to the legislative intent. In any event, it is a circumstance to be considered.
    The legislature may provide for the organization of cities by general laws, but may it do so by laws general in form, which cannot, in the very nature of things, have uniform operation throughout the state in cities of the class specified? Can the legislature arbitrarily declare that every city of that grade and class shall have the same number of representatives in its legislative body?
    The distinction between equality of representation in a body in which all political divisions are concerned and equality of representation of citizens in different political bodies is, of course, apparent, but it is contrary to the spirit of our people and their laws that in one section of the state a certain number of citizens shall be entitled to a representative in its legislative body, and in another section a representative in such body can only be obtained by a larger number of citizens, where both municipalities are declared by law to be in the same class and of the same grade. State v. Dudley, 1 Ohio St., 442.
    Judge Sayler, in State v. Cincinnati, 6 Dec., 196; 3 N. P., 127, discusses the question of dividing territory into wards and the giving of wards equality of representation.
    It is to be presumed that the legislature, having in mind the policy of the state, Avould not pass a general law having reference to various cities of the same grade and class and make a limitation upon the number of members comprising their legislate bodies, or grant to the inhabitants of one city the right to a representative in such legislative body based upon a greatly disproportionate number of electors.
    This court recognized the impossibility of the legislature providing in a general law for the division of cities in State v. Pugh, 43 Ohio St., 98.
    The impossibility of the operation of this law upon any other city than Cleveland is evidenced by the fact that it provides for the election óf councilmen from the ten districts at the first annual municipal election after the passage of the act, to-wit, the first Monday in April, 1891. The election in the city of Cleveland in April, 1891, was had under the provisions of this statute, but by no possibility could an election thereunder have been held in any other city.
    Under the provisions of Secs. 1547, 1548, 1617, 1618, 1619, and 62 Rev. Stat., no city could possibly have changed its grade from any lower class until after November 20, 1891. Hayes v. Cleveland, 55 Ohio St., 117; Hermann v. Cincinnati, 6 Circ. Dec., 151; 9 C. C. R., 357; affirmed by Supreme Court, 52 Ohio St., 676; State v. Maxfield, 6 Circ. Dec., 11; 9 C. C. R., 26.
    The print of that special legislation inhibited by the constitution is in other sections of the act, to which we will call the attention of the court when we undertake to discuss the duties and powers of the defendants, but we may here call attention to Sec. 80.
    This provision could not by any possibility apply to corporations which might thereafter enter this grade and class.
    It is further to be considered that these acts deprive and deny the citizens of Cleveland local self-government accorded to other municipalities, and that the exercise of such power in thus arbitrarily dividing cities into wards and districts is administrative and not legislative. It is a withdrawal by the legislature and a usurpation of powers theretofore always allowed to the people of the localities concerned in the exercise of the right of local self-government. State v. Commissioners, 54 Ohio St., 333; Seifert v. Weidner, 12 Circ. Dec., 506; 12 C. C. R., 1.
    Although it is evident in the recent decisions of this court that it has in mind the evils resulting from the attempted evasion of the provisions of the constitution, we cannot refrain from citing you to the opinion of Scott, J., in Lehman v. McBride, 15 Ohio St., 573, approved by the present chief justice in State v. Ellet, 47 Ohio St., 90.
    ' That frequent attempts in recent years to evade these salutary provisions of the constitution has made these evils, which were apparent to the framers of the constitution, greater and more ramifying in their effect, is so widely known and is so clearly demonstrated in the many acts of assembly which have been passed concerning cities of the state, as to be worthy of the judicial attention which this court has recently given to such legislation.
    These attempted evasions have had the result of having councilmen in some cities elected from wards, in others from districts, some for one year, others for two and three years. Nor has the legislative branch limited its attempted evasions wholly to classification provided by law, but it has attempted sham classifications in several ways, among others, by legislating for cities by fixing population, which latter character of legislation the court has declared to be in conflict with the constitution. State v. Schwab, 49 Ohio St., 229.
    Grave doubts may well be, and have been, entertained by this court as to the constitutionality of the method of classifying cities for purposes of general legislation, but, in all cases where it has been evident that such law applies to one city or may not or cannot be of uniform operation throughout the state, it has been held to be unconstitutional; and the mere fact that the city has not been named has been held not to change the character of the act. State v. Ellet, 47 Ohio St., 90; Hixson v. Burson, 54 Ohio St., 470; State v. Bader, 54 Ohio St., 666; State v. Davis, 55 Ohio St., 15; Hubbard v. Fitzsimmons, 57 Ohio St., 436; Mott v. Hubbard, 59 Ohio St., 199; State v. Buckley, 60 Ohio St., 273; State v. Brown, 60 Ohio St., 462; State v. Cowles, 64 Ohio St., 162; State v. Ketter, 65 Ohio St., 558.
    As we understand, the court has also decided in like manner and for the same reasons Cincinnati v. Fenner, 65 Ohio St., 615, unreported; Cincinnati v. Willen, 66 Ohio St., 633, unreported.
    The circuit court of Cuyahoga county has followed in the wake of the Supreme Court in State v. Kurtz, 11 Circ. Dec., 705; 21 C. C. R., 261.
    The act of March 16, 1891, was tinkered several times during the session, and it was provided in a supplemental act passed April 10, 1891 (88 O. L., 304), to which we have heretofore called attention, that in the temporary absence of the mayor and during his temporary disability these several defendant directors, beginning with the director of law, should, under the designation of “Acting Mayor,” have power to perform the duties of mayor during such absence or disability. It is also further provided that if the mayor die or remove his residence during his term of office, these several directors, in the order named, commencing with the director of law, shall become successor for the unexpired term. We submit that this provision is a violation of Art. 2, See. 27 of the constitution, which provides that the appointing power shall not be exercised by the general assembly except as prescribed in the constitution and in the election of United States senators.. State v. Kennon, 7 Ohio St., 546.
    The legislation by special acts confers corporate powers. State v. Cincinnati, 20 Ohio St., 18; State v. Cincinnati, 23 Ohio St., 445.
    It is apparent that the act confers new powers upon.the city of Cleveland. Before calling attention to the special nature of the act as exhibited in its provisions defining the duties of the directors as heads of departments and as members of the board of control, it may be well to recall to the attention of the court the language of Owen, J., in State v. Pugh, 43 Ohio St., 98.
    In passing upon the authority of the legislature to enact laws relating to the confinement of criminals, see opinion in State v. Peters, 43 Ohio St., 629; Van Hagan, Ex parte, 25 Ohio St., 426; Cass v. Dillon, 2 Ohio St., 607.
    It is evident in many sections of. this act that Cleveland alone was having a city government provided by these acts, and .was being clothed with new, novel and additional corporate powers. This is evident even in the repealing sections, wherein legislation affecting the city of Cleveland only was wiped out.
    Hence, we submit that these acts and those supplementary thereto and amendatory thereof, are unconstitutional, and for authority for the correctness of our assertion we have Atkinson v. Railway Co., 15 Ohio St., 21; Railway Co. v. Commissioners, 27 Ohio St., 14; State v. Mitchell, 31 Ohio St., 592; State v. Powers, 38 Ohio St., 54; Falk, Ex parte, 42 Ohio St., 638; State v. Pugh, 43 Ohio St., 98; State v. Smith, 48 Ohio St., 211; State v. Ander
      
      son, 44 Ohio St., 247; State v. Ellet, 47 Ohio St., 90; Commissioners v. State, 50 Ohio St., 653; Railway Co. v. Martin, 53 Ohio St., 386; Gaylord v. Hubbard, 56 Ohio St., 25; State v. Cowles, 64 Ohio St., 162; Hermann v. Cincinnati, 6 Circ. Dec., 151; 9 C. C. R., 357 (affirmed 52 Ohio St., 676); Cleveland v. Electric Railway Co., 60 Ohio St., 586.
    
      Mr. M. IT7. Beacom and Messrs. Baker, Payer, Gage &■ Carey, for defendants.
    Section 26 of Art. 2 has no application to this case. The scope of that section is stated in the syllabus of Ampt v. Cincinnati, 5 Circ. Dec., 356; 12 C. C. R., 119, affirmed in 56 Ohio St., 47.
    This act confers corporate powers. Of course it does. That is the purpose for which it was passed.
    Is the act of March 16th a general law? Under the rules laid down by this court to the present time, this law is general. In form the law was enacted “for cities of the second grade of the first class.” That is, of course, not conclusive. The test is, can it be operated in all cities of the second grade of the first class? State v. Cincinnati, 52 Ohio St., 419, 448; State v. Cowles, 64 Ohio St., 162.
    Relator claims that other cities coming into the grade and class of Cleveland could not avail themselves of this law, and he gives therefor two reasons
    First — Certain words and phrases used, make it inapplicable elsewhere.
    Second — - Section 2 could not be applied to other towns and cities coming into the second grade of the first class.
    Preliminary to a consideration of these propositions, defendants call, attention to what they deem in relator’s brief a constantly recurring misapprehension of the rule of classification. Relator seems to think the rule to be that this law would be invalid if “the city of Cleveland alone was in contemplation when it was passed.”
    Of course Cleveland alone .was in contemplation when this law was passed. No other city of the second grade of the first class existed at that time. The law had its origin in Cleveland, was prepared by Cleveland lawyers, and at the time of its passage no other town was in contemplation. Most laws owe their passage to a particular case, or a particular incident. This is often true even of penal laws. It is unnecessary to call the attention of this learned court to relator’s misapprehension of the rule, and defendants comment upon this matter in this place in order that relator may understand unmistakably what we claim the law to be. State v. Cincinnati, 52 Ohio St., 419; State v. Pugh, 43 Ohio St., 98.
    The provision that “the present council in such cities shall continue as now constituted until the next annual municipal election,” in Sec. 86, .might very simply and plainly be held to mean, the council which was the existing one in any city at the time it entered the grade and class, and, too, the same could be said of the word “heretofore,” as used in Sec. 51, and a like construction, not a strained one either, can be placed upon every word and phrase and provision in this act to which objection is made on the ground that because of its form it can be applied only to existing cities of the grade and class. In the case of State v. Toledo, 48 Ohio St., 112, the effect of the presence in a law of this character of the phrase “before the next general Or municipal election after the passage of this. act,” was under consideration. The law was held valid by this court. The reason for so holding does not clearly appear. We can only say that the law was held valid with that provision in Sec. 3. Subsequently, Merrill v. Toledo, 3 Circ. Dec., 524; 6 C. C. R., 430, involved the same question as State v. Toledo, supra, and the court examined what had been determined by the Supreme Court in the former case. The circuit court said that the Supreme Court had not held that the language in that statute “before the next general or municipal election after the passage of this act” meant those immediately thereafter in the year 1889 only, and the circuit court held in substance that such language was applicable for all future time, “so long as it (the law) remains in force.”
    We come to the reason given in relator’s brief for claiming that this act could not be applied to other cities coming into this class, which is: Section 2 could not be applied to other towns and cities coming into the second grade of the first class.
    And this we answer under the following two heads :
    First — The section could be applied to any other city.
    Second — It is immaterial whether it could be so applied or not, for these reasons:
    1. It deals with a local subject and is not necessarily general in its application.
    2. It is distinct from the remainder of the act in its subject-matter.
    3. The legislature provides expressly that each section shall stand alone and unaffected by invalidity in other sections.
    4. In examining the title of defendants to the offices which they hold and claim the right to hold only those sections under which they claim power will be examined.
    The section could be applied to any other city. Section 2 means no more than this, that every city of the second grade of the first class shall be divided into forty-two wards, and that these wards shall be arranged into eleven districts. It is not necessary in any case that wards shall be numbered consecutively, according to their location, and this is probably never done in any city. The mode here provided for electing members of the council is not a new thing in our statutes. It is found in the Revised Statutes of 1880. By section 1656 of these statutes, it is provided that in cities of the first grade of the first class, the board of aldermen shall consist of thirty members, to be elected by districts, and that such cities are hereby divided into five districts, as follows, etc. This section, as reported by the codifying commission, and adopted by the general assembly, was part of a general act relating to the organization of municipal corporations. It would hardly be said, by any one that this section was invalid, or, if so, that thereby the subsequent sections of the statutes relating to such cities were made invalid.
    By an act passed March 19, 1887 (87 O. L., 125), this section was amended so as to provide a board of aldermen for Cleveland, the members of which were elected by districts composed of designated wards. The validity of this act was attacked in the Supreme Court, and the act was sustained. State v. Ford, 17 Bull., 326; State v. Lawrence, 17 Bull., 326.
    It is provided by Sec. 1628, Revised Statutes, that the council may divide a municipal corporation into wards. Having the power so to do, if a new municipality becomes a city of the second grade of the first class, the council could divide the corporation into wards and into districts in exact accordance with the provisions of Sec. 2.
    The act of March 16 consists, in a general way, of three parts.
    1. Section 2 defines, councilmanic districts.
    2. Section 1 and sections 3 to 11, inclusive, relate to the council and its powers.
    3. Sections 12 to 86-2 deal almost exclusively with executive officers, their powers and duties.
    This division is not sharply drawn. In the portion subsequent to Sec. 11 are found here and there provisions relating to the council. But this is substantially correct.
    The law held invalid in State v. Pugh, supra, was so held on the ground that Sec. 9 thereof was local and special, applying to Columbus alone, and that, as the legislature would not have passed the act without that section, the whole act was therefore invalid.
    Clearly nobody would pretend that the legislature would not have passed the act of March 16 without section 2. It is foreign to the scope and purposes of the act, which were to provide administrative officers and clothe them with powers and impose upon them duties. The legislature would have undoubtedly passed this act, if every portion of it other than the part relating to administration were omitted. In fact, the history of this law, and also its contents, especially, when compared with the laws to which it succeeded, indicate clearly that there was no intent on the part of the legislature to modify in any material way the organization of the legislative branch or its powers or duties. The law purposed to get administrative officers who would be radically unlike, in the locating of responsibility for neglect of duty, from those from whom they were substituted. This purpose, so evident in the law, and so well known to those who understand its history, must be continually in the mind of the court in considering this case.
    The legislature provides expressly that each section shall stand alone and unaffected by invalidity in other sections.
    By the act of April 2, 1891 (88 O. L., 271).
    The legislature has therein declared that the validity of each section or part of the act shall be determined by the validity of the section or provision in question alone. And not only is this within the power of the legislature to declare, but it is a necessary rule of construction, where an act consists of many sections. If, for instance, it were held that the provision of Sec. 1656 of the Revised Statutes of 1880 was invalid, in which section a board of aldermen was provided for cities of the first grade of the first class, would any one say that by reason thereof the subsequent sections of that act, prescribing the duties and powers of the executive and administrative officers of cities of the first grade of the first class were rendered invalid?
    The municipal code of 1880 was passed as a whole, as a single act. Would any one claim that the validity of the whole was dependent upon the validity of every part? Alter v. Cincinnati, 56 Ohio St., 47.
    In examining the title of defendants to the offices which they hold and claim the right to hold, only those sections will be examined under which they claim power. State v. Baughman, 38 Ohio St., 455.
    The petition of relator attacks the title of defendants to certain offices, but the brief of relator proceeds on the theory that the petition asks that the city of Cleveland be ousted from the enjoyment of any of the provisions of the act of March 16th. The argument is made as though there were a petition to oust the municipality from having the offices, and not against the officers from filling those offices. This court, in State v. Newark, in 57 Ohio St., 430, has in substance said that the powers of the municipality cannot be tested in that way. The court in this present case will consider the sections which are claimed by defendants to be the source of their powers, and will not consider other sections.
    And now, returning to the proposition which we are considering, we claim that there is no unconstitutionality in any of the provisions granting these defendants, either individually or collectively, the powers which they exercise, under authority of the sections above enumerated of the act of March 16th, but, if, for instance, as claimed by relator, the powers given to the director of charities and correction by Sec. 66 of this act, to “discharge any person committed to the workhouse,” is invalid, or if some other detailed and minute provision should be invalid, that would not affect the validity of the law, or the title of the respective defendant, on the well known principle of partial validity and partial invalidity herein-before considered.
    In this discussion defendants have assumed that the power of the legislature to classify cities is a constitutional power. They haAre assumed, and do assume, that this distinguished court will consider this case, recognizing that power. It seems clear to them that the act of March 16th is valid, judged by the law as heretofore declared. This court Avill not search for some phrase or expression in that act on which to rest a finding of invalidity of the entire act. Unless ready to ignore all that has been said and done in the last fifty-one years, and ready to overrule the doctrine of classification totally, it will not find this law invalid. That doctrine has doubtless led to abuses. It is possible that the abuses may be remedied without a step so revolutionary as the repudiation of the doctrine. Some of those abuses have already been remedied. The abuse known as “ripper legislation” has been largely remedied by public opinion. The decisions of this court during the last eight years, applying strictly Sec. -26 of Art. 2, have had a strongly remedial effect.
   Shauck, J.

The admission that the act confers corporate powers, and that it, in fact, confers them on the city of Cleveland alone, would be equivalent to an admission that it is repugnant to Sec. 1 of Art. 18 of the constitution, but for the contention based upon the classification which is employed in defining the operation of the act. Our reasons for the conclusion that the classification is ineffectual for the purpose for which it is invoked are sufficiently stated in the preceding case of The State ex rel. Knisely et al. v. Jones et al. ante, 453. Perhaps a careful consideration •of the eighty-six sections of the present act would afford additional reasons for that conclusion, but those stated in the case cited are deemed sufficient; and except as they are passed on in that case, objections urged against the validity of the present act are not considered.

Although the two acts are adjudged to be void for the same reasons, some attention seems to be due to the effect of judgments appropriate to the conclusion that both acts are ineffectual to confer the powers claimed. In that case the relators sought to be admitted to office under favor of the act which was adjudged to be void. The judgment denied their claim, leaving the defendants in office to continue in the discharge of its duties. In the present case the same conclusion with respect to the invalidity of legislation of the same character points inevitably to a judgment of ouster, leaving no one to exercise the func'tions of the offices, some of which seem to be indispensable to the orderly conduct of the affairs of the city of Cleveland.

On the hearing of the present case some members of the court, including myself, were inclined to the view that as this legislation had been permitted to become operative, and to affect in important respects the de facto government of the city, the inquiry should be regarded as too late, but that inclination is completely checked by attention to the considerations involved. The attorney general has invoked a jurisdiction which we undoubtedly possess; and this he has done in the discharge of his duty and in a manner conformable to established practice. It is admitted that no limitation bars inquiry into the title of the defendants. In this posture of the case we can neither refuse to act, nor act otherwise than in accordance with our views of the requirements of the constitution.

“Acquiescence for no length of time can legalize a clear usurpation of powers where the people have plainly expressed their will, and the constitution has appointed-judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period in violation of the constitutional prohibition without the mischief which the constitution was designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question, but these circumstances cannot be allowed to sanction a clear infraction of the constitution.”

Cooley’s Constitutional Limitations, 85 and 86.

But this is a public action, instituted and conducted solely for the protection of the public against injuries to result from infractions of the constitution, and while a judgment of ouster mpst follow our conclusions, we think public considerations will justify such suspension of its execution as will give to those discharging the duties of the other departments of the government of the state an opportunity to take such action as to them may seem best, in view of the condition which the execution of our judgment will create; and this suspension will be until the 2nd of October, 1902.

Demurrer to the answer sustained; judgment of ouster; execution of judgment suspended until October 2, 1902.

Burket, Spear, Davis and Price, JJ., concur.  