
    The State, ex rel. the Attorney-General, v. The City of Cincinnati et al.
    1. The inquiry in proceedings by information in the nature of quo warranto is limited to the charges in the information, and matter set up by way of plea is only material in so far as it shows warrant in law for the exercise of the authority alleged in the information to be usurped.
    2. An information which charges a corporation with usurping certain franchises by acting through other parties, calls in question only the - authority of the usurping corporation, and can not be extended so as to include authority not derivable from the corporation, and which such parties exercise in their own right.
    3. The act of February 29, 1864, amendatory of section 4 of the act of March 11, 1861, regulating the Commercial Hospital of Cincinnati (58 Ohio L. 151;, is a special act assuming to confer corporate powers on the city council of Cincinnati, in respect to the government of the - hospital, and being thus in conflict with section 1, article 13, of the constitution, is inoperative.
    4. The city of Cincinnati can exercise no rightful authority in the government of said hospital, that power being vested in the board of trustees under the act of March 11, 1861, as an independent body.
    Quo warranto.
    This proceeding against the city of Cincinnati and others was instituted by Francis B. Pond, attorney-general, who, -on behalf of the state, filed an information, charging that “the city of Cincinnati, acting through Simon S. Davis, .Frederick J. Mayer, William B. Davis, John Carlisle, David Judkins, Benjamin E. Brannan, and Charles Zielinski, claiming to be the' board of trustees of the Cincinnati Hospital of the said city, for the space of one month now last past, and more, until now, at Cincinnati, in the county of Hamilton, in the said state, have used, and now do use, without any lawful warrant, grant, or charter, the following liberties, privileges, and franchises, to wit:
    “ 1. That of inviting and admitting persons not residents of the State of Ohio, nor taken sick while temporarily in said city of Cincinnati, to enjoy the privileges of the said hospital as patients for pay, giving them private rooms and treatment differing from and better than that given to the regular patients by law entitled to, and receiving admission into the said hospital.
    “ 2. And also the following liberties, privileges, and franchises, to wit: That of inviting and admitting persons not residents of the city of Cincinnati, nor taken sick while temporarily in said city of Cincinnati, to enjoy the privileges of the said hospital as patients for pay, giving them private rooms and treatment different from and better than that given to the regular patients, by law entitled to, and receiving admission into said hospital.
    “ 3. And also the following liberties, privileges, and franchises, to wit: That of inviting and admitting residents of the city of Cincinnati to the said hospital as patients, charging them pay therefor, and allowing them, in consid©ration of such payment, private rooms and treatment different from and better than that given to the regular patients by law entitled to and receiving admission into said hospital.
    “ 4. And also the following liberties, privileges, and franchises, to wit: That of keeping public a dispensary, and affording medical treatment to the sick poor, not patients in the said hospital.
    “ 5. And also the following liberties, privileges, and franchises, to wit: That of permitting the medical attendants at the said hospital, other than the faculty of the Medical College of Ohio, to use the same for purposes of medical instruction.
    “ 6. And also the following liberties, privileges, and franchises, to wit: That of permitting the medical attendants at the said hospital to use the same for the purpose of medical instruction, charging such fees therefor as the said attendants may think fit, for the private use and benefit of said attendants.
    “ 7. And also the following liberties, privileges, and franchises, to wit: That of excluding from attending patients in the said hospital the faculty of the Medical College of Ohio, without any lawful or proper cause shown.
    “ All which liberties, privileges, and franchises, the said the city of Cincinnati, acting by the said Simon S. Davis, Frederick J. Mayer, William B. Davis, John Carlisle, David Judkins, Benjamin F. Brannan, and Charles Zielinski, claiming to be trustees of the said the Cincinnati Hospital, during all the time aforesaid, have usurped, and now do usurp, upon the State of Ohio, to its great damage and prejudice.
    “And the attorney-general prays the advice and judgment of this court in the premises, and due process of law against the city of Cincinnati, and against the several persons named, as defendants, and that they shall be compelled to answer unto the' State of Ohio by what warrant they claim, to use and enjoy the liberties, privileges, and franchises aforesaid.”
    
      The defendants filed a plea to the information, and the-attorney-general demurred to the plea. The substance of the plea is stated in the opinion of the court.
    
      George E. Pugh and J. Bryant Walker, for the relator:
    For the legislative history of the Commercial Hospital, we refer to the statutes following: 19 Ohio Laws, 58; 23 Ib. 19; 24 Ib. 4; 36 Ib. 40; 38 Ib. 31; 51 Ib. 375; 53 Ib. 235; 54 Ib. 25; 57 Ib. 16; 63 Ib. 152; 65 Ib. 148; 66 Ib., sec. 297, Municipal Code; 67 Ib. 33; 18 Ohio Local Laws, 43; 29 Ib. 66; 32 Ib. 182; 33 Ib. 294; 34 Ib. 288; 58 Ib. 51; Swan (1841), 567, 571; Swan (1854, Derby’s ed.), 557, 567; S.& C. 853, 1527, 1534.
    I. The act of March 11, 1861, regulating the Commercial Hospital of Cincinnati, is unconstitutional.
    II. That the municipal code of 1869 repealed this law. For fuller argument on the two foregoing positions, see Ohio, ex rel., etc. v. Davis et al., ante.
    III. That the trustees have no power to admit pay-patients.
    Because a charter only gives such powers as are expressly given or necessarily implied from those given, and that general words are to be restrained by the nature of the corporation created, and these are trust funds, and none of the-powers claimed are necessary to their proper expenditure. Strauss v. Eagle Ins. Co., 5 Ohio St. 61, 91; Cooley’s Const. Lim. 213; Western College v. Cleveland, 12 Ohio St. 375, 377; Wheeler v. Cincinnati, 19 Ohio St. 19; Attorney-General v. Andrews, 2 McN. & G. 225, 228, 229; Attorney-General v. Eastlake, 11 Hare, 205; Attorney-General v. Guardian of the Poor of Southampton, 17 Sim. 6; Vance v. E. L. R. Co., 3 K. & J. 50; Stevens v. S. D. R. Co., 13 Beavan, 48; Angell & Ames on Corp., sec. 393; Ward v. Society of Attorneys, 1 Coll. 370.
    Now, the powers of a municipal corporation are also to-Be limited by its objects. It is not a money-making corporation; it is not an eleemosynary corporation. It is created for the convenience of its inhabitants, and for the purpose of governing the territory within its limits.
    When jurisdiction is given to it, in general terms, over offense's, it is jurisdiction over the territory within the city limits; and this is true of all its functions: the object of its creation is the government and benefit of its inhabitants. This is all. Collateral contracts may sometimes be made outside of the limits, to fulfill these objects, but the objects can not be extended without the express authority of the legislature.
    The very name of these officers is suggestive. In the act of 1861, under which they claim to act, they are styled “ trustees.” What is the fund they control ? Funds raised by taxation from the inhabitants of Cincinnati. Who are the beneficiaries? The people of Cincinnati. The act of 1821, which may be looked at in pari materia, and the acts governing the city, and the municipal code itself, are full of illustrations. Take the trustees of the water-works. They control such a fund, but the legislature considered it necessary, in spite of the general words in their law, to give them special power to sell the water outside of the'corporate limits of the city. S. & S. 866 ; Municipal Code, 1869, secs. 348-355.
    See also, in the chapter on appropriation of private property, section 507, the care with which the legislature distinguishes those purposes for which the corporation may appropriate property lying outside of its limits. In the very act authorizing the establishment of a pest-house in connection with this institution (act of April 13, 1863, Disney, 352), the legislature was careful to authorize its location within Hamilton county, that it might be taken outside of the limits of the city if deemed best. Other instances might be given, but these are deemed sufficient.
    This hospital is not a general charity. It is the mode designated within the city for performing those duties of the state which relate to the sick poor, which is vested by the general poor-laws in the trustees of the township; and until the act of 1861, the control of this hospital was by law vested in the same officers and their successors.
    Now, does this act which attempts to change the character of the board, give the slightest indication of an attempt to change the character of the institution? On the contrary, the building is to be used for the accommodation of those persons who may be by law entitled to admission therein.
    This, therefore, is a power legislative and governmental in its nature, not private, vested in the municipal corporation, as to which it represents the state, discharging duties incumbent on the state.
    The powers of the trustees are, therefore, subject to the stricter rules of construction applicable to state officers.
    What are their duties? To expend the moneys raised, properly, for the purpose for which they were raised. It is not for them to make money for the city. They have no more right to keep a private hospital because it pays, than they would have to run a manufacturing business because it would pay, or to use the funds in banking for the same Reason.
    Even in the case of the water-works, where the trustees are authorized and required to receive pay, it was held by the District Court that the city had no' right, in the absence of special legislation, to contract for furnishing water to the city of Covington, however remunerative it might be, although in that case, special legislation authorized it to contract with contiguous cities, this being construed to extend only to cities within the state.
    This quo warranto calls upon them to show their authority. They do attempt to show it, but can nowhere show any law which in any way authorizes them to receive pay. Their only business is to govern the hospital and examine applicants to determine whether they are proper cases. Neither they nor the city of Cincinnati have any authority to make pay a requisite for receiving patients, nor have they any to require it from a person being otherwise entitled. The whole authority to admit pay-patients, therefore, falls to the ground, and a judgment of ouster must be rendered on the first three counts.
    In England, these questions as to the control of public bodies over their funds have frequently come up, and the court has treated them as trusts, and has enjoined a misuse of them.
    A fair interpretation of these acts shows an intention not to give any such power.
    We have considered the question so far, as if the question simply rested upon general powers, broad and unlimited in their terms, such as the power given to municipal corporations to contract and be contracted with.
    But we think an examination of the special laws relied on, will show that apart from these broad principles of construction, the very laws governing this hospital, no matter which ones the court may decide now to govern it, according to all the established rules of construction, deny any such power as is claimed ; that so far from the language being broad enough to give these powers, unless restrained by the general rules of construction, that the proper construction of the laws themselves shows that the legislature have clearly denied them any such right.
    If the old law of 1821 were in force, it seems to us clear that no such persons could be admitted. The express power given to. admit idiots and lunatics — citizens of Ohio-^for pay, would seem clearly to negative the admission of persons not citizens of the state, on any ground. The classes entitled to admission under this law are clearly defined: 1. Paupers, residents of the township; 2. Idiots and lunatics sent there by township trustees throughout the state; 3. The same classes, citizens of the state, who are brought there by their friends for pay; 4. The same classes coming into the custody of the trustees of Cincinnati township; 5. Boatmen belonging to boats owned by citizens of Ohio, and of such states as furnish similar care to the boatmen on boats owned by citizens of Ohio, free.
    
    The requirement of residence is express throughout, except in the carefully enumerated cases. If this law governs the hospital, it seems to us clear that pay-patients can not now be admitted into the hospital, whether residents of the city or not.
    Nor can they under the provisions of the act of 1861. Who are to be admitted under that act? The building is to be used for the reception and care of such sick persons as may by law be entitled to admission therein, for treatment as patients. Where is the law entitling sick persons to be taken in for pay? We challenge the production of one — except the section of the law of 1821, entitling lunatics residents of the state. The mention of this class is fatal to any attempt at extension. Expressio unius est exelusio alterius.
    
    Rut what validity do these rules gain from the approval of the city council? None, linless the city council has power to admit a new class. Their whole power is derived from the amendatory section 4, passed February 29, 1864. 61 L. 142. This authorizes rules for the admission and discharge of patients; but does this give power to admit an entirely distinct class ? If it does, it must be because this amounts to an entire repeal of previous laws. If, under this power, the council and board can admit who they please, can not they also keep out all they please ? If they can admit pay-patients outside of the state, can they not also exclude sick poor, residents of the city ? Such a construction, we think, can not be sustained for a moment.
    IV. The fourth question we desire to discuss is the fourth charge in this case of keeping a dispensary.
    We do not deem it necessary to spend much time upon this. The sole defense is that the board found there were applications for relief by persons not proper subjects for the hospital.
    The plain and conclusive answer is, that other taxes are laid upon the citizens for this purpose, and the administration of this relief is placed by law in other hands. The taxes placed in the hands of these trustees are for the hospital, and it is a diversion to apply them to cases they admit are not proper for the hospital..
    V. The fifth charge of the information raises the.question as to the authority of the trustees with reference to medical instruction.
    Here, if the law of 1821 is the one in force, then there .is no question, for no one can be in attendance there but the faculty of the Medical College of Ohio. Under this law the state must clearly have judgment.
    Is the case of the trustees any.better under the law of 1861? We think not. The privilege is given to the faculty of the Medical College of Ohio of introducing their patients, and the trustees a.re only authorized to employ other medical assistance for the care of the patients, if necessary. The instruction is to come from the faculty of the Medical College of Ohio. If they bring in their students, the trustees may admit others. If they do not, then none come in. The duty of the trustee is to manage the hospital, not, as they seem to have thought, to keep a medical college.
    VI. The sixth clause of the information charges the usurpation of the right by those in attendance to charge fees for pupils attending for their own benefit. This seems to us clear.
    The authority given by the law is contained in section 7, as amended March 1, 1870. 67 L. 120.
    The authority here is given to the trustees to fix the fee for the introduction or admission of students to the hospital, and that fee is to be the same as to all, and to be paid into the city treasury.
    Certainly this negatives the right of the medical attendants to put any portion of it into their pockets.
    VII. The last intrusion set up in the information is the exclusion of the faculty of the Medical College of Ohio.
    If the act of 1861 is unconstitutional, clearly no justification is shown.
    Even under it no sufficient cause is shown,
    The faculty of the Medical College of Ohio are only removable for cause.
    
    The act itself clearly shows this. See sections 3 and 5.
    The two clauses are clearly distinct, and clearly confer different powers. The legislature evidently knew what it was to dismiss at pleasure and what to dismiss for cause. They clearly meant to give it in the one case, and as clearly did not mean to give it in the other.
    When officers do not hold at pleasure, the removal can not be made unless the officer be duly notified of the charges, and have an opportunity to make defense. State, ex rel. Linley, v. Bryce, 7 Ohio (pt. 2), 82; Murdock v. Academy, 12 Pick. 244, 263; Rex v. Gaskin, 8 Term, 209, 210; Page v. Hardin, 8 B. Mon. 472; Gorham v. Luckett, 6 B. Mon. 146, 157, 168; Rex v. Liverpool, 2 Burr. 723; Ex parte Ramshay, 18 Q. B. 174, 190.
    And a removal for a cause not assigned in a charge is bad. Rex v. Ipswich, 2 Ld. Raym. 1232, 1240.
    
      Matthews, Ramsey & Matthews, for the defendants:
    For the argument on the first two propositions of the relators, see Ohio, ex rel., etc. v. Davis et al., ante.
    III. Before proceeding to consider the warrant of law authorizing the exercise of the powers alleged to be usurpations, an inquiry is suggested which affects the substance of the proceeding, and is reached by the demurrer to the plea.
    This information is filed in the name of the state, by the attorney-general, upon his own relation, under section 12 of the attorney-general act. 1 S. & C. 89. The theory on which it is based, is that the acts charged are illegal assumptions of the right to exercise certain franchises.
    By section 14 of the same act, it is made the duty of the attorney-general “to cause proper suits to be instituted, at law and in chancery, to enforce the performance of trusts for charitable and educational purposes, and restrain the abuse thereof,” etc.
    A similar provision is found in section 24 of the quo warranto act. 2 S. & C. 1270.
    The distinction between the jurisdiction of chancery, at the suit in equity of the sovereign, to prevent and restrain abuses, and direct the administration of public trusts for charitable purposes, and the jurisdiction of the court as a court of law to inquire into and forbid by judgment of ouster, in quo warranto, the illegal exercise of powers, which, in their nature, constitute a portion of the franchises which belong to the state, is ancient; and it is evidently the intention of the statutes cited that it should be preserved. And of suits of the former description, this, court has not original jurisdiction. They are required to be begun and prosecuted either in the Court of Common Pleas of Franklin county, or of that county wherein the trust property is situated.
    Now, the only franchise claimed and exercised by the individual defendants, is the right to act as trustees of the Cincinnati Hospital, and as such, exclusively to manage and govern the same, according to such rules and regulations as they may prescribe, subject to the approval of the city council; and on the part of the city, to act as visitor to the institution, through the city council, by granting or withholding its approval of those rules and regulations.
    The act of 1861 being, for. the purposes of this argument, necessarily assumed to be valid, the franchise claimed is likewise admitted; for it is expressly conferred by that act.
    The individual defendants are trustees of a fund, property, and institution founded by the state for a charitable use; they are trustees of a public charitable trust; the city, by its common council, is, to the extent named, appointed visitor; the trustees are invested, by the express terms of the law, with the government, control, and exclusive management of the hospital, and the power to make rules and regulations for the conduct and government of the same, and for the admission of patients and the dis? charge of convalescents.
    It is quite possible, that in the administration of this trust, and the exercise of its powers and duties, and the discretion with which it invests them, the trustees may err. They may do things forbidden and omit others enjoined. They may make mistakes of law and of fact. They may abuse their discretion, and commit breaches of their trust. For all these, they are amenable to the law and subject to the control of the court. But, even on the supposition that they have been guilty of everything charged against them, and everything charged is a violation of law, it does not follow that they have usurped a franchise. The ease of an incorporated company differs from that of every other, even from the case of a public officer acting illegally in the discharge of the functions of his office. For every illegal act of power, on the part of a corporate body, is the usurpation or abuse of a franchise; and the statute expressly authorizes, as against corporations, an. information in quo warranto whenever it has offended against the laws of the state, or misused its corporate authority or any of its franchises or privileges.
    It is not intended to assert, that individual trustees of a public charitable trust may not be guilty of usurping franchises, from which they may be ousted by judgment in quo warranto; but that such breaches of their trust, because illegal, do not necessarily convict them of usurping franchises: and that, in any case, to convert a breach of trust, to be dealt with in the ordinary way in chancery, into a usurpation of a franchise to be reached in quo warranto, the act alleged against them must be such as, in its own nature, amounts to an intrusion upon what exclusively belongs to the public in its sovereign capacity. In other words, it must be one which no person could lawfully do without a grant from the state.
    
    Not one of the particulars specified in the information come within this description.
    Receiving patients into a hospital for medical care and treatment, able and willing to pay, and receiving pay for the service, may be illegal in the case of these trustees and o.f this hospital; but so far from being a franchise, which can be enjoyed by none, except as granted by the state, is what any private person may lawfully do.
    So, keeping a public dispensary, and affording medical treatment to the sick poor who choose to receive it; to permit medical attendants in a hospital other than the faculty of the Medical College of Ohio; to use the same for the purposes of medical instruction and charge fees therefor, and to exclude therefrom the faculty of that college — come within the same reason, except upon the theory that the faculty of that college have by law a monopoly, within this state, of medical education. And if they have, the remedy is, not by an information in quo luarranto, to inquire why they are excluded; but, at their own instance, by writ of mandamus, to compel the trustees to admit them. The fact that the city of Cincinnati is made defendant, and is charged with participating in these breaches of law and of trust, and notwithstanding its corporate character, does.not affect the argument. For it appears, by the statutes, that the city does not usurp any franchise. The city supports, by taxation, the institution, and by its common council approves the regulations which are charged to be illegal. But it is bound by law to raise, by taxes, the funds necessary to maintain the hospital; and in approving the regulations prescribed by the trustees, although it may have improperly exercised its discretion, it has usurped no'power. The trustees are not officers or agents of the city; and it is not liable for their misconduct or mistakes.
    We claim, consequently, that the demurrer to the plea overthrows the information, by a denial of the jurisdiction of the court. The only remedy appropriate to the case is by a petition, as in equity, to declare the acts alleged to be illegal as breaches of the trust of which the individual defendants are trustees, and decree their compliance with the instructions of the court.
    IV. The right to receive pay from patients, able and willing to give it, is denied to the trustees by the counsel for the relator. It is denied as to non-residents of the state, and as to residents of the state but not of the city, who are not taken sick while temporarily in the city, and as to residents of the city. In reference to all three classes, the information avers that the right is claimed by the defendants, not only to admit them to the ordinary treatment of the hospital, but to give them private rooms and treatment different from and better than that given to the regular patients, by law entitled to and receiving admission thereto.
    The proposition contended for, by the counsel for the relator, in their printed brief, is, that no persons are entitled to‘the.benefits of this hospital except sick paupers, who have a settlement in the city, or those from other townships, entitled under the poor-laws' to temporary relief, when found within it. It is based upon the allegation that, “ It (the hospital) is the mode designated within the city for performing those duties of the state which relate to the sick poor, which is vested by the general poor-laws in the trustees of the township.”
    This misconception of the true character of this institution is the foundation of the fallacy which pervades their whole argument.
    The original act of 1821, which established this institution, defined its uses. They were:
    1. For a poor-house and work-house for the township of Cincinnati; the diseased and infirm to be treated as patients, the able-bodied to be employed for the benefit of the institution.
    2. For an asylum for idiots, lunatics, and insane persons from all parts of the state; those who were paupers to be maintained as such — all others to be maintained at their own expense or that of their friends, at a compensation to be agreed upon.
    3. For the medical treatment of sick boatmen, belonging to boats owned by citizens of the state at large, without respect to the residence of either, without compensation; and of boatmen of boats belonging to the citizens of other states which made provisions for similar relief to Ohio boatmen : and this without reference to the ability of the patient to pay for his own treatment.
    4. In the advancement of medical science, by providing, through the faculty of the Medical College of Ohio, for medical and surgical instruction to their pupils in the hospital.
    In view of its legislative history, it is impossible, as it seems to us, to conclude that it ever lost its character as a state institution, for all the purposes of charity, implied in its name as a hospital, or declared from time to time by the general assembly; or to admit that it can be considered as a municipal institution, subject to the authority of the city government, and limited in its scope by the application of the principle which confines the jurisdiction of municipal authority to the territory over which it extends.
    The act of 1861 changes its name to that of the “ Commercial Hospital of Cincinnati;” changed again by the act of April 3, 1868, to that of the “ Cincinnati Hospital.”
    It .declares that it “shall be used for the reception and care of such sick persons as may by law be entitled to admission therein as patients.” No distinction is made between rich and poor, between citizens of the city and state and citizens of other states and countries. It does not define its beneficiaries to be such as by any other law then in force are entitled to admission. There was no other law then in force, to which such a reference could be made. Counsel for the relator say: “Where is the law entitling, sick persons to be taken in for pay? We challenge the production of one,” etc. We answer the challenge by another: Where is the law entitling sick persons to be taken in without pay? There was none, and is none, except the act of 1861 itself.
    The act of 1861 declared the use of the hospital for the reception and care of such sick persons as may by law be entitled to admission for treatment therein as patients, without any reference to any existing law on the subject, but not without providing the authority and means for ascertaining the class intended as its beneficiaries.
    To that end, it provides, in section 3, that the trustees shall have the exclusive management of said hospital, and that they shall make rules and regulations for its conduct and government. And their discretion is guided by all the implications contained in the name of the institution, as characteristic of its objects. From the beginning, as we have seen, in 1821, it was called a hospital. That name, amid all other change?, has been preserved. It was, until the passage of the municipal code in 1869, the only instance known in our legislative history of such an institution.
    There is no definition of a hospital which excludes eithei the stranger or him who is able to pay. In the Encyclopaedia Brittanica, the title is derived from a word meaning ‘‘the place of shelter for strangers, whether rich or poor; thus equivalent to our hotel, the Xenodocheion of the Greeks, the Hospitium of the Romans.” The same article says: “Hospitals for the poor and sick are prominently characteristic of Christianity. So early as the Council of Nice, a. d. 325, they are spoken of as commonly known. The first celebrated hospital was that of Caesarea, a. d. 370-380, richly endowed by the Emperor Yalens. It was of immense dimensions. After it followed the hospital of Chrysostom, at Constantinople. In the ninth century there were twenty-four hospitals in Rome alone. Hospitals are now universally established in all parts of Christendom, and appropriated for all classes of the community and for all kinds of diseases.”
    
    It is not the case of a misapplication of public revenues, raised by taxation from all, for the benefit of a favored few, but of receiving private contributions, in excess of the actual cost of their treatment, in aid of the public funds? and as a relief to a public burden. The trustees or the city, beyond all doubt, would be legally competent to receive, by donation or bequest, from individuals, money and property, in trust, to be held and devoted to the purposes of such a charity; and'the care and cure of the sick is a charitable use, even where those able are required to pay for it. Why should they be less capable of receiving, from time to time, contributions directly from the benefited class, for a service that can not as well otherwise be rendered; which no individual effort can supply; which private associations can not effectually provide; which the state alone can adequately establish; and which is so intimately connected with the preservation of public health?
    V. The question as to the right to attach a dispensary, as part of the administration of the hospital, is disposed of by the argument already made.
    The prescribing for out-patients and furnishing them medicines, as we have already shown, is a usual incident to public hospitals. It is not forbidden, either expressly or by any implication, by any statute. It comes clearly within the terms by which the trustees are authorized to govern and manage the institution.
    VI. The alleged usurpation in the matter of medical instruction, has even less semblance of reason in its support.
    Medical instruction is not only one of the usual incidents of hospital foundations, and a very important one, but is expressly recognized by the act of 1861, and the amendment of March 1, 1870 (67 Ohio L. 120), as within the province of this one.
    It is a clear misreading of the statute to say, as counsel for the relator say, that the faculty of the Medical College of Ohio are the only persons legally competent to impart medical instruction in the hospital. They only have the privilege, subject to the regulations prescribed by the trustees, while they act as the medical staff of the hospital, to introduce their own pupils to witness the medical and surgical treatment of patients. Entirely independent of their connection with the institution, the trustees are expressly authorized, “ at their discretion and under such regulations as they may prescribe,” to admit “ medical students, not pupils of said college, to witness the medical and surgical treatment of patients in said hospital.” In neither case is there a word in the act expressly referring to medical instruction to be imparted orally, except as that is involved in witnessing the practice in the hospital; but the implication is equally necessary and clear, in both, that it is intended.
    The act of March, 1870, already referred to, devotes the fees received from medical students, admitted to the privileges of the hospital, to the creation of a fund for establishing and maintaining a medical library and museum for said hospital. Here is an express recognition, of medical instruction as one of the substantive uses of the institution.
    VII. As to. the right, permitted to the medical staff, to receive private compensation, in addition to the fees charged by and paid to the hospital, from pupils attending them, at the bedside of patients, for clinical instruction, it is precisely what was- permitted to the faculty of the Medical College of Ohio, when allowed to act as the medical staff of the hospital. Medical students pay to the attending surgeons and physicians of the institution a' fee as pupils, as they pay to medical colleges or private practitioners a similar fee. For this consideration they receive instruction in the wards, as the instructor daily performs his duties in the institution, besides paying to the public treasury the fee paid by all others for the privilege of witnessing the practice and attending the lectures in the amphitheater. It is the sole emolument received for the valuable and self-denying labors of the medical staff’ and neither comes out of the public funds nor diminishes any contribution to them; but, on the contrary, adds to the pecuniary resources of the hospital , by attracting students who can not enter without first purchasing its tickets.
    VIII. This naturally brings us to consider the last grievance, which is, perhaps, not, on that account, the least; at all events, in the estimation of those on whose behalf it is made. That is, the exclusion of the faculty of the Medical College of Ohio from their alleged right to act as the medical staff of the hospital.
    This alleged right is based upon the ground, that the faculty of that college have a right to act in that capacity, which can be forfeited only for certain causes and upon a formal procedure, to ascertain their existence.
    The act of 1861 does not confer upon the faculty of the Medical College of Ohio any right whatever in respect to the Cincinnati Hospital. It does, indeed, in terms, declare it to be “the duty of the faculty of the Medical College of Ohio to visit and attend the patients in -said hospital, and to render them proper medical and surgical advice and service, without compensation therefor; in consideration of which said faculty shall have the privilege of introducing pupils of said college into said hospital, under such regulations as the trustees may prescribe, to witness the medical and surgical treatment of patients.” Here is no right conferred ; but a duty only on the one hand and a privilege on the other, in consideration of it, and during its performance. And, although it is expressed in the form of a contract, “ it is by no means to be viewed in the light of a bargain between two parties dealing, at arm’s length,” as is said by Judge Gholson, in the case of Alexander v. City of Cincinnati, 2 Handy, 189. But, “it is to be considered part of an organization or plan intended for the promotion of science and the benefit of the public.” Hence, in that case it was decided that the attendance, which the faculty were bound to render, was such only as was consistent- with the performance of their duties as professoi’s in the college, and the necessary attention to their private practice as surgeons and physicians.
    For this reason, doubtless, among others, the act of 1861 provides that “the trustees may make such provisions, as to them may seem advisable, for medical and surgical advice and service to such patients, additional to, or other than that rendered by said faculty;” which clearly authorizes an unlimited discretion to provide a substitute for the faculty of the Medical College of Ohio. To render this authority incapable of impeachment, it is further provided that “the trustees shall have the power, whenever they may deem it for the welfare of said patients so to do, to dismiss the faculty of said college from attendance upon said hospital.” The whole matter is left to the judgment and discretion of the trustees, who are not required to justify their action by a judicial finding, on their part, of incompeteney, unfitness, neglect, or other disqualification on the part of the faculty, It is the faculty, as a whole, they are authorized to dismiss; a mode of - expression which excludes the idea of action upon grounds of personal unfitness, and looks to a question of policy as to a complete severance of the relations between the hospital and the medical college.
   White, C. J.

The present case was argued in connection with that of The State, ex rel. the Attorney-General, v. Simon S. Davis et al., and which has already been decided and reported (see ante, p. 434).

In the case last named it was held, that the act of March 11, 1861, entitled “an act regulating the Commercial Hospital of Cincinnati,” was a valid enactment, and that it is still in force; and that by it the authority of governing the hospital in question is vested in the board of trustees therein provided for.

The present case brings in question for determination the rightfuluess of the authority exercised by the city of Cincinnati in the government of the hospital; and as we regard the information, the determination of no other question is involved in the case.

The substance of the charge contained in the information, as we understand it, is that the city of Cincinnati, acting through the persons named, who are described as claiming to be the board of trustees of the Cincinnati Hospital of the said city, has used, and continues to use, without lawful warrant, grant, or charter, the liberties, privileges, and franchises set forth in the information. These liberties, privileges, and franchises, it is averred, the said city of Cincinnati, acting through the persons named, has usurped, and still doth usurp.

The several persons named, as well as the city, are made defendants, and are called on to answer by what warrant they claim to use and enjoy, the liberties, privileges, and franchises specified in the information; and it is to be observed that the defendants other than the city are not charged with usurping authority in their own right, or with assuming authority which they claim to exercise as trustees, independent of the authority of the city: consequently they are not required, in this case, to show their warrant for the exercise of any such independent authority. The scope of the charge in the information is, that the city is guilty of usurping the liberties, privileges, and franchises specified,, and that the other defendants are acting under and in obedience to such usurped authority.

In proceedings by information in the nature of quo warranto, the range of inquiry is limited to the charges in the-information ; and matter set up by way of plea is only material in so far as it shows warrant in law for the exercise of the authority alleged in the information to be usurped.

In this case the defendants have filed a joint plea. This plea, in the first place, sets up the same matters that were contained in the plea in the case of The State, ex rel., etc. v. Davis et al., already referred to; and avers, in substance, as-was averred in that case, that the defendants herein, other than the city of Cincinnati, are the duly constituted hoard of trustees of said hospital under the act of March 11, 1861, and, as such, are entitled to have the exclusive management thereof, and are invested with the power to make all rules and regulations for the government of the same.

The plea also sets up, that by the third section of the act of February 29, 1864, entitled “ an act to amend an act regulating the Commercial Hospital of Cincinnati,” it is enacted that the said board of trustees shall adopt rules and regulations for the government of said institution, and for the admission of patientsand the discharge of convalescents from said hospital and pest-house, and that said rules and regulations shall be submitted to the city council for their approval, and when so approved, shall have full force in law as other ordinances of the city.

That the board of trustees adopted rules and regulations-for the government of the hospital, which, it is averred, were duly approved by the city council of the city of Cincinnati, and that among the rules and regulations so adopted and approved are those set out in the plea. Under these rules and regulations the defendants claim to justify the acts charged against them in the information.

The alleged right of the city of Cincinnati to exercise any authority in the government of the hospital, is founded on the act last named, of February 29, 1864. 61 Ohio L. 142. This is a special act, amendatory of section 4 of the act of March 11, 1861, regulating the Commercial Hospital of Cincinnati. 58 Ohio L. 151. By the third section of the act, last referred to, of 1861, the trustees were invested with full power to make rules and regulations for the conduct and government of the hospital. The amendatory act of 1864 requires the rules and regulations adopted to be submitted to the city council of Cincinnati for their approval, and declares that when they are approved by that body, they shall have full force in law, as other ordinances of the .city.

If this act were constitutional, its clear effect would be to put the rules and regulations for the government of the hospital under the legislative control of the city council of Cincinnati. True, the rules and regulations are required to originate with the trustees, but they can have no binding force until passed on and approved by the council. Until then, they are in the nature of propositions from the trustees, to which the approval of the council alone can give the force of law. When so approved, they are declared to have the same force as other ordinances of the city.

But it seems clear to us that the act in question assumes to confer corporate power on the city council of Cincinnati. The legislative power of the city in its corporate capacity is vested in the council. The power here attempted to be conferred, is not vested in the members of the council as individuals, but is sought to be vested in the council in its legislative and corporate capacity. The act, therefore, in our judgment, is in conflict with section 1, article 13, of the constitution, and confers no power on the city council. That no distinction can be made, under this section of the constitution, between private and municipal corporations has already been determined by this court in the case of The State, ex rel., etc. v. The City of Cincinnati, 20 Ohio St. 18.

Nor does it make any difference, within the meaning of Ihe constitutional inhibition, whether the effect of the special act is-to confer additional corporate power on an existing corporation or to create a new one. The power is explicitly denied to the legislature of accomplishing such a result by special act.

It may be proper for me here to say, that while I did not concur in the judgment in the case last cited, yet the ground of my non-concurrence, which is not stated in the report, was not that municipal corporations were excepted from the operation of the clause of the constitution in question.

The object’ of the statute in that case was to enlarge and define the territorial limits of the city. It seemed to me that such a statute might be regarded simply as an act of' local legislation, like adding new territory to a county or other subdivision of the state for the purposes of local government. And that while the added territory would thus be subjected to a different local government, yet it would be to a government that was already existing, with adequate powers for the purpose. I was, therefore, inclined to the opinion that the statute in that case ought not to be regarded as an act conferring corporate power. But the opinion and judgment of the court were otherwise.

It follows from the foregoing views that the city of Cincinnati is invested with no power in relation to the government of the hospital. That power is in the board of trustees, under the act of March 11, 1861, acting as an independent body. Whether the trustees, in the government of the hospital, have exceeded their powers, and if so, to what extent, are questions not before us, in this case, for determination.

The demurrer to the plea will be sustained, and judgment entered accordingly.  