
    The State ex rel. Hibbs v. Board of County Commissioners of Franklin County.
    1. An act will not be declared void for uncertainty, if by resort to tbe recognized aids in the construction of statutes, it is possible to ascertain its meaning.
    2. An act providing for the improvement of a designated county road, is local in its nature, and not in conflict with article 2, section 26, of the constitution, which provides that, “all laws of a general nature shall have a uniform operation throughout the state.”
    3. An act requiring county commissioners to cause a designated road to be improved, and to levy a tax to defray the expense thereof, where the road is open to the public, is not invalid for want of power in the general assembly to pass it.
    4. An act providing “ that the commissioners of Eranldin county be, and they are hereby, authorized and directed to levy ... a special tax not to exceed,” etc., to improve a county road, is a mandatory statute,, and the commissioners may be compelled by mandamus to obey its provisions.
    Mandamus.
    The court having allowed an alternative writ of mandamus, which was issued June 20, 1877, and an answer having been filed, the cause was heard on the pleadings. They show the following facts :
    Green Lawn Cemetery Association was incorporated in 1848, under a statute passed that year. (1 S. & C. 225.) Its grounds, situated near the city of Columbus, are open to the public burial of all citizens of the county, under the rules and regulations of the association, and they contained, at the commencement of this suit, about eight thousand bodies.
    Previous to April 26, 1877, the county commissioners, with the consent of the city council, laid out and established a public highway, known as Green Lawn Avenue road, from High street, in Columbus, by Green Lawn Cemetery, to the Ckillicothe road, which is near to the cemetery.
    If Green Lawn Avenue road should be improved, as hereinafter mentioned, it will accommodate a large number of the citizens of the county passing to and from the cemetery.
    On April 26, 1877, the following act was passed :
    “ Section 1. That the commissioners of Eranklin county be, and they are hereby, authorized and directed to levy, at their June session, a. d. 1877, a special tax not to exceed the amount of the estimate of the engineer as hereinafter provided, for the purpose of building, grading, and graveling or macadamizing the road from South High street, in the city of Columbus, along the Green Lawn Avenue road to its terminus in the old Chillieothe road.
    “Sec. 2. The said commissioners shall cause a survey and estimate of said road to be made by some competent engineer, and the letting for said improvement provided for in section one shall not exceed the amount of such estimate after expenses are paid; and the commissioners in these proceedings shall be governed by the laws now in force, so far as they may be applicable, relating to their duties in regard to free turnpike roads.
    “ Sec. 3. This act shall take effect and be in force from and after its passage.” 74 Ohio L. 472.
    The command of the alternative writ is that the commissioners ascertain the amount and levy the tax, as provided in the act, or show cause why they refuse to do so ; and it is stated that the improvement will cost $5,000.
    The answer of the commissioners contains the following averments :
    “ The board say that said act is so Vague and indefinite in its terms that the board is not able to determine how to act under it, or to see dearly in what their duty lies in regard to the manner in which the tax shall be levied.
    . . . “ This board does not recognize the necessity of said improvement. This improvement consists, in part, in the building, grading, and graveling, or macadamizing of a street within the corporate limits of the city of Columbus. It will not be of general benefit, but will be of local benefit and interest only to those using Green Lawn Cemetery as a burial place, to those citizens who own lands contiguous to or in the vicinity of said road, and to such others as may prefer to use this road to other roads leading in the same general direction.
    “ The board do not deem it just to make such improvement at the expense of the whole county, and do not believe that the legislature intended, by the act set forth in the writ, to compel this board to make said improvement whether the doing so met with the approval of its judgment or not.
    “ The board regards said act of the legislature to be of doubtful constitutionality, if it should be construed to intend that the board shall make said improvement, and shall levy a tax to pay the same upon the whole county.”
    
      Lorenzo English and Wright § Evans, for the -relator:
    The improvement, if made, would constitute a public use for which the taxing power may be invoked. 9 Ohio St. 540; Sedgwick on Con. of Stat. and Con. L. 446; 1 Ohio St. 77; 21 Ohio St. 43; 8 Ohio St. 333; 20 Ohio St. 496; 9 Ohio St. 540; 51 Penn. St. 445-451; 17 Ohio St. 558; 21 Ohio St. 43-47.
    In answer to the objection of the unconstitutionality of the law, we say that the power to authorize another to do a thing, implies the power on the part of the principal to-do the same thing,.and if the legislature can authorize a hoard of county commissioners to determine the necessity of a local public improvement, and afterward to construct it at their pleasure, it can determine, itself, this necessity, and require it to be done. 103 Mass. 120 ; 38 Miss. 679, 684; The City of Lexington v. McQuillon’s Heirs, 9 Dana, 515, 516; Cheaney v. Hover, 9 B. Monroe, 330; 17 Ohio St. 608, 616.
    Does the legislature possess the power to authorize the imposition of a tax upon the taxable property of a county, for an improvement such as contemplated by this act; or must it be constructed at the expense of adjacent property ? We think it does.
    1. Under article 2, section 1, of the constitution, the legislative power extends to all the objects and purposes which the state government may require, and we must look to the provisions of that instrument to see how far, and to what extent the legislative discretion is qualified or restricted; therefore, when the power of the general assembly to enact any particular law is drawn in question, the proper inquiry is, whether such an exercise of the legislative power is clearly prohibited by the constitution. The grant of power being geueral, the question is as to the existence of a limitation arising from special prohibition. 11 Ohio St. 534; 15 Ohio St. 573; 21 Ohio St. 198.
    2. Such prohibition must either be found in express-terms, or be clearly inferable, by necessary implication, from the language of the instrument, when fairly construed according to its manifest spirit and meaning. 1 Ohio St. 437; 2 Ohio St. 607; 15 Ohio St. 573.
    3. The power of taxation is included in the legislative-power, and is supreme, unless it falls within some of the-limitations upon fits exercise, imposed by the constitution. 11 Ohio St. 534.
    4. Taxation exacts money, or services from individuals,, as and for their respective shares of contribution to any public burden, and the power may be legitimately exer•cised on all the objects to which it is applicable, to the utmost extent to which a government may choose to carry it, except where there is a clear limitation in the constitution upon the power. 4 Wheaton, 428; 1 Ohio St. 138; 11 Ohio St. 534; 15 Ohio St. 592; 21 Ohio St. 43, 47; 4 Pet. 562; 49 Mo. 490, 574; 47 Mo. 150; 43 Mo. 479; Dillon's Mun. Cor., §§ 43, 583, note 3.
    5. And this unlimited power of taxation necessarily involves the right to designate the property upon which it is to be levied. In other words, to apportion the tax territorially. 1 Ohio St. 138 ; 10 Ohio St. 192; 19 Ohio St. 418.
    6. If the purposes for which a tax is authorized are public, then the imposition of the tax is constitutional. 21 Ohio St. 43, 47.
    Taxation for all of these purposes may be general, or special, according as the legislature may determine. It may be imposed upon all the property of a taxing district .according to a uniform rate per centum, or specially, according to benefits upon adjacent property, and it is competent. for the legislature to say what shall constitute a taxing district, territorially, for either purpose. 5 Ohio St. 246 ; 8 Ohio St. 333; 9 Ohio St. 540; 28 Cal. 349, 361; 12 Cal. 83; 47 Miss. 367, 377; 38 Miss. 652 ; 5 Thompson, 321; Howell v. The City of Buffalo, 37 N. Y. 267; 69 Penn. St. 352; 65 Penn. St. 157 ; 58 Penn. St. 320; 1 P. F. Smith, 445 ; 46 N. Y. 401; 4 Harris (S. C.), 92; Sedgwick, 426, 433 ; 9 B. Mon. 330 ; 23 Conn. 189.
    As a further objection to the constitutionality of the act, the respondent claims that, if it be enforced, it will result in improving a street in the city of Columbus. As a fact, this improvement would embrace about five hundred feet, and really constitutes one of the approaches to the iron bridge, but we do not think this circumstance militates against the principle established by the cases. Smedly v. Erwin and others, 51 Penn. St. (1 P. E. Smith), 445, 451; Goff v. The Mayor of Frederick City, 44 Md. (Am. Law Reg., June, 1877, p. 33.)
    
      Mandamus will lie. See High’s Ex. L. R., § 139; 1 Ohio St. 77; 24 Ohio St. 393 ; 5 Ohio St. 528; 17 Ohio St. 608.
    
      Joseph H. Outhwaite and Talfourd P. Linn, for respondents :
    The respondents claim that the law as passed is unconstitutional and void, and that they are not bound to act under it, for the following reasons :
    1. The act is so vague and indefinite in its terms that they can not intelligently carry out its provisions.
    2. The general assembly can not constitutionally compel them, without their consent, nor compel the people of Eranklin county, acting through them as their representatives, to make an improvement which is of local use solely.
    3. Under the constitution and laws of Ohio the board of county commissioners are to be the sole judges of the necessity of a merely local improvement.
    4. The improvement in question is such a local improvement, and is not of such a public character as to give the general assembly power over it.
    6. The act violates article 12, § 2, article 1, § 19, and article 2, § 26, of the constitution.
    The rule of construction claimed on behalf of relator, that under such a general grant of legislative power as is contained in article 2, § 1, of the state constitution, other parts of the same instrument must be consulted for limitations to and restrictions - on that power, has received the sanction of judicial decision, and has in some states been accepted in its broadest and most unqualified sense. But from time to time courts have almost unanimously been constrained to hold this rule subject to certain modifications, on the ground that, although not hampered by any express prohibitions, legislative bodies could not be allowed to enact laws violating common rights and justice, and opposed to common reason. 4 Conn. 225 ; 9 Cranch, 43; 3 Doll. 386; 1 Ohio St. 77; 21 Ohio St. 14; 24 Mich. 44; 9 Cranch, 292; 4 Wheat. 694; 22 Iowa, 351; 22 Wis. 660; 10 Barb. 214.
    
      The privilege of holding acquired property, untrammeled by legislative action, is no more essential to the existence of local municipal corporations, nor is it any more a right inherent in the nature of representative governments, than is the right of those corporations to local self-government, to the unrestrained management of local affairs, and to judge for themselves of the expediency of local improvements, and the levying of local taxes for local purposes. In neither case is legislative control forbidden by the words of the constitution, but in both cases it is repugnant to the spirit of American institutions. 24 Mich. 44; 2 Ohio St. 607.
    That the usurpation by legislatures of such unlimited powers is impolitic and dangerous, is too plain for argument. It has been pronounced by many courts, after the most thorough examination and careful consideration, to be an unauthorized encroachment on what may be termed the unwritten constitutions of the people. They can empower municipal coi'porations to tax themselves for, and to construct, improvements strictly local in their character, but here they must stop. They can not compel such action without the consent of the corporation. 16 Mass. 83; 4 N. H. 572 ; 31 Vt. 237; 9 B. Mon. 338; 5 Sneed, 186; 13 Wis. 37; 29 Wis. 41; 51 Ill. 17; 53 Ill. 302; 55 Ill. 33; 55 Ill. 133; 24 Mich. 44; 28 Mich. 228; 8 Bush, 493; 69 Penn. 352; Cooley’s Const. Lim. (3 ed.), 230, and note.
    This road is an exceptional means of passage, for the sole use and benefit of the citizens of Columbus. People living in other parts of the county can, it is true, use it, but they have no more direct interest in it than they have in any street in the city. Moreover, if built under the law in question, it will be built in an unusual manner, and at an unusual expen.se.
    Those interested in the establishment of this road have-not made known to the county commissioners, as they are authorized under the free turnpike laws of the state, their desire for such improvement. The board of commissioners, as appears by their answer, and as appears also by their official order, have explicitly found that the macadamizing of the road is not a matter of public nor of local necessity. In view of this state of facts, is the general assembly to’ step in, and, at the request of one or two who may be interested in the sale of town lots, command the county to-tax itself for their benefit?
    The principle contended for by relator in this case, if" once established, would violate that guaranty of the constitution that private property shall be held inviolate, and' subservient only to the public welfare.
    If the legislature can compel the road to be macadamized,, they can compel it to be paved with asphaltum, or with granite or marble blocks. If they can compel the county to be taxed for it, they can compel the citizens immediately benefited to be assessed for its construction. Since a part of this road is a street within the city of Columbus, the-right to force the county to pave that street will carry with it the right to force the county to build all the streets and alleys, construct the sewers, and maintain the police force; Permit the legislature to be the sole judges of what shall be a local improvement, and where it shall be made, and' there is no limit to the burden that can be imposed on the-people in the guise of taxation. Property may be confiscated, estates swallowed up, and portions of country improved until they are impoverished.
    The argument so far has proceeded upon the assumption of relator that the legislator did intend, by the law passed,, to compel the board of commissioners to levy the tax on the grand duplicate of the county. But it is a matter of grave doubt whether such is the case, or whether the act-does not intend the tax to be levied as is provided by the-free turnpike laws.
    What the language of “ these proceedings” refers to and implies is vague and ambiguous. To refer it to the survey, estimates, and letting only, would be to give it no force or effect; for such are not the duties of county commissioners,, in regard to free turnpike roads. 78 Ohio L. 96 et seq.
    
    
      The other duties of the commissioners in constructing free turnpikes have no apparent connection with the duties prescribed in this case, and under this act.
    It is provided in the state constitution that no tax shall 'be levied, except in pursuance of law. Article 12, § 5. Here we have an act of the legislature which in itself refers "to another law, or other laws, to complete its sense in some essential particulars, and those other laws are found to apply as well to the levy as to any other duties of the commissioners.
   Okey, J.

The action is to compel the commissioners of Eranklin county to levy a tax “ for the purpose of building, grading, and graveling or maeademizing ” a road, commencing in the city of Columbus and intersecting a public road near the city. The road to be improved passes Green Lawn Cemetery, which is open to the burial of the citizens •of the county generally, under the rules of the cemetery .association, and the improved highway will accommodate a large portion of the citizens of the county in passing to and from the cemetery. The tax is provided for by an act passed in 1877, set forth in the statement of the case, but the commissioners decline to make the improvement, on ■several grounds, which we will now consider.

Because the act is “ vague aud indefinite in its terms.” Cases may be found in which statutes have been held void -on such ground; but, as decided in Cochran v. Loring, 17 Ohio, 409, though a law is imperfect in its details, it is not void, unless it is so imperfect as to render it impossible to execute it.” While the act of 1877 is not clear and definite in its provisions, we do not think it is void on that ground. Its meaning may be ascertained from its terms, construed in connection with other statutes. The act contains a mandatory direction to the commissioners to levy a special tax to improve a road. The amount of the tax is to be ascertained from the report of an engineer to be appointed by them. The tax is to be levied on all the taxable property of the county. Though called a special tax, it is only special in the sense that it is for a single specified purpose. True, the act provides that the commissioners “ shall be governed by the laws now in force, so far as they may be applicable, relating to their duties in regard to free turnpike roads;” but that relates to the supervision and control which the commissioners exercise with respect to the construction and repair of such roads, and not to the mode of levying the tax. This is rendered certain by reference to other statutes. By an examination of the various acts then in force relating to turnpike roads which might ■come within the control of the county commissioners (see Rev. Stat., §§ 4753-4875), it will be seen that the mode of raising money for the purpose of constructing turnpike roads which might be free, was not uniform. The construction of such a road might be paid for by a tax levied on the taxable property of the county, or by what is known as the one-mile assessment, or by the two-mile assessment. In such condition of the law there is, of course, nothing in the ■statute under consideration which would support a local assessment, and this leaves no room to doubt that the tax is to be levied, as already stated, on the taxable property •of the county.

It is said that the act violates article 2, section 26 of the constitution, which provides that all laws of a general nature shall have a uniform operation throughout the state.” But this provision does not affect the power of the legislature to pass local laws where the acts are in their nature local. Cricket v. State, 18 Ohio St. 9 ; State v. The Judges, 21 Ohio St. 1; State v. Covington, 29 Ohio St. 102 ; McGill v. The State, 34 Ohio St. 228, 269. The act in question is not inhibited by that provision of the constitution.

The power of the legislature to pass a mandatory stat-. ute, requiring the commissioners to levy the tax and improve the road in question, is denied by the defendant. The only provision which the constitution contains with respect to the county commissioners is the following: “ The commissioners of counties, the trustees of townships, and similar boards, shall have power of local taxation, as maybe prescribed by law.” Art. 10, § 7. Manifestly this is i«o limitation on the power of the general assembly; and the in quiry therefore is as to the extent of such power. That it is only legislative is conceded, but that is undeniably a very broad power and includes, generally, the right to direct, in invitwm, the construction and repair of public highways, and the levy of taxes to defray the necessary expenses thereof. That the power is liable to great abuse is denied by no one, but the responsibility, as well as the power, rests with the legislature. Many cases may be found which go further in support of this principle than we might be willing to go. People v. Flagg, 46 N. Y. 401; Philadelphia v. Field, 58 Penn. St. 320. See Lima v. McBride, 34 Ohio St. 338.

The decisions with respect to the statutes in which there has been an attempt to assess locally for a work of general public utility (Washington Avenue, 69 Penn. St. 352), or where it was sought to compel a city to erect fountains and purchase and embellish parks (Park Commissioners v. Detroit, 28 Mich. 228), and other cases of a kindred character, show that legislative power with respect to taxation is not unlimited. It is not our purpose to enter into an examination as to the extent of those limitations, but to say that this case does not fall within them. Indeed, a careful examination of the cases cited on behalf of the commissioners, will show that none of them are in opposition to the validity of this act.

The fact that the road is in part within the city in no way militates against the right to levy the tax (Wells v. Laughlin, Butman v. Fowler, 17 Ohio, 99, 101); nor are the commissioners exonerated from levying the tax now, on the ground that they failed to perform the duty in June, 1877, as required by the statute. State v. Harris, 17 Ohio St. 608.

We are satisfied that here was a duty specially enjoined by law on the county commissioners, which it was their duty to perform, but which they have failed to perform.

Peremptory writ awarded.  