
    Cable et al. v. The President and Trustees of the Ohio University.
    1. The payment of the additional rent which the President and Trustees of the Ohio University are authorized to demand under the proviso in section 12 of the act of February 18,1804 (Ohio Land Laws, 226), is not required to bo stipulated for in the leases made under the act; nor are the leases required to contain such a stipulation by the amendatory act of 1805, in order to justify the demand for such rent. The right to make the demand springs from the statute, and is independent of any express stipulation therefor, in the lease.
    2. The resolutions of the Board of Trustees, passed June 21, 1876, providing for the collection of such additional rent; is not rendered invalid by the fact that the trustees were required to take such action by the act of March 30, 1875. 72 O. L., 177.
    3. By the fair construction of said resolutions, no discretion is given to the Treasurer of the University to determine the amount of rent to be collected; but he is required to collect such an amount of additional rent as equals the taxes imposed on property of like description by the State.
    4. The right to exact the additional rent does not extend back of the current rental year of the term.
    Appeal. Reserved in tbe District Court of Athens County.
    The plaintiffs brought an action for themselves and others, lessees of Ohio University farm lands, against the defendants, the President and Trustees of the Ohio University, a corporation of that name, in the court of common pleas of Athens county, Ohio, to restrain the defendants from collecting certain additional rents for said farm lands.
    The petition, as amended, is largely made up of acts of the general assembly and averments as to their intendment and construction. The petition, as amended, contains the following averments, to wit:
    “ That by two resolutions of congress of the 23d and 27th of July, 1787, the ‘ Board of the Treasury ’ of the then general government was authorized to contract with any persons for the grant of land described in them, on the north-west side of the Ohio river, and within the present state of Ohio ; one of the terms of the contract for the grant to be, that not more than two complete townships were to be laid off within the grant by the purchasers, to be given perpetually for the purpose of an university, and to be applied to the intended object by the legislature of the state thereafter formed, and including the land. Under the resolutions the Board of Treasury, on the 27th of October, 1787, entered into a contract for the grant, with the agents of the directors of the Oiiio Compauy of Associates on the conditions of the resolutions. The agents of that company, thereupon, laid off for the purpose of an university, the eighth and ninth townships of the 14th range in said tract. Under the act of congress of April 21, 1792, the land including the two townships was in that year patented by the United States to the directors of the company, whereby the two townships became and were given perpetually for the purposes of an university. That the legislature of Ohio, on the 18th of January, 1804, passed an act entitled ‘An act establishing an university in the town of Athens,’ which act is attached to and made a part of the petition, as ‘Exhibit A,’ and which, including other things not important for consideration, by the 1st section established the Ohio University, and by its 2d section, created in it a body politic and corporate under the name of ‘ The President and Trustees of the Ohio University;’ and by its 11th section vested in such corporation the twro townships of land for the sole use, benefit and support of the university forever; and by the 12th section provided for the appraisement (and laying oil into farm lots, by the trustees, of not less than eighty, or more than two hundred and foyty acres) of the lands of the townships, not including those in the town of Athens, within six months of the passage of the act; and after having given four weeks’ notice, to malee out leases of the tracts to such of the ‘present occupants’ as should apply within three months after such notice, and to all persons who should apply thereafter, for the term of 90 years, renewable forever, on a yearly rent of six per centum on the amount of the valuation so made, the land so leased to be subject to re-valuations at the end of thirty-five, sixty, and ninety years from the commencement of the term of each lease, the rent arising on tlie valuation at tlie end of 90 years, to shift and adjust itself at the end of each twenty years, to correspond to the average price of wheat at Marietta for the five preceding years; the leases to reserve a right of distress and reentry for non-payment of rent, at any time when it shall have been due two months, the said 12th section terminating with a proviso, as follows.:
    “ ‘ Provided always, that the said corporation shall have power to demand a further yearly rent on the said lands and tenements, not exceeding the amount of the tax imposed on property of like description by the state, which rents shall be paid at such time and place, and to such person, and collected in such manner as the corporation shall direct.’
    “ By the 13th section of the law, it was provided that the town of Athens should be laid off conformable to a certain plan, and being then laid off and the plat recorded, the trustees of the university, first giving six weeks’ notice, were to ‘ proceed to sell from time to time, at public auction, such of the house and out-lots as they may think proper,’ for which lots, on payment being made, or satisfactory security given, according to the conditions of such sale, they shall execute to the purchasers, respectively, leases for the term of 90 years, renewable forever, on an annual rent equal to and not exceeding six per centum of the amount of the purchase-money, which lots, with the improvements which may be made on the same, shall be subject to such further yearly rent as may be equal to the tax imposed, from time to time, on property of like value and description, by the state.’
    “ By section 14 it is provided, ‘ That the clear annual rents, issues and profits of all the estate, real and personal, of which said corporation shall be seized or possessed in their corporate capacity, shall be appropriated to the endowment of the University, in such maimer as ■ shall most effectually promote the end of the institution. ’
    
      “ By section 17: ‘ That the lands in the two townships appropriated and vested as aforesaid, with the buildings which are or may be erected thereon, shall forever be exempted from all state taxes.’
    
      “ That on the 21st of February, 1805, an act was passed by the Legislature of Ohio, amendatory of the foregoing act of February, 1804, made a part of the petition as ‘ Exhibit B,’ — by the first section of which act five persons therein named were appointed appraisers of the said two college townships, and they, or any three of them, were required to appraise the townships, within nine months at the present (then) real value as in its original and uncultivated state, and report to the Board of Trustees of the University, £ and the said trustees shall lease the same to any persons who have or may apply, agreeable to laxo, for the term of 99 years, renewable forever, with a fixed annual rent of 6 per centum on the appraised valuation : Provided, that no lands shall be leased at a less valuation than at the rate of $1.75 per acre.’
    “ Sec. 2. £ That the commissioners shall meet on the 1st day of April, at the town of Athens, and proceed to discharge the duties imposed on them by this act, and the act to which this act is an amendment. . . . ’
    £.£Seo. 5. £ That so much of the aforesaid act, passed 18th of February, 1804, as is contrary to this act, be and the same is hereby repealed.’
    “ That on the 16th of November, 1832, the corporation, — the land having been appraised under the act of February 21,1805, —leased by written indenture to the plaintiff Goodspeed, 80 acres of said land, from January 1, 1833, renewable forever, at an annual rent of $9.84, being 6 per centum of such appraised valuation. This indenture is part of the petition as £ Exhibit C,’ and grants in this language: £ That the said President and Trustees by virtue and in pursuance of the trust reposed in them by a law of the state of Ohio, entitled . “ An act establishing an University in the town of Athens,” passed the lSth day of February, A. D. 1804, and another law of the said state, entitled ££ An act to amend an, act entitled an aet establishing an University in the town of Athensf passed the 21 st day of February, 1805, for and in consideration of tlie rents and covenants hereinafter reserved and contained, have leased, let, and to farm let tinto the said Ezra Goodspeed, the 80 acres of land described in it.’
    
      “ That on the 22d of November, 1810, the corporation, the land having been appraised under said law of 1805, leased by written indenture to Josiah Coe, for 99 years from January 1, 1808, certain land in said township, at an annual rent of $17.93, being 6 per centum on the appraised value, which land, by mesne conveyances, is vested in the plaintiffs, James R. Cable and Charles R. Cable, which lease is made a part of the petition as ‘ Exhibit D,’ and contains the same language as the first-named lease, showing that it was made by the President and Trustees of the Ohio University, in pursuance of said two acts of the Legislature.
    “ On the 4th of February, 1826, an act was passed by the' legislature of Ohio, entitled ‘ An act authorizing the. Trustees of the Ohio University to dispose of certain lands,’ which is made a part of the petition as £ Exhibit E,’ and was amended January 10, 1829, by an act entitled £ An act to amend the act entitled an “ act authorizing the Trustees of the Ohio University to dispose of certain lands,” ’ made a part of the petition as £ Exhibit F; ’ the first of which authorizes the Trustees of the University to sell and convey, in fee simple, all the lands in the college townships, not encumbered by outstanding leases, and to convey to any lessee of such lands the fee simple on payment to the treasurer of the board, such sum as will, at an in-’’ terest of 6 per centum per annum, yield the sum which is' yearly reserved in such lease; the money arising on such sales to be deposited in the state treasury, to bear interest at 6 per centum, for which interest the faith of the state was pledged;" and by the last-named act providing that the Board of Trustees' should report annually to the auditor of state, the amount of money arising from such sales, to be certified by him to the' treasurer of state, and upon the money being deposited with him under said law of 1826, to receipt for the same, which receipt the treasurer of said board should deposit with the auditor of state, who was to charge the amount to the treasurer of state, and credit the university therewith.
    “ The plaintiffs further aver that since the parsage of the act of Feb. 21, 1805, the corporation never claimed any right to have or demand any rent from the lessees of the land excepting'the fixed yearly rent which, the lessees respectively stipulated to pay by their leases, and no other rents have been demanded or paid; and that it has been the understanding of all in interest, that the lands were subject to no other than the fixed yearly rent stipulated in the leases to be paid. That construction of the act of 1805 has been uniformly acted upon by all concerned, until the adoption of the resolutions of the corporation on 21st of June, 1876, which resolutions are made a part of the petition, and which resolutions recite that the law under which the university was established exempted the lands of the university from state taxation, and vested in the institution the right, in addition to a rent of 6 per cent, per annum on the valuation of the lands, a further yearly rent, not exceeding the taxes imposed on property of like description by the State; and that the General Assembly,' by an act which took effect on the 1st of July, 1875, had required the trustees to levy and collect said rent; and instructed the treasurer of the university to proceed and transfer to proper books the valuations of the lands of the townships made for county taxation, and collect such further yearly rent, not exceeding the taxes imposed on property of like description by the state.
    “ That on the 10th of March, 1843, the legislature of the state passed an act entitled c An act to declare the true intent and meaning of the first section ’ of said act of February 21,1805, whereby the true intent and meaning of .the act was declared to be ‘ That the leases granted under and by virtue of said act, and the one to which that was an amendment, should not be subject to a re-valuation at any time thereafter, as was provided for in the act to which that was an amendment,’ which act is made part of the petition as ‘ Exhibit IT.’
    “ That the plaintiffs file the petition for themselves and 227 other persons holding similar estates in said university lands, lying outside of the town of Athens. That the defendant, E. IT. Moore, is the treasurer of the corporation, and threatens to carry the directions of the resolutions into effect. That the resolutions operate to the injury of the plaintiffs, and all the persons in whose behalf the suit is brought,' and that the suit is necessary to prevent a multiplicity of suits.
    
      “ Tlie prayer of tlie petition is that an injunction may bo granted to restrain the collection of the additional tax, and that said claim may be adjudged unfounded and without right and illegal, and for such further relief as the nature of tlie case may require.
    “ The amended petition was demurred to by the defendants, for the reason that it did not state facts sufficient to constitute a cause of action, which was sustained by the court of common pleas. The plaintiffs appealed to the district court, by which court the case was reserved to the supreme court for hearing on the demurrer.”
    The following is a copy of the resolutions passed by the Board of Trustees of the Ohio University, at their annual meeting, June 21, 1876 :
    “TViieüeas, The law of the state under which the Ohio University was established, exempted the lands of the university from state taxation, and vested in the institution the right to collect, in addition to a rent of six per cent, per annum on the valuation of tlie lands, a further yearly rent not exceeding the taxes imposed on property of like description by the state; and,
    “’WiiEKEAS, In view of the fact that the Trustees 'have never collected this further yearly rent not exceeding the state-taxes, the General Assembly of Ohio has passed an act requiring them to levy and collect the said rent, which act took effect on the first day of July, 1875 ; therefore be it
    “ 1. Iiesol/oed, By the Board of Trustees of the Ohio University, that the treasurer of the university is hereby instructed to provide himself with the books necessary for the purpose, and transfer to them from the duplicate of the auditor of Athens county, the present valuations placed, for the purpose of county taxation, on the leasehold lands of the university.
    “ 2. Hesolved, That the said treasurer is hereby directed to proceed on the first day of January, 1877, to the collection' of the said rents then due for the year and a half, beginning on tlie first day of July, 1875, and to collect the same hereafter, annually, ou the first day of January.
    
      “ 3. Besolved, Tliat lease-holders shall be allowed the same privilege in the payment of this rent which is allowed them by law in the payment of the other, namely : That no rents paid on or before the first day of March in each year, shall be considered in arrears.
    “ Ohio University, Athens, June 21, 1876.
    Attest: J. M. Dana,
    
      Secretary of the Board.”
    
    Harrison, Olds da Marsh, and O. H. Grosvenor, for plaintiffs in error.
    
      Perry da Jenney, and Be Steiguer, Jewett da Slattery, for defendants in error.
   White, J.

The principal contention in this case may be resolved into two questions:

1. Whether the power vested in the President and Trustees of the Ohio University by section 12 of the act of February 18, 1804 (Ohio Land Laws, 226), to demand a further yearly rent, on the land leases under the act, not exceeding the amount of state tax imposed on like description of property, is required, in order to justify its exercise against the lessees, to be incorporated into the leases, and express provision therein made for the exercise of the power ?

2. If such is not the effect of the act of February 18, 1804, whether the amendatory act of February 21, 1805 (Id. 232) does not require such provision to be made in the leases.

A brief reference to some of the provisions of the act of 1804 will enable us to answer the first question. Section 3 of the act prescribes, that certain persons named, and their successors, shall be, and they are thereby created a body politic and corporate, by the name of “ The President and Trustees of the Ohio University.” Section 11 provides : “ That the two townships, eight and nine, in the fourteenth range of townships, within the grant of land made by congress to' the Ohio Company of Associates, be, and they are hereby vested in the corporation by this act created, in trust, for the sole use, benefit and support of the said university forever.”

Section 17 is as follows: “ That the lands in the two townships, appropriated and vested as aforesaid, with the buildings which are, or may be erected thereon, shall forever be exempted from all state taxes.”

Section 12 provides for laying off the lands (except such as are included in the town of Athens), or such part thereof as may be deemed expedient, into tracts of not less than eighty, nor more than two hundred and forty acres, and for estimating the value of the same as in their original and unimproved state. The section also provides that after the lands shall have been thus laid off and estimated, the trustees, after giving notice as prescribed in the act, “ shall proceed to make out leases of said tracts to such of the present occupants as shall apply for the same within three months after such notice given, and to all persons who shall apply thereafter, for the term of ninety years, renewable forever, on a yearly rent of six per centum on the amount of the valuation so made.” The section also provides that, “the land so leased shall be subject to a re-valuation ” at certain periods, and that the lessee shall pay a yearly rent of six per centum on the amount of the re-valuation. At the expiration of the term of ninety years the rent is subject to be regulated by the price of wheat, in the mode provided for in the section.

The proviso to the section, and on which the present controversy arises, is as follows: “ Provided, always, that the said corporation shall have power to demand a further yearly rent on said lands and tenements, not exceeding the amount of tax imposed on property of like description by the state, which rents shall be paid at such time and place, to such persons, and collected in such manner as the corporation shall direct.”

Now, it seems clear to us, that the statute does not contemplate that the leases should contain a provision for the payment by the lessees of the additional rent provided for in the proviso. This additional rent is not to exceed the amount of the state tax on libé description of property. The property leased is held by the corporation in trust for the sole benefit and support of the university; and the exemption from state taxes is intended for the benefit of the trust. The rent which the corporation by the proviso is authorized to demand, is in addition to what is stipulated for in the lease.

The trustees were to make leases for the term of ninety years, renewable forever, on a yearly rent of six per centum on the first valuation. The lands so leased ” were, by force of the statute, subject to a re-valuation ; and they were also subject to the additional charge or rent provided for in the pro viso. The right to demand this “ further yearly rent ” springs from the statute, and is independent of any express stipulation therefor in the lease.

The answer to the second question depends upon whether the proviso to section 12, above referred to, was repealed by the act of February 21, 1805. That it was not expressly repealed is conceded. The only question is whether the proviso was repealed by implication. The only section in the act of 1805 bearing on the question is the first. That section appoints five persons named as appraisers, and requires them, or any three of them, to appraise townships eight and nine, within nine months, at the present real value of the land in its original and uncultivated state, and to make report thereof to the trustees. It also provides that “ the said trustees shall lease the same to any persons who have or may apply, agreeable to law, for the term of ninety-nine years, renewable forever, with a fixed annual rental of six per centum on the appraised valuation; provided, that no land shall be leased at a less valuation than at the rate of one dollar and seventy-five cents per acre.”

We discover no repugnancy between this section and the power vested in the corporation by the proviso contained, in section 12 of the act of 1804. As already remarked, the demand -which the corporation is authorized to make, under the proviso, is in addition to the rent stipulated for in the lease, and exists independently of such stipulation. The language of section 1 of the act of 1805, already qifoted, refers to what is to be embodied in the lease, and has no reference to the additional charge, in lieu of taxes, which the statute authorizes to be imposed, irrespective of the stipulations in the lease. Hence, whether we regard the matter now in controversy as res integra, or as controlled by the decision in Mc Vey v. Ohio University (11 Ohio, 131), we are led to the same result.

3. The validity of the resolutions of the board of trustees, under which the additional rent is demanded, is questioned on several grounds.

1. It is claimed that the resolutions were not passed by the trustees in the exercise of their own judgment, but under the imperative command of the legislature.

The substance of the objection is, as we understand it, that the trustees, in adopting the resolutions, acted under coercion. In answer to this objection it may be said in the first place that no such fact is averred in the petition, and, in the absence of such averment, the fact cannot be presumed. Furthermore, we need not now inquire into the extent to. which the action of the trustees is subject to legislative control. Whatever may be the extent of such control, it existed when the leases were made, and they were taken subject to it. But assuming, in the present instance, that the trustees in their action were not subject to be controlled by the legislature, they must in that case be presumed to have known it, and, hence, to have regarded the action of the legislature as merely in the nature of advice or recommendation.

2. It is also objected that the resolutions do not determine the amount of further rent which the treasurer is directed to collect, but undertake to delegate to him the power to determine the amount.

It seems to us that on a fair construction of the resolutions no discretion is given to the treasurer to determine the amount of rent to be collected; but that he is required to collect such an amount of additional rent as equals the taxes imposed on property of like description by the state.

3. The resolutions are also objected to on the ground that they are retroactive in their operation.

The resolutions were passed June 21, 1876, and directed the treasurer to proceed on the first day of January, 1877, to collect the additional rent for the year and a half next preceding, and thereafter, annually, on the first day of January.

In the opinion of a majority of the court, the right to exact the additional rent does not extend back of the year of the term current at the time of the adoption of the resolutions. From tire leases attached to the petition, it appears that in each of those instances the term began on the first of January, and that the rent is payable on the first of January, at the end of each successive year of the term. In those instances the current year of the term at the time of the adoption of the resolutions, was the year beginning January 1,1876, and ending January 1, 1877.

The power of the corporation is to demand “ a further yearly rent; ” and it seems to us this power cannot be exercised with respect to years of terms that are past, but must be limited to the current year, and to those that are to come.

If the additional rent can be exacted for six months of a preceding year of the term, we see no reason why the exaction may not be extended back indefinitely. True, the statute provides that such additional rent is to be paid at such time and place, and to such person as the corporation shall direct. But the question here is, to what extent does the determination of the corporation become operative upon the lessees, and bind them to pay the additional charge? As already remarked, it seems to us the charge cannot be made to extend back of the current rental year of the lease.

The demurrer to the petition will be overrruled, and the collection of the additional rent to the extent above indicated will be enjoined ; and as to all other matters, the petition will be dismissed.

Johnson, J., being a trustee of the university, did not sit in the case.  