
    Eben Newton and others v. The Board of Commissioners of Mahoning County.
    1. The act of "February 16, 1846, to erect the county of Mahoning, and ■which provides that the seat of justice should he at the town of Oanfield, hut that before the seat of justice should be considered permanently established there, the proprietors and citizens of Canfield should make certain specified donations toward furnishing the necessary county buildings, does not create or bave the effect of a contract between the state and the proprietors and citizens of the town, depriving the state of the power to remove the county seat from Canfield, or to remove it without making compensation to the donors, or to the present proprietors and citizens of the town.
    
      2. The second section of the act of April 9, 1874, which provides that the first section thereof “ shall talce effect, and be in force when and as soon as the same shall be adopted by a majority of ail the electors,” . . . “ and when suitable county buildings shall have been erected,” by the citizens of Youngstown, is not to be construed as making the act “to take effect upon the approval of any other authority than the General Assembly,” contrary to the provision of section 16, article 2, of the constitution ; the proper construction of said section of the act is, that the first section thereof shall become a law when adopted by the electors, and be enforced or carried into execution when the buildings shall have been erected.
    3. The city council, in cities of the second class, having no board of improve ments, have power to sell and convey real estate of the city, without any recommendation from such a board.
    4. A deed by such corporation for the conveyance of city property, for a money consideration expressed in the deed, passes to the purchaser a legal title, although the consideration, so expressed, is far below the real value, or merely nominal.
    Reserved in the District Court of Mahoning county.
    This is an action by citizens and owners of property in the town of Canfield, Mahoning County, to enjoin the defendants from removing the county seat from Canfield to the city of Youngstown, or taking steps for that purpose. The case comes here upon the petition and answer, and a special finding of facts by the District Court, aud is substantially as follows :
    The county of Mahoning was created by the act of February 16,1846.
    The first section of the act provides that the territory designated shall constitute a county, to be known by the name of Mahoning, “ with the county seat at Canfield.”
    The eighth section of the act is as follows:
    “Sec. 8. That before the seat of justice shall be considered permanently established at Canfield the proprietors or citizens thereof shall give bond, with good and sufficient security, payable to the commissioners of said county, hereafter to be elected, for the sum of five thousand dollars, to be applied in erecting public buildings for said county; and that the citizens of Canfield shall also donate a suitable lot of land on which to erect public buildings.”
    In pursuance of this enactment, the citizens of Canfield executed the required bond for five thousand dollars to the board of commissioners. They then erected, upon a lot of land situate in the town, and owned by Eben Newton, a court-house, worth at least ten thousand dollars; and Eben Newton conveyed the lot, with the building, to the commissioners, reciting in the deed that the lot was to be used “ for the sole and exclusive purpose of erecting public buildings for the county of Mahoning.” The board of commissioners accepted this conveyance in full satisfaction of the bond for five thousand dollars, and have ever since occupied and used the building as a court-house, Canfield having ever since been, and still being, the county seat of the county.
    On the 9th of April, 1874, the legislature passed the act of that date, “ to provide for the removal of the seat of justice of Mahoning county from the town of Canfield to the city of Youngstown, in said county.” The first and second sections of this act are as follows :
    “ See. 1. That from and after taking effect of this section of this act, as hereinafter provided, the seat of justice in the county of Mahoning shall be removed from the town of Canfield, and shall be fixed, until otherwise provided by law, at the city of Youngstown, in said county.
    “ Sec. 2. That the foregoing section of this act shall take effect and be in force when and so soon as the same shall be adopted by a majority of all the electors of said Mahoning county, voting at the next general election after the passage thereof, and when suitable buildings shall have been erected, as hereinafter provided.”
    Sections three and four of the act make provisions for submitting to the vote of the electors of the county the question of removal. Then follows section five, which provides :
    “ That in case a majority of the electors of said county •of Mahoning shall vote ‘for removal/ as heretofore provided, the seat of justice and county seat shall be deemed and taken to be removed from Canfield, in said county, to the city of Youngstown, in said county, and to be located at said city of Youngstown; provided, however, that nothing in the act shall be so construed as to authorize the removal of said seat of justice to the city of Youngstown, until the citizens of the city and township of Youngstown shall have donated a lot or lots of land in the city of Youngstown, and of sufficient size and suitably located to accommodate the court-house, jail, and necessary offices for said county; and shall have erected thereon, or shall have caused to have erected thereon, and completed thereon, suitable buildings for court-house, jail, and all offices and rooms necessary for the transaction of all the public business of said county, at a cost for said buildings of not less than one hundred thousand dollars, and to the satisfaction and acceptance of the commissioners of said county; and all such buildings shall be fully completed within two years from the date of the election at which this act shall be ratified ; and said commissioners shall not, nor shall any other authority of said county, levy any tax on the taxable property of said county for said land or building; provided, that the citizens of Youngstown may, within said two years, build said public buildings, and tender the same to said connty commissioners.”
    This act makes no provision for compensating citizens or proprietors of Canfield for any loss occasioned to them by the removal of the county seat.
    Soon after the passage of the act of 1874, the question of removal was duly submitted to the vote of the electors of the county, who, by a large majority, decided in favor of the removal. The citizens of Youngstown, or some of them, thereupon associated themselves together, “ for the purpose of procuring the necessary funds, and erecting the public buildings, as provided in the fifth section of said act,” and for that purpose appointed a “ building committee.”
    On the 16th of March, 1875, there being no hoard of improvements in said city, the city council passed an ordinance authorizing the city mayor to convey to the building committee, for the nominal consideration of ten dollars, two certain city lots, owned by the city, to be used by the committee as a site upon which to erect a court-house and other county buildings, agreeably to the requirements of said act of 1874.
    This conveyance was accordingly made by the mayor, and the committee “ proceeded to construct, and are causing to be constructed upon one of said city lots, at a cost of one hundred thousand dollars, or upwards, the public buildings as provided in said act, and design, upon completion thereof, to convey the same to the commissioners of said county, as and for a performance of the conditions provided in said .act.” And the finding of the District Court is, “ that there is good reason to believe that upon the completion of said buildings ... as provided in said act, and upon the execution and tender by said building committee to said commissioners of a deed therefor, the said commissioners will accept the same, and proceed to do any acts pertinent to their office as commissioners, which may be necessary for and pertinent to the removal of said county seat to the -city of Youngstown.”
    
      Geo. W. Tuttle and F. G. Servís, for plaintiffs :
    I. The act of 1846, and the acts of the persons therein named, constitute a valid contract between those persons and the state, which the act of 1874 undertakes the abrogation of without compensation, and therefore the latter act is unconstitutional. 3 Story on Const., secs. 1385, 1836; art. 1, sec. 19 of the State Constitution.
    This case is not an exception to the incapacity of a state to impair the obligations of a contract. 2 Parsons on Cont. 681.
    II. The act of 1874 is opposed to sec. 16, art. 2 of the constitution of Ohio, and is therefore inoperative and void.
    The words “take effect,” in the act of 1874, are undoubt•edly used in the same sense as in the constitution (secs. 26, 30, of art. 2). If they are not, then the act must take effect in some other manner than the constitution allows, and is for that reason unconstitutional.
    It is evident that the sections of the act, subsequent to the first and second, do not remove the county seat. If they do, it is contrary to the express words of the constitution, for the provisions in those sections take effect from the passage of the act, and the constitution declares that provisions which remove county seats shall not thus take ■effect.
    The removal, if it is effected at all, is effected by the first section, and the proposition on our part is, that this section is made to take effect, not upon the adoption of it by vote of the county, but upon the additional condition of suitable buildings having been erected by the citizens of Youngstown, and by them contributed to the county, with the lot on which they stand. ¥e claim that by the express terms of this act it can not take effect until the contribution provided for has been made, and that its taking effect-'in that manner is prohibited by the constitution.
    III. It is a condition of the act of 1874, that the public building and lot shall be furnished to the county at the expense of the citizens of Youngstown. This condition precludes the buildings and lot being furnished at the expense of the city of Youngstown.
    The conveyance from the city is void, because the conveyance was not made as required by section 676 of the municipal code.
    The city is only authorized to sell its real estate upon the recommendation of the board of improvements.
    
      A. W. Jones, B. F. Hoffman, Greorge F. Arrel, and Thos. W. Sanderson, for defendants :
    I. The duty imposed upon the commissioners by the law of 1874 was not to determine what the law should be, or any of its provisions, but the duty,strictly,was to determine whether the citizens of Youngstown had performed the conditions precedent which were made so by the legislature. This did not invalidate the act. G. W. Z. JR. JR. Co. v. Clinton Co., 1 Ohio St. 87 ; Trustees of Paris Township v. Cherry, 8 Ib. 568 ; IJuston v. Parry Co., 5 Ib. 497 ; Noble v. Noble Co., Ib. 527; Peck v. Weddell, 17 Ib. 271. Nor was the legislature prohibited by the constitution from the exercise of the power assumed by them in the act. Baker v. Cincinnati, 11 Ohio St. 542 ; Cass v. Dillon, 2 Ib. 607 ; Evans v. Dudley, 1 Ib. 437 ; Lehman v. McBride, 15 Ib. 592; Hill v. Higdon, 5 Ib. 244.
    II. There is not enough in the law of 1846 to make a contract with any one.
    A grant to a municipal corporation can not be so made as to take away the legislative power of change, nor can any political organization or institution of government be granted to any individual or body of men so that the government can not resume the same at its pleasure.
    It is a well-settled principle that, as against the government, nothing is a grant, unless it is evidenced by clear and explicit terms, and that no grant can be raised by inference or presumption, and that the rights granted mast be clearly defined. Ohio Life Ins. and Trust Go. v. Debolt, 16-How. 416 ; Jefferson Branch Bank v. Shelly, 1 Black. 446 ; Debolt v. Ins. Co., 1 Ohio St. 574; State ex rel. v. Gin. Gas Co., 18 Ib. 296; Charles River Bridge v. Warren Bridge, 11 Peters, 420 ; 3 Wall. 75.
    
      “Permanent ” is not used in the act of 1846 in the sense that it must remain forever against the will of the people, and such is not the signification of the word. We say of a man that he has a permanent situation; we do not mean that he can never change, but only that he has no present intention of changing.
    III. On the question of the removal being contrary to sec. 10, art. 1, of the Constitution of the United States. Dartmouth College case, 4 Wheat. 518; Marietta v. Fearing, 4 Ohio, 432 ; 1 Ohio St. 89 ; East Hartford v. Hartford Bridge Co., 10 How. 533 ; People v. Morris, 13 Wend. 329 ; Philadelphia v. Fox, 64 Penn. St. 180; Story on the Constitution, secs. 1892, 1893; Cooley’s Con. Dim. 191, 203; Butler v.. Pennsylvania, 10 How. 416; Alley v. Dennison, 8 Texas, 297; Gilmore v. Hayworth, 26 lb. 91; Twiford v. Alamakee Co., 4 Greene (Iowa), 60 ; Terrett v. Taylor, 9 Oranch, 52 ; 16 How. 380; 5 Ohio St. 496.
    The authorities cited under this head apply as well in. answer to the claim of plaintiffs under the 19th section of the bill of rights.
   "Welch, C. J.

The plaintiffs seek to enjoin the defendants from taking any steps for the removal of the county seat in question, on two several grounds. They say, in the first place, that the act of 1874 is unconstitutional. In the second place, they say that the measures adopted, and threatened or intended to be carried into execution, are not in pursuance of the provisions of the act.

The defendants, while they deny both of these propositions, insist also that they have done no act, and as a board-have made no threats or declarations of intention to remove the county seat, and that the action, therefore, is prematurely brought.

We think this position of the defendants is not well taken. The fact that the court below has found upon the-evidence that “ there is good reason to believe ” that the defendants will proceed to act in the premises, and complete the measures in progress for the removal, is sufficient to justify the interference of the court by injunction, provided either of the propositions of the plaintiffs can be maintained. In other words, if the act of 1874 is unconstitutional, or if the measures adopted and in process of completion are not substantially in accordance with its requirements, then the injunction should be granted.

The plaintiffs claim that the act of 1846 is unconstitutional, because it is in the nature of a contract, to the effect that if the citizens of Canfield would make the donation required, the county seat should never be removed from Canfield, or, at least, should not be removed without making compensation to them; and that the law of 1874 impairs the validity of this contract, and is, therefore, contrary to the constitution of the United States. To this proposition, we can by no means assent. "We think there are three good reasons why it can not be admitted as the law of the case.

1. The power to establish and remove county seats is one which can not be parted with by legislative contract. It is not the subject of contract. Ho case or authority is cited by counsel, and it is presumed none can be shown, sustaining or enforcing any such contract; while several cases are adduced (4 Blackf. 208; 8 Texas, 297; 11 111. 836; 13 lb. 456) to show that it is a contract which there is no legislative power to make.

2. Nothing is better settled than the principle that, in order to make a legislative contract or grant, the words of the act must be certain and direct, and must clearly show the legislative intent. The contract or grant can not be inferred, or made to rest in implication. See 16 Howard, 416; 1 Ohio St. 574; 18 lb. 574; 3 Wallace, 75; 11 Pet. 420. Such is by no means the language of the act of 1846. It merely creates the county, “ with the county seat at Can-field,” and then provides that it shall not be “ considered as permanently established at Canfield,” until the donation is made. Especially ought this rule of strict construction to be applied in a case like the present, where it must be conceded that the exercise of the power, to say the least, is of doubtful constitutionality.

3. If we concede the power, and concede that the language of the act of 1846 sufficiently shows an intention to exercise it, we do not think the contract is violated, or its validity impaired by the act of 1874. By the word “ permanently,” as used in the act of 1846, we do not understand that the county seat was to remain forever at Canfield. The word is surely susceptible of a different and narrower meaning, and surely the nature of the subject-matter requires that meaning. “ Permanently established,” as used in the act, simply means “ established as other county seats are established.” Until the donation should be made, or the commissioners provided for in the general law for locating county seats in new counties should act in the matter, the seat of justice was to be provisionally or temporarily established at Canfield, but subject, as all other county seats were subject, to be changed by future legislation. If, therefore, we are to regard this as a contract, it has been fulfilled on the part of the state. The supposed contract was that the citizens should make the donation in consideration that the county seat should remain at Canfield, until removed by subsequent act of the legislature. The donors have had thirty years’ enjoyment under this alleged contract, and I suppose when the county seat comes to be removed that their property will revert to them again. I do not see on what ground they can justly complain. If there was a contract, they have had its full benefit.

If this reasoning is correct, it fully answers another objection made to the act of 1874, on the ground of unconstitutionality—namely, that it seeks to take private property for public use, and is therefore in violation of section 19, article 1 of the state constitution. If there was no contract or grant, or if the thing granted has been fully enjoyed, then there is no private property to be taken.

It is claimed, also, that the act of 1874 is in conflict with section 16 of article 1 of the state constitution, because it is made to take effect upon the approval of an authority other than that of the general assembly, to wit, “ when suitable buildings shall have been erected.” If the act will admit of a construction which makes it consistent with the constitution, we are bound to adopt that construction. It seems to us that there is no difficulty in the way of such a construction here. ¥e know that the words “take effect,” or the words “ be in force ” sometimes mean “ become a law,” and sometimes mean “be enforced or executed.;” and that the context must be looked to in order to determine which of the two meanings they are to have. We think it quite manifest, when the second and fifth sections of the act are read together, that these words, as used in the second section—at least the latter words, “ and be in force ”—when applied to the erection of the. buildings, must have the latter meaning; that is, they must be understood in the sense that the law shall not be enforced or carried into execution, till the buildings should have been erected. In the light of the fifth section, we think the second section must be read as providing “ that the first section of the act shall become a law when adopted by a majority of the electors of the county, but shall not be enforced or carried into execution until the buildings shall have been erected.”

But it is objected that the measures adopted and proposed to be carried into execution are not in conformity to the act; that the lots on which the buildings are being erected are the property of the city, and not of individual citizens; and also that the city council has no power to convey them.

If the city has the power to make the conveyance, it is not easy to see on what ground the plaintiffs can object. The law imposes the condition that the citizens shall make the donation ; and if a third party makes the donation for them, it would seem to have the same effect in law as though they made it themselves.

But had the city council the power? The authority given to a city council to sell its real estate, it is said, can only be exercised “ upon the recommendation of the board of city improvements,” and here there was no such recommendation. See Municipal Code, sec. 676.

The answer to this objection is that the city of Youngstown had no such board; and that by section 602 of the code, as amended in 1870, the city council, in such cases, perform all the duties required of the board of -improvements. It is true, as counsel claim, that the power to sell is not a power to give away. But this was not, in form, a gift. The consideration named in the deed is “ ten dollars,” which in law, though in this case merely nominal, is sufficient to support the legal conveyance. The legal title passed by the conveyance, and it can only be avoided, if at .■all, by a bill in chancery, at the suit of the beneficiaries of the property. When such a bill is filed, it will be time •enough to consider the question whether their rights have ■not been lost by standing by and silently permitting the buildings to be erected upon the lots. It will then be, perhaps, time enough for the citizens of the city and township to determine whether they will raise money and pay the •city the full value of the lots.

We fail, therefore, to see any good reason for granting the injunction sought, and the petition must be dismissed.

White, Rex, Gilmore, and McIlvaine, JJ., concurred.  