
    The Pittsburgh, Fort Wayne & Chicago Railway Co. v. Martin, Treasurer.
    
      Action against county treasurer — Enjoining collection of taxes— Substitution of incoming treasurer■ — Payment of taxes no bar to prosecution of error — Invalidity of act of May 4,1891 (88 Ohio Laws, 593) — Constitutional law.
    
    1. The act of May 4, 1891 (88 O. L., 593 ), entitled “An act relating to certain cities of the fourth grade of the second class, ” is in conflict with section one of article 13 of the constitution of this state, and is therefore void.
    2. An action against a county treasurer for the purpose of enjoining the collection of taxes, is in its nature against the office, rather than against the person filling such office. In case of a change of incumbent, the action may proceed as commenced, or the new treasurer may be substituted.
    3. In an action to enjoin the collection of taxes levied under an unconstitutional act, the payment of such taxes after the dissolution of the injunction on final hearing, does not prevent the plaintiff from prosecuting error to test the validity of the act, when by its provisions other taxes are to be levied for one or more years.
    (Decided October 29, 1895.)
    
      Error to the Circuit Court of Columbiana county.
    The body of the petition in the court below is as follows:
    “Plaintiff says that it is a corporation duly organized and existing, and that under the laws of the state of Ohio it is authorized to own and operate a railroad through, or within said state; that it is the owner of a continuous line of railway and right of way, extending from Pittsburgh, in the state of Pennsylvania, through the state of Ohio, to Chicago, in the state of Illinois; that said railway passes through and lies partly within the corporate limits of the city of Salem, Columbiana county, Ohio; that the defendant, John R. Martin, is treasurer of said Columbiana county.
    “Plaintiff further says that heretofore, and during the years 1892 and 1893, the council of the city of Salem made two separate annual levies of tax of four mills on the dollar each, upon all taxable property of said city, for the sole purpose of paying the interest upon, and providing a sinking fund for the final redemption of, certain bonds issued in the name of said city of Salem, by a so-called board of trustees, known as The Trustees of the Salem Railroad, for a fund or amount of money borrowed by said board of trustees for the construction of a line of railway from said city of Salem to the village of Washingtonville, in said county; that the tax so levied has been by said council certified to the auditor of said county, and by him placed on the tax list for said county, and on the duplicate delivered to the treasurer thereof, and that the same now stands assessed and charged against this plaintiff; that said tax so levied upon the property of the plaintiff amounts to the sum of $-.
    “Plaintiff says that on the 13th day of December, 1892, and on the 24th day of July, 1893, and on the 19th day of December, 1893, respectively, during business hours, and at defendant’s office as such treasurer, it made to defendant due tender in legal money of the United States, of all taxes and assessments of any kind then due to or collectible by him as such treasurer, from this plaintiff, ' except the aforesaid tax, levied and sought to be collected for the payment of said bonds and interest; that defendant accepted all the taxes and assessment so tendered, except those levied by or in behalf of said city of Salem, or by the coffncil thereof, which were by him refused; that plaintiff then and there made like tender of the amount of taxes and assessments so refused (to-wit, all taxes and assessments levied by or in behalf of said city, except said tax for the payment of said bonds and interest), which last named tender was by defendant then and there also refused solely on the ground and for the reason and without other cause than that plaintiff did not tender therewith, and refused to pay, the tax levied as above set forth, for the redemption of said bonds and payment of interest thereon. Plaintiff also says that on said 24th day of July, 1893, and at the same time and place, it also made like tender to defendant of the full amount of the penalty of five per cent, then accrued on the installment of said taxes due and payable on or before June 20 of said year, and which had been levied by said council or by or in behalf of said city.
    
      “Plaintiff says, that said money was borrowed and said bonds were issued and sold without warrant or authority of law ; that they are not the bonds of said city of Salem; that said so-called board of trustees had no authority so to do, and never had a legal existence as such board; that said bonds are void; that the said city of Salem is under no legal obligation to redeem the same, or in any way to pay the money so borrowed. Plaintiff says that said city of Salem had at the federal census of 1890 a population of not less than 5,750, nor more than 5,800; but further says that no other city of or within the state of Ohio, of the fourth grade of the second class, had at such census such population.
    “Plaintiff further says, that defendant is. about to, and, unless restrained by the order of this court, will proceed to distrain and sell the goods and chattels of said, plaintiff company, and collect by process of law said taxes so levied by said council of the city of Salem, for the redemption of said bonds and payment of interest on the same.
    “2. For a second cause of action plaintiff adopts, and makes part hereof, all the averments of its. first cause of action as fully as though the same were here copied, and further says, that said money was borrowed and said bonds issued, and said tax levied solely under and in accordance with the terms of a certain act of the legis] ature of the state of Ohio, entitled £An act relating to certain cities of the fourth grade of the second class, ’ and passed May 4, 1891, and found in Yol. 88, page 593, of the Laws of Ohio.
    “Plaintiff says that said act is a special act conferring corporate powers ; that it is not general in its character, but is special legislation and is unconstitutional and void, and that it conferred no authority on said board of trustees to borrow said money, or issue said bonds, or on said city of Salem, or the council thereof, to levy the said tax for the payment of said money and redemption of said bonds.
    “Wherefore, plaintiff prays that defendant, as such treasurer, be now temporarily restrained, and upon final hearing, he and his successors be perpetually enjoined, first from collecting said tax so levied, and. any that may hereafter be levied, for the payment of the interest on said bonds, and to provide a sinking fund for the final redemption of the same; and second, from imposing upon or collecting from plaintiff any penalty on account or by reason of the nonpayment of the taxes tendered and refused as above set forth.”
    A temporary injunction was allowed and the treasurer filed a general demurrer to the petition, and also filed a motion to dissolve the injunction. The demurrer and motion were both sustained and the plaintiff not desiring to amend its petition, final judgment was rendered in favor of the treasurer and the injunctiou dissolved, on the g’round that the petition does not state facts sufficient to constitute a cause of action, to all of which the plaintiff excepted.
    The circuit court affirmed the judgment and a petition in error was thereupon filed in this court, seeking to reverse both judgments below.
    Harrison, Olcls (& Henderson and J. B. Carey, for plaintiff in error.
    The question for decision in this case is, whether or not the act of the general assembly, entitled “An act relating to certain cities of the fourth grade of the second class,” passed May 4, 1891 (88 Ohio Laws, page 593), is contrary to article XIII, section 1, of the constitution of this state, which ordains that, “The general assembly shall pass no special act conferring corporate powers. ”
    This provision is not only mandatory, but it is applicable as well to municipal as to private corporations. Atkinson v. Railroad Co., 15 Ohio St., 21; State v. Cincinnati, 20 Ohio St., 18; State v. Cincinnati, 23 Ohio St., 445; State v. Mitchell, 31 Ohio St., 592. And that it prohibits the conferring of additional corporate powers upon corporations already existing, whether public or private, is settled by the same decisions. The act therefore, unquestionably confers corporate powers, within the settled meaning of the constitutional provision, State v. Constantine, 42 Ohio St., 437; The State ex rel. v. Smith et al., 48 Ohio St., 211; State v. Schwab, 49 Ohio St., 229.
    In view of the object and end of legislative classification of municipal corporations, as declared by this court, an act classifying such corporations must {a) designate several defined classes, (b) into which other such corporations may, by increase of population, enter, (c) from which they may pass into other classes in a mode described by statute; so that (d) all such acts will operate upon every municipal corporation in the state, or upon all municipalities in one of the designated classes, to the end that while each corporation is a member of a given class or grade, it will possess all the powers, and no other, of every other corporation of the grade and class to which it belongs. While grave doubts were at first entertained upon the subject, it was finally held that such classification will have a uniform and continuing operation upon all cities of each class and grade and thereby confer the same powers upon all of them, and for that reason acts conferring- corporate powers upon a defined and established class and g-rade is not a special act conferring corporate powers. On this ground alone did this court sustain the system of legislative classification of municipalities.
    A legislative classification that is designed to operate only in the present and on an existing state of facts, but not in the future, has not been, and cannot be, sustained. The courts have repeatedly so held. State v. County Court of Jackson County, 89 Mo., 237; State v. Herrman, 75 Mo., 340; McCarthy v. Commonwealth, 110 Pa. St., 244; Topeka v. Gillett, 32 Kans., 431; Devin v. Cook County, 84 Ill., 590.
    The city of Salem, Columbiana county, is the only city in Ohio which had, at the federal census of 1890, a population of not less than five thousand seven hundred and fifty, and not more than five thousand eight hundred. These facts show, conclusively, that the intent and contemplated effect of the act was to empower only the city of Salem to ‘ ‘ construct a railway; ’ ’ and upon that ground it is contrary to the fundamental law. ■ If such had not been the purpose of the act, it would have empowered all cities of the class and grade to which that city belongs to exercise the powers conferred by the act. Surely it would not have named precisely the population of Salem, (5,800), according to the federal census of 1890, unless that city alone had been intended as the city to which it should apply.
    This act is, therefore, plainly and palpably special in its nature and operation. Atkinson v. Railroad Co., 15 Ohio St., 21.
    
      In order to be general, such act must:
    First — Place all corporations of the same kind upon a perfect equality.
    Second — Be applicable to all parts of the state. “Thereby securing the vigilance and attention of its whole representation.”
    Third — Be so made that all judicial constructions of their powers, or the restrictions imposed upon them, may be equally applicable to all. corporations of the same class throughout the state. Gilmore v. Norton, 10 Kans., 491; Darling v. Rogers, 7 Kans., 592; City of Council Grove, 20 Kans., 619; City of Atchison v. Bartholow, 4 Kans., 124; City of Wyandotte v. Wood, 5 Kans., 603; State v. Cincinnati, 20 Ohio St., 18.
    It is true that the power to classify municipal corporations has been sustained by this court, and that statutory provisions with respect to any such class are not in conflict with the constitution, under a proper construction of article 13, section 6.
    But, as was said in State ex rel. Remmelin v. Smith, 48 Ohio St., 211, ‘ ‘ it must be conceded that the method of classifying- cities for the purpose of legislation has been carried to the very verge of-constitutional authority. Many conscientious minds believe that it has been exceeded. We have heretofore expressed our doubts upon the subject, but feel bound by the previous decisions of the court (State v. Wall, supra), and are disposed to sustain any laws falling within the principle of those decisions'; but are unwilling to go beyond them and sanction legislation conferring corporate power that is plainly and palpably special in character.” Ayars’ Appeal, 122 Pa. St., 266; Davis v. Clark, 106 Pa. St., 377; Morrison v. Bachert, 112 Pa. St., 323; Weinman v. Railway Co., 118 Pa. St., 192; State v. Pugh, 43 Ohio St., 98; State v. The Judges, 21 Ohio St., 11; State v. Hipp, 38 Ohio St., 199.
    
      B. S. Ambler, Warren W. Hole and G. S. Speaker, for defendant in error.
    It is a general principle of law as laid down in all text books that unless prohibited by the constitution of a state, the legislature, may authorize a municipality to build or aid in building a railroad. 2 Redfield on Railways, 398; 1 Ohio St., 77; 1 Ohio St., 106; 2 Ohio St., 607; 21 Ohio St., 43.
    It is no objection that there is but one city in the state within the particular classification at the time of its enactment. State v. Pugh, 43 Ohio St., 112. An individual exigency may be the originating cause of an act of the general assembly. It is not in the form a statute is made to assume, but its operation and effect, which is to determine its constitutionality. Field v. Commissioners, 36 Ohio St., 480.
    If the law is clearly palpably in conflict with constitution it should be so held, but if there be any doubt upon the subject that should be solved in favor of the law. Marmet v. State, 45 Ohio St., 64. There is nothing to show that the operation of this act was intended to be limited to one city.
    Is the act of 1891 a special act ? Statutes held special acts and void. State ex rel v. Schwab, 49 Ohio St., 229; State ex rel. v. Smith, 48 Ohio St., 211; State ex rel. v. Mitchell, 31 Ohio St., 607; State v. Constantine, 42 Ohio St., 443; State ex rel. v. Ellet, 47 Ohio St., 90; State v. Shearer, 46 Ohio St., 275; Metcalf v. State, 49 Ohio St., 546.
    
      As further eases bearing upon special legislation and classification of cities, we cite: 44 Ohio St., 98; 44 Ohio St., 137; 29 Ohio St., 102; 39 Ohio St., 653; 18 Ohio St., 85; 41 Ohio St., 476; In re N. Y. Elevated R. Co., 70 N. Y., 327; In re Church, 92 N. Y., 1; People v. Squire, 107 N. Y., 593; Kilqore v. McGee, 85 Pa. St., 401; 55 N. Y., 50; 15 N. Y., 532.
    Does the act of 1891 confer corporate power? 35 N. E., 888.
    Statute held not to confer corporate power. The legislature, in simply detaching' territory from. a municipal corporation, does not confer corporate power.
    Constitution does not inhibit appropriate local or special legislation. The constitutional inhibition is against granting corporate power by such leg-islation. State v. Mitchell, 31 Ohio St., 606. If legislation not local and.special, immaterial if it confers corporate power. State v. George, 34 Ohio St., 670; State v. Covington, 29 Ohio St., 111. Under this last case, can it not be said that the trustees are not a corporation ? State v. Bangnam, 38 Ohio St., 459; State v. Powers, 38 Ohio St., 61.
    A power to be a corporate power must be conferred upon a corporation. It is the character of the recipient which determines the nature of the power. Are the trustees of the Salem railroad a corporation? They are not. Walker v. Cincinnati, 21 Ohio St., 14; State v. Davis, 23 Ohio St., 444.
    The right to object on the part of the city may be lost by acquiescence. 15 Am. & Eng. Ency. of Law, 1256; 7 Ohio St., 327; 14 Ohio St., 569.
    The public buildings, fire apparatus, etc., of the city, cannot be subjected to the payment of its debts. 15 Am. & Eng. Ency. of Law, 1311, and eases there cited. Taxes must be levied to meet such an. obligation. Ibid, 1312, and the many leading* cases cited in notes. Mandamus will lie to compel levy to be made. Ibid, 1313, and cases cited in note 1; 27 Ohio St., 96; 1 Ohio St., 77.
    There is no defendant in error in this case that has any interest in the subject matter. Smetters et al. v. Rainey, 14 Ohio St., 277; Smetters v. Rainey, 13 Ohio ,St., 568; Kennard v. Kennard, 35 Ohio St., 660; Hanover, Admr., v. Sperry, 35 Ohio St., 244; Renick v. Bank, 13 Ohio, 298; Townsend v. Bogert, 126 N. Y., 370; Caldwell v. Taggert, 4 Pet., 190; Loan & Trust Co. v. Holderbaum, 52 N. W., 550; Gerard v. Bates, 7 Am. St. R., 351; Buckingham v. Bank, 21 Ohio St., 131.
   Burket, J.

The cause of action stated in the petition and urged in argument is, that the act of May 4, 1891, 88 O. L., 593, “is a special act conferring corporate powers; that it is not general in its character, but is special legislation and is unconstitutional and void. ’ ’

The first section of the act is as follows:

“Section 1. Be it enacted by the General Assembly of the State of Ohio, That whenever in any city of the fourth grade of the second class, which at the federal census of 1890 had a population of not less than 5,750 and not more than 5,800, or which at any subsequent federal census may have such population, individuals and corporations owning more than one-half of the real and personal property assessed for taxation in such city, as shown by the tax duplicate of the county in which Such city is situated, .then in force, shall by their petition in writing request the council of such city to provide for the construction of a line of railway between termini designated in such .petition (one of which shall be such city) by such city and at its expense, the city council of such city may, by a resolution passed by a majority of all the members elected thereto, declare it to be essential to the interests, of such city that the line of railway so prayed for in said petition be constructed by and at the expense of such city, and it shall thereupon be lawful for a board of trustees to be appointed, as hereinafter provided, to borrow, and they are hereby authorized to borrow, as a fund for the construction of such railway, an amount not exceeding the sum-of five per cent of the value of the property, real and personal, within such city, as the same are assessed on the tax duplicate of the county in which said city is situated; and to issue bonds therefor in the name of such city and under the corporate seal thereof, bearing- interest at a rate not to exceed six per cent per annum, payable semi-annually, such bonds to be redeemable at the option of such city at any time after five years from the date thereof, and to be payable in twenty years from said date, at such place as shall be deemed best by said board; said bonds shall be signed by the president of said board, and attested by the clerk of such city, who shall keep a register of the same, and they shall be secured by a mortgage upon said railway and by the pledge of the faith of such city, and a tax which it shall be the duty of the council thereof annually to levy, which tax shall not exceed five (5) mills on the dollar in any one year, to pay the interest and provide a sinking fund for the final redemption of said bonds; provided, that such city shall not in any one year levy taxes to a greater amount than fourteen (14) mills on the dollar, including- the levy for said bonds; and provided, that no money shall be borrowed on bonds issued until after the question of providing- the line of railway specified in said resolution shall have been submitted to a vote of the qualified electors of such city, at a special election to be ordered by the city council thereof, of which not less than twenty days’ notice shall be given in the papers published in such city; and further provided, that two-thirds of said electors voting at such election shall decide in favor of said line of railway. The returns of said election shall be made to the clerk of said city, and be by him laid before the city council, who shall declare the result by resolution. The bonds issued under the authority of this section shall not be sold or disposed of for less than their par value. ’ ’

That section one of article thirteen of the constitution, which provides that “the general assembly shall pass no special act conferring corporate powers,” applies as well to municipal, as to private corporations, is established by the following cases: State v. Cincinnati, 20 Ohio St., 18; 23 Ohio St., 445; and State v. Mitchell, 31 Ohio St., 592.

The act in question clearly confers corporate power. In Walker v. Cincinnati, 21 Ohio St., 14, the court held on page 56 that the city was by that act authorized to build a railroad, but that the city acted through its trustees. The court say: “But it is clear that the trustees are a mere agency through which the city is authorized to operate for its own sole benefit. Neither as individuals, nor as a board have they any beneficial interest in the fund which they are to manage, or in the road which they are to build. They are in fact, as well as in name, but trustees, and the sole beneficiary of the trust is in the city of Cincinnati.”

The corporate power to build a railroad acting throug'h trustees, is therefore given by the statute in question. The corporate power to levy taxes to pay interest and create a sinking fund for the payment of the bonds, is given by this act. State v. Cincinnati, 20 Ohio St., 18; State v. Pugh, 43 Ohio St., 98, 115. The corporate power to call and direct an election is also given by this act. State v. Mitchell, 31 Ohio St., 592, 608; State v. Constantine, 42 Ohio St., 437-444.

The above enumerated corporate powers are granted by the act in question, and if the act is special, it is in violation of section one of article thirteen of the constitution. The defendant in error relies upon the case of Walker v. Cincinnati, 21 Ohio St., 14, but in that case the question as to whether the act then under consideration was a special act conferring corporate power, was not made by counsel, and was not considered by the court. The act was regarded as general. The Walker case is therefore not an authority upon the question. Cities are by statute divided into classes and grades, and while some of the classes are so fixed as to include at this time only one city, yet other cities may, under present statutes, come into such established classes, either by increase or decrease of population, followed by proper proceedings authorized by statute. Whatever may be said as to the validity of a statute conferring corporate power upon an established class containing only one city, it is clear that when an act is manifestly intended to, and does in fact, at the time of its passage, apply to only one of a given class, consisting of many, it is special. The city to which the act', by some slight characteristic, is made to so apply, does not thereby become a class by itself, but is thereby excepted out of the class to which it belongs; and the usual provision in such statutes, that any city having such characteristic, or any other city which may thereafter have the same, shall have the corporate power therein conferred, does not have the effect to raise such other city into any class,-but has the effect to place it into such exception.

Usually, to make an act conferring corporate power general and not special, the power should be conferred upon existing classes, but this is not always necessary, as there are cases in which the aim and object of the proposed statute cannot well be accomplished without making other and new classes; but in such cases there must be some substantial condition or characteristic requiring such classification. Bronson v. Oberlin, 41 Ohio St., 476, is a sample of such cases, and it goes to the extreme, verge of- constitutionality, and should not be extended. But when the attempted distinguishing mark or characteristic is only a small difference in population, as in the act here in question, such difference is not substantial, and shows on its face that it is not an effort at classification, but an evasion' of a classification already existing. Such laws are special, and when they confer corporate power they are unconstitutional and void. In the case of Fields v. Commissioners of Highland County, 36 Ohio St., 476, the population provided in the act was not less than 29,130, and not more than 29,135, and this court, while holding the act unconstitutional on other grounds, used the following language as to the point here in question :

“There is no doubt that the county of Highland is the only county in the state to which the provisions of this act can ever apply, and the legislature might just as well have conferred on the commissioners of that, county, in express terms, and by direct language, the power actually conferred, as to name the county through the aid of the previous federal census. If the object in employing the language used to designate the county was to give to the act a general character, and thereby to obviate any constitutional objection, while intending to limit its operation to one county, the means adopted very clearly fails to accomplish the object intended. This court has repeatedly said-that the constitutionality of an act, in respect to being local or general, is to be determined by its operation, without reference to its form. The State ex rel. v. The Judges, 21 Ohio St., 11; The State ex rel. v. Mitchell, 31 Ohio St., 592; McGill v. The State, 34 Ohio St., 228. If local in its operation, no phraseology can make it general. The act in question is not only local in its operation, but it was so intended ■ to be by the legislature; and if a law of a general nature, within the meaning of the constitution, it is clearly unconstitutional because of such restricted operation.”

To the same effect is the holding of this court, in Kenton v. State, 52 Ohio St. 59; and in State v. Bargus, 53 Ohio St., 94.

It is therefore clear that the act in question is unconstitutional and void.

The rights of the railway company as to the recovery of any taxes it may have paid, and the liability, if any, of the signers of the original petition for an election, and of others who may have so aided and assisted the scheme as to be estopped, are not before us and are not here decided.

The fact that after the dissolution of the injuncfc on, the plaintiff in error paid the taxes then due,. does not have the effect to prevent plaintiff from prosecuting its proceedings in error to test the validity of said act.

The action was commenced against John R. Martin, then county treasurer, and before the case came into the circuit court or this court, his term of office had expired, and his successor had been elected and qualified, and had been inducted into office. The question is now made, that the proceedings in error in the circuit court, and in this court should have been against the 'successor, and not against John R. Martin, who was no longer treasurer. The point is not well taken. The action in such cases is regarded as against the treasurer, whoever he may be, and it may proceed •through all its stages in all courts in the same manner in which it was commenced, or if desired, the new treasurer may, on motion, be substituted in the place of the retiring one, and this is certainly the better practice. The treasurer in office should, as one of his official duties, take charge of, and look after all actions against or in behalf of his office; but a failure to substitute the new treasurer, does not have the effect to abate the action, nor cause its dismissal on motion.

The judgments of the circuit court and court of -common pleas cvre both reversed and this cause is remanded to the court of common pleas with instruc■tions to overrule the demicrrer to the petition and for fu/rtherproceedings in the case.

Judgment accordingly.  