
    Thomas et al. v. State of Ohio, ex rel. Gilbert, a Taxpayer. Gileillan et al. v. State of Ohio, ex rel. Seymour, Prosecuting Attorney.
    
      The court having affirmed validity of act — And subsequently decided act void — Authorizing certain public contracts — The contracting party is entitled to compensation for performance— Rendered before action challenging validity of law — Lazo of contract — Tax inquisitor contract.
    
    This court having affirmed the constitutional validity of a legislative act passed to authorize contracts for services to be rendered to the public, and such a contract having been entered into and services performed toward its execution, the party performing them is, notwithstanding our subsequent decision that the act is constitutionally void, entitled to receive the stipulated com' pensation for such services as he has performed before the filing of the petition in an action which challenges the validity of such contract, this court not having in the meantime qualified or overruled the decision upon which the party relied.
    (No. 9913
    Decided May 7, 1907.)
    Error to the Circuit Court of Montgomery County.
    ( No. 10158
    Decided May 7, 1907.)
    Error to the Circuit Court of Franklin County.
    The cases are stated in the opinion.
    
      Messrs. Doyle & Lewis; Messrs. Bosler & Emanuel; Messrs. Young & Young and Mr. I. H. Goeke, for James R. Thomas et al.
    
      Messrs. McMahon & McMahon; Messrs. Rowe & Shuey and Mr. O. M. Gottschall, for Phillip Gilbert.
    
      
      Mr. J. T. Holmes and Messrs. Dyer, Williams & Stouifer, for Bailey W. Gilfillan et al.
    
      Mr. F. C. Rector; Messrs. Huggins, Huggins & Johnson; Mr. A. T. Seymour and Mr. M. E. Thrailkill, for defendant in error.
    Brief of Mr. Doyle.
    
    The question now.before the court in this case and the Gilfillan case, does not involve the validity of the law, but the validity of the contracts made under it, and the interpretation of the law as applied to these contracts.
    The statement of law, made in State, ex rel., v. Cappeller, 39 Ohio St., 207, to the effect that “The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state, or any of its subordinate agencies with respect to part transactions.' It is designed to prevent retrospective legislation, injuriously affecting individuals, and thus protect vested rights from invasion,” was copied from the opinion of the Supreme Court of the United States in New Orleans v. Clark, 95 U. S., 654. Reiterated by this coprt in Burgett et al. v. Norris, Treas., 25 Ohio St., 308; Kumler v. Silsbee, 38 Ohio St., 445. And when this court, as it is now constituted, affirmed the judgment in State, ex rel., v. Gibson, Treas., et al., 71 Ohio St., 509, without report, it did so upon the doctrine thus announced.
    It is sufficient to say that in 1883, this court decided that the first inquisitor act, passed in ■ 1880, and which applied to Hamilton county alone, was on a subject-matter local and temporary in its nature, and not in conflict with Section 26, Article II of the Constitution, and so far as it was retrospective in its operation, not in conflict with Section 28 of Article II of the Constitution.
    The act which was thus held to be valid in 39 Ohio State was followed by the act of 1885. Section 1343a, et seq., is in almost the identical language, except that it was made applicable in all counties containing a city of the first class, or a city of the first grade of the second class, thus confining it to four counties in the state instead of one. And that was followed by the act of 1888, which we humbly admit applied to all the counties of the state except the four included in the act of 1885. State, ex rel., v. Crites, Auditor, 48 Ohio St., 142.
    We have the right to assume therefore that this legislation was declared valid by the highest court in the state and that the rights of the parties are protected by the act of May 9, 1902, and now given in Bates’ Annotated Statutes at Section 22&-I. If the subject of these statutes was one upon which the general assembly could not legislate. If the power granted was one that by any act the legislature could not grant, then we grant you that it could not make valid anything done under it's attempted grant. In other words, we are not unmindful of the decision of this court in Bartlett et al. v. State, 73 Ohio St., 54.
    The legislature says that if an act was declared to be legal and valid by the courts, and rights have accrued under it, such rights will be enforced notwithstanding the change in the decisions of the court, as against the state or one of its political sub-divisions.
    It is a declaration by the.state that it will not take advantage of a change in judicial decree, as against parties contracting with it, on the' faith of legislative -enactment having the endorsement of previous judicial decree.
    But we are not bound even to rely on the act of May 9, 1902. It seems to me that the law requires the same result independently of that act.. This court has many times declared the law substantially as it is declared in that act. Shoemaker et al. v. City of Cincinnati et al., 68 Ohio St., 603.
    We call attention to the opinion where the law classifying cities was repeatedly approved by this court, and quoting from . Judge . Spear: “remained the law of the state until the decisions involving the government of the cities of Toledo and Cleveland in State, ex rel., v. Jones et al., 66 Ohio St., 435, and State, ex rel., v. Beason et al., 66 Ohio St., 491.” You held the same thing in City of Cincinnati v. Taft et al., 63 Ohio St., 141. You decided it in Lewis, Auditor, v. Symmes et al., 61 Ohio. St., 471.
    It was affirmed by this court in City of Findlay v. Pendleton et al., 62 Ohio St., 89. It has been decided many times in the circuit court. Friedman v. City of Cincinnati et al., 13 Ohio Dec., 404; Bank et al. v. Trustees, 13 Ohio Dec., 472; City of Columbus v. Bohl et al., 13 Ohio Dec., 569. We need not consume time giving decisions of the Supreme Court of the United States. Douglass v. Pike County, 101 U. S., 677; City of Chicago v. Sheldon, 9 Wall., 50; Taylor v. City of Ypsilanti, 105 U. S., 72; Louisiana v. Pilsbury, 105 U. S., 295; City of Los Angeles v. Water Co., 177 U. S., 558; Wade v. Travis County, 174 U. S., 509; Anderson v. City of Santa Anna, 116 U. 5., 361; Havemeyer v. Iowa County 3 Wall., 294.
    
      Brief of Messrs. McMahon & McMahon.
    
    An unconstitutional act is a nullity. It confers no protection. It creates no rights or obligations. In legal contemplation it is as if it had never been passed. Norton v. Shelby County, 118 U. S., 426; City of Cleveland v. Construction Co., 67 Ohio St., 198.
    Furthermore, the citizen is charged with knowledge of the fact. He takes all the risks of action under the law. He can .not plead ignorance, nor ask protection by reason of the advice of counsel. This may be a hardship. But the exigency of government requires it. City of Findlay v. Pendleton, 62 Ohio St., 80; Miller et al. v. Flixon, Treas., 64 Ohio St., 40.
    It must be remembered that the classification in the two laws providing for inquisitors was by counties and not by .cities. It is true the counties in the older law are described as containing cities of a certain grade -and class: — but the legislation is for the counties and not the cities in the counties.
    The very same judges who decided the Grites case, 48 Ohio St., 142, held, one year later in the case of Costello v. Wyoming, 49 Ohio St., 202, that a law providing that in villages in any county containing a city of the first grade of the first class, the village council may construct.sidewalks, etc., was decided unconstitutional as not being of uniform operation throughout the state, and was not saved by the attempted classification by cities. Commissioners v. Rosche Bros., 50 Ohio St., 103; State, ex rel., v. Bargus et al., 53 Ohio St., 94; State, ex rel., v. Davis et al., 55 Ohio St., 15; 
      Hixson v. Burson et al., 54 Ohio St., 470; Mott et al. v. Hubbard, Treas., et al., 59 Ohio St., 199; Silberman et al. v. Hay, 59 Ohio St., 582; State, ex rel., v. Brown et al., 60 Ohio St., 462.
    These decisions, all- concerning laws operating in counties or in cities in certain counties, are all against the contention of plaintiffs in error, that the trend of decision justified the making of the contracts' relied upon in this case.
    The consideration of the decisions where the doctrine of the classification of cities was invoked to save the law in question from the objection of want of uniformity would include the following: City of Cincinnati v. Steinkamp, Trustee, 54 Ohio St., 284; State, ex rel., v. Ketter et al., 65 Ohio St., 558; Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25; State, ex rel., v. Buckley et al., 60 Ohio St., 273; State, ex rel., v. Cowles et al., 64 Ohio St., 162; Fenner v. City of Cincinnati, 65 Ohio St., 567; Platt v. Craig et al., 66 Ohio St., 75; State, ex rel., v. Jones et al., 66 Ohio St., 453; State, ex rel., v. Beacom et al., 66 Ohio St., 491; State, ex rel., v. Yates, Treas., 66 Ohio St., 547; State, ex rel., v. Garver et al., 66 Ohio St., 555; State, ex rel., v. Spellmire et al., 67 Ohio St., 77; Pump v. Commissioners et al., 69 Ohio St., 448; Schumacher v. McCallip et al., 69 Ohio St., 500; State, ex rel., v. Lezvis, Auditor, 69 Ohio St., 202.
    Brief of Mr. Holmes and Messrs. Dyer, Williams & Stouifer.
    
    Gilfillan’s rights are protected by the act of May 9, 1902, 95 O. L., 444;'Bates’ Annotated Ohio Statutes, 5th Ed., Sec. 22&-1.
    
      It may be objected to by the act of 1902 that it is retroactive in its terms, and is therefore unconstitutional, as being in contravention of the provisions of Section 28, Article II of the Constitution of Ohio.
    While it is true that the act of May 9, 1902, is intended to have a retrospective effect, and is intended to operate upon past transactions by making valid and binding engagements which without its operation might not be operative or of controlling effect, or at least might be involved in doubt, yet this fact of itself does not make the law a retroactive law. The definition of Mr. Justice Story of a retroactive law is given in the case of The Society v. Wheeler, 2 Gallison’s R., 139, quoted with approval by this court in Rairden et al. v. Holden, Admr., 15 Ohio St., 207. This definition, upon first consideration, might seem .broad enough to include the statute we are now considering, but it must be limited and controlled by the operation of another principle, which is declared by Mr. Justice Field, in New Orleans v. Clark, 95 U. S., 644.
    This language, it seems to us, demonstrates clearly that it is entirely proper for the legislature by appropriate enactments to provide for the payment by the state, or any of its subordinate agencies, of claims, for the payment of which it may be morally or equitably bound, but concerning which there may be no legal liability. This language of Mr. Justice Field has been quoted with approval by this court in a number of cases. Kumler v. Silsbee, 38 Ohio St., 445; State, ex rel., Cappeller, 39 Ohio St., 207; Burgett et al. v. Norris, Treas., 25 Ohio St., 308; State, ex rel., v. 
      Peters, 43 Ohio St., 629; Read v. City of Plattsmouth, 107 U. S., 568; Insurance Co. v. Commissioners, 106 Fed. Rep., 123; Hubbard, Treas., v. Fitzsimmons, 57 Ohio St., 436; State, ex rel., v. Commissioners, 17 Ohio St., 608; State, ex rel., v. Trustees, 20 Ohio St., 362; Board of Education, v. McLandsborough, 36 Ohio St., 227; State v. Board of Education, 38 Ohio St., 3; Commissioners v. Rosche Bros., 50 Ohio St., 113.
    The case of State, ex rel., v. Gibson, Treas, et al., 71 Ohio St., 509, affirming the decision of the circuit court *of Hamilton county, without report, is interesting. The decision of the circuit court is found at 4 C. C., N. S., 433, and the decision of the common pleas court is found at 2 N. P., N. S., 221.
    In the Gilfillan case, the equities are not even in doubt: When this contract was made, this court had held in the case of the State, ex rel., v. Cappeller, 39 Ohio St., 207, 215, that the subject of the employment of a person to assist the county auditor in bringing taxes upon the tax duplicate and to provide for the payment of a compensation for such services was subject-matter of a local and temporary nature; and a special act with reference thereto was valid, as established by prior decisions of this court. That decision' has stood unquestioned and unchallenged, and Gilfillan had a right to rely upon it.
    In the case of State, ex rel., v. Crites, Auditor, 48 Ohio St., 142, the act of April 10, 1888, providing for the securing of a fuller and better return of property, and authorizing the employment of a person to assist the county auditor was held to be a constitutional enactment, and a contract made pursuant to its provisions was held to be legal, and binding.
    There was nothing in the decision of State, ex rel., v. Buckley et al., 60 Ohio St., 273, that was notice to Gilfillan that the tax inquisitor statute was unconstitutional.
    This court, in the case of Bartlett et al. v. State, 73 Ohio St., 54, again had occasion fo consider the power of the general assembly to legislate with respect to matters affected by acts which had been declared to be unconstitutional. The particular legislation there under consideration was held to be unconstitutional, but the court in delivering its opinion, recognized the existence of powers in the general assembly, srfch as were exercised in the enactment of Section 22&-1.
    In the Bartlett case, the general assembly •undertook, by so-called general legislation, to declare that special legislation which had been enacted in violation of the constitution, should nevertheless “continue to be and remain, and be recognized and regarded as legal.”
    It was clearly ultra vires for the General Assembly to sit in judgment on the constitutionality of one of its own acts. The case does not touch the question at bar. The act now under consideration, does not undertake to say that the tax inquisitor acts shall continue as valid and binding legislation, but simply'declares in general terms that all vested rights that have been acquired by reason of acts done under laws which were held to be constitutional at the time the contracts or obligations were made, shall be protected, notwithstanding a change in judicial interpretation. Black on Constitutional Prohibitions, Section 216, page 273.
    
      The legislature may, by a curative act, validate contracts made ultra vires by municipal corporations. Lewis’ Sutherland, Statutory Construction, Sec. 675, pp. 1229, 1236; Steele County v. Erskine et al., 98 Fed. Rep., 215, affirming 87 Fed. Rep., 630, is also pertinent. Windsor v. City of Des Moines, 110 Ia., 175. The case of Schneck v. Citof Jeffersonville, 152 Ind., 204, is an instructive case. Marion County v. Railroad Co., 91 Ky., 388; Railroad Co. v. Bullitt County, 92 Ky., 280; Devers v. York City, 150 Pa. St., 208; Melick v. City of Williamsport, 162 Pa. St., 408; City of Chester v. Pennell, 169 Pa. St., 300:
    Mr. Gilfillan is entitled to receive from the county what he has earned under the contracts set forth in the petition below, regardless of the provisions of Section 22&-1.
    A change of judicial interpretation will not be permitted to operate retrospectively, and Gilfillan’s rights will be protected according to the law, as construed by the courts at the time his contracts were made. Lewis, Auditor v. Symmes et al., 61 Ohio St., 471; Douglass v. County of Pike, 101 U. S., 677; City of Findlay v. Pendleton et al., 62 Ohio St., 80; Bartlett et al. v. State, 73 Ohio St., 59.
    The Supreme Court of the United States has repeatedly declared it as a well settled principle of law, commencing with the case of Gelpcke v. City of Dubuque, 1 Wall., 175; Havemeyer v. Iowa County, 3 Wall., 294; Olcott v. Supervisors, 16 Wall., 478; Louisiana v. Pilsbury, 105 U. S., 278; Anderson v. City of Santa Anna, 116 U. S., 356; Wade v. Travis County, 174 U. S., 499; City of Los Angeles v. Water Co., 177 U. S., 558.
    
      Counsel for defendant in error raise no question as to the constitutionality of the Act of May 9, 1902 (95 O. L., 444; Sec. 220-1, Batea’ Annotated Statutes). Indeed, they state that it is but declaratory qí the existing law with respect to vested rights. They claim, however, that the act has no application to the contracts made with Gilfillan, and especially with respect to the contract executed December 24, 1902.
    The statute expressly relates to, and operates upon all public contracts, bonds, obligations, etc., as' well those made after, as those entered into before its passage; and its applicability is controlled not by the date of its passage, but by the date of any subsequent change of “judicial construction and adjudication.”
    The provisions of the enactment, therefore, are just as operative with respect to the contract of December 24, 1902, as to the two preceding contracts, for the change of judicial construction of which we complain did not take place until June 26, 1906, the date of the decision by this court, of State, ex rel., v. Lewis, Auditor, 74 Ohio St., 403.
    Furthermore, if this act is simply declaratory of the law as it stood at the time of its passage, then the date-of its enactment is of no determining force whatever, with- respect to its operation.
    The pertinent question therefore is, were the Gilfillan contracts valid according to any rule of judicial decision and construction at the time they were made? We say. that State, ex rel., v. Crites, Auditor, 48 Ohio St., 143; and State, ex rel., v. Cappeller, 39 Ohio St., 207, were both cases of judicial decision, wherein a rule was announced according to which the contracts herein were valid.
    It is apparent that all of the contracts made by Gilfillan come clearly within the letter as well as the spirit of the Act of May'- 9, 1902, and that his rights thereunder should be protected.
    Brief of Mr. Rector; Mr. Seymour; Mr. Thrailkill and Messrs. HugginsHuggins & Johnson.
    
    Plaintiff in error contends that his rights, under the contracts, are protected and preserved to him by force of the Act of May 9, 1902, 95 Ohio Laws, 444, Sec. 22&-1, Bates’ Statutes. This act is only declaratory of the existing laws. Insurance & Trust Co. v. Debolt, Treas., 16 How., 416; Wade v. Travis County, 174 U. S., 499; City of Cincinnati v. Taft et al., 63 Ohio St., 141; Shoemaker et al. v. City of Cincinnati et al., 68 Ohio St., 603.
    This act, therefore, could not in any event affect the contract entered into on the twenty-fourth day of December,' 1902, and after which date a large amount of property was put on the duplicate by the auditor.
    . This act can only apply, if at all, to the contracts of January 22, 1897, and June 26, 1900, as these were the only contracts, in existence at the time such act was passed. We submit, however, that this act has no applicatio'n whatever to any of the contracts in question in this case.
    By the terms of the act, the contracts in controversy must be valid according to a rule of judicial construction and adjudication, prevailing at the date of such proceedings or action, and the alleged invalidity must be claimed by specific change in such rule of ' construction as to such similar legislation.
    What was the rule of construction prevailing on January 22, 1897, and on June 26, 1900, as to what are 'properly general laws requiring uniform operation throughout the state? There was no judicial adjudication of the law under which the contracts with plaintiff in error, Gilfillan, were made, in so far as related • to the objection on account of its want of uniformity.
    Plaintiffs in error cite the case of State, ex rel. v. Crites, Auditor, 48 Ohio St., 143, as being such an' adjudication.
    The objection that the act of 1888 did not have a uniform operation was not made in that case, and was not therefore adjudicated. This case can not therefore be regarded as authority' upon the question of the uniform operation of' the laws under which the contracts with Gilfillan were made.
    On this point, see the case of State, ex rel. v. Lewis, Auditor, 74 Ohio St., 403.
    Was there then prevailing, at the date of the contracts with Gilfillan, a rule- of judicial construction as to such similar legislation under which his contracts or any of them were valid?
    The judicial construction of the law as to the classification of, cities has been changed by subsequent decisions,
    However,, the law as to the classification of cities waS not such similar legislation as to bring plaintiff’s contract within the provision of the act. of May 9, 1902. Shoemacker et al. v. City of Cincinnati et al., 68 Ohio St., 603; State ex rel. 
      v. Cowles et al., 64 Ohio St., 162; see the unreported case of Zelsman et al. v. City of Columbus et al., 73 Ohio St., 355.
    The court in the case of State ex rel. v. Cowles et al., held the act of April 6, 1900 (19 O. L., 517), and the act of April 16, 1900, supplementary thereto (94 Ohio Laws, 670), repugnant to Section 26, Article II, of the constitution.
    Our understanding of the decisions of the court is that this case did not determine the constitutionality of the law as to the general classification of cities. See Shoemaker et al. v. City of Cincinnati et al., 68 Ohio St., 611.
    The converse would therefore be, that the act creating the park commissioners in cities of the second grade of the first class was not a similar law to that of the classification of cities.
    It would therefore be difficult to see how the acts authorizing contracts with tax inquisitors could be similar to the law classifying cities.
    However, the judicial construction and decisions of the court as to what laws must have uniform operation throughout the state . have changed quite decidedly within the last fifteen years. The decisions on a similar case or cases have been directly opposite.
    In the following cases the court construed certain legislation as not being in contravention to Section 26, Art. II, of the constitution. Welker v. Potter et al., 18 Ohio St., 85; State, ex rel., v. Judges, 21 Ohio St., 1; McGill v. State, 34 Ohio St., 228; State, ex rel., v. Cappeller, 39 Ohio St., 207; State, ex rel., v. Shearer, 46 Ohio St., 275; Marmet v. State, 45 Ohio St., 63; Hart v. Murray, 
      48 Ohio St., 605; Pearson, Auditor, et al. v. Stephens, 56 Ohio St., 126.
    In the following cases the court held directly the opposite to the foregoing cases: State v. Powers, 38 Ohio St., 54; Ex parte Falk, 42 Ohio St., 638; State, ex rel., v. Ellet et al., 47 Ohio St., 90; Commissioners v. Rosche Bros., 50 Ohio St., 103; State, ex rel., v. Bargus et al., 53 Ohio St., 94; State, ex rel., v. Ferris, 53 Ohio St., 314; State, ex rel., v. Davis et al., 55 Ohio St., 15; Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25; Mott et al. v. Hubbard, Treas., et al., 59 Ohio St., 199; Silberman et al. v. Hay, 59 Ohio St., 582; State, ex rel., v. Buckley et al., 60 Ohio St., 275; State, ex rel., v. Brown et al., 60 Ohio St., 462; Platt v. Craig et al., 66 Ohio St., 75; State, ex rel., v. Yates, Auditor, 66 Ohio St., 546.
    It will be observed that the decisions in the first class of cases were all decided as long ago as 1891, except the case of Pearson, Auditor, et al., v. Stephens, 56 Ohio St., 126, which was decided in 1897.
    The court, as will be seen by the second class of cases, has completely changed its position as to what subjects require uniform legislation. And it will be noticed that this class of cases, excepting the case of Pearson v. Stephens, supra, have been uniformly against the construction claimed by the plaintiffs in error, and against the constitutionality of special legislation. It therefore follows from these decisions that similar laws to the one under which the contracts in question were authorized,' were declared unconstittuional prior to the entering into of the contracts by Gilfillan.
    
      Plaintiff in error was bound to know the law and to correctly interpret it. Railway Co. v. Kentucky, 161 U. S., 691.
    Plaintiff in error, Gilfillan, contends that he had. acquired vested rights in the subject of the contracts from the fact that relying on the decisions of the court in force at the time his said contracts were made to the effect that the law authorizing the making of contracts with tax inquisitors or such similar laws were constitutional, he made the contracts and fulfilled the same.
    This is the same principle that is attempted to be declared by Section 22&-1, -Revised Statutes, and, unless the contracts with Gilfillan were entered into in reliance upon former adjudications respecting the act whereby such construction was authorized, they are void, ab initio, and never had any effect. Norton v. Shelby County, 118 U. S., 425; Railway Co. v. Kentucky, 161 U. S., 691; Lewis, Auditor, v. Symmes et al., 61 Ohio St., 471; City of Findlay v. Pendleton, 62 Ohio St., 80.
   Shauck, C. J.

On the first day of June, 1905, Phillip E. Gilbert, a taxpayer of Montgomery county, filed a petition in the court óf • common .pleas of that county alleging the facts necessary to entitle him to bring the suit in the capacity of a taxpayer, and praying that the execution of a contract which had been entered into between the appropriate county officials and James R. Thomas, whereby the latter, for a stipulated compensation to be paid by the county, should 'perform the duties of a tax inquisitor in bringing taxable property of the county upon the duplicate for taxation, should be perpetually enjoined, it being alleged that the payment of the stipulated compensation by the county was unlawful because the contract was not authorized by the terms of any constitutional statute. - An answer having been filed, the cause was tried on the pleadings and the evidence, and on July 7, 1905, a judgment was entered in the court of common pleas dismissing the petition. The cause was then appealed to' the circuit court where it was tried de novo upon the pleadings and the evidence. That court being of the opinion that the legislation by which the contract was supposed to be authorized was unconstitutional because repugnant to ' Section 26 of Article II of the Constitution of the state which ordains that all laws of- a general nature shall have uniform operation throughout the state, rendered judgment for the plaintiff, perpetually enjoining Thomas from performing any work and from receiving any compensation under the contract. Thomas thereupon filed a petition in error here for the reversal of the judgment of the circuit court. At the last term the case was fully argued and considered upon the question of the constitutional validity of the legislation intended to authorize contracts of this character. We reached the conclusion that it is invalid because repugnant to Section 26 of Article II of the Constitution. The case is reported in 74 Ohio St., 403, where the constitutional and statutory provisions involved are fully set out. Upon the announcement of our conclusion counsel for Thomas communicated to us their desire to be heard upon the proposition that in view of previous decisions of this court respecting the validity of such legislation the present conclusion that it is invalid does not justify the denial of compensation from the date of the contract. To afford opportunity for hearing upon that question our mandate was withheld and the causes set for argument with Gilfilan v. The State, ex rel. Seymour, Prosecuting Attorney.

The latter cáse originated in a suit by the prosecuting attorney in the court of common pleas of Franklin county to enjoin the payment to Gilfillan of compensation for'services to be performed by him as tax inquisitor for Franklin county under contracts executed between him and the appropriate officers of the county, it being alleged, among other things, that said contracts were invalid because the legislation by which they were supposed to be authorized was repugnant to Section 26 of Article II of the constitution. After a final judgment in the court of common pleas the cause was appealed to the circuit court, where it was tried de novo upon the pleadings and the evidence. In that court it was determined that the legislation was invalid for the reason stated; but in recognition of Gilfillan’s right to rely upon former decisions of this court that this legislation is valid it was held that he was entitled to compensation for services rendered under the contract until this court decided similar legislation invalid, and that date it fixed at May 11, 1899, when this court announced its conclusion in State, ex rel. Wilmot et al. v. Buckley et al., 60 Ohio St., 273, where we held that laws relating to the subject of popular elections are of a general nature, and must be of uniform operation throughout the state. The separate statements of conclusions of fact and of law made by the circuit court embrace other questions which need not be stated here, as they relate to the interpretation of the contract and its application to facts shown in the evidence.

In both cases the present inquiry assumes that the legislation referred to is void for repugnancy to Section 26 of Article II of the constitution' as decided in Thomas et al. v. State, ex rel. Gilbert, 74 Ohio St., 403. We have to ascertain to what extent, in view of the previous decisions of this court, the plaintiffs in error are entitled to rely upon their contracts, notwithstanding the invalidity of the legislation. In one of the briefs there is much reliance upon the act of May 9, 1902 (95 O. L., 444, Bates’ Statutes, Section 22&-1), entitled “An act to carry into effect the intention both of officials and parties respecting certain county and municipal instruments and proceedings.” In view of the abiding character-of the restraints imposed by the constitution upon legislative action, one does not readily accept the cohclusion that legislative acts which they have made void may receive validity from subsequent legislative acts. The inquiry will be most effectively promoted .by adverting at once to the constitutional principles which are involved, for to them it must at last come. The doctrine invoked by the plaintiffs in error is founded on the provisions- of the tenth section of the first article of the Constitution of the United States that no state shall pass any law impairing the obligation of contracts, and that of Section 28 of Article IT of the constitution of this state that “the general assembl)1- shall have no power to pass laws impairing the obligation -of contracts.” The courts have not failed to observe the significance of these provisions of the organic laws for the preservation of the inviolability of contract's. To give to them the effect intended the courts have accorded full recognition to the doctrine that when contractual obligations are involved, and to the extent which may be necessary to their enforcement, the interpretation which is placed upon a constitutional provision by the highest tribunal appointed for that purpose is to be regarded as a part of the provision. In numerous authoritative and well-considered cases this doctrine has been stated in varying terms but to the same import. It was stated with care and precision by Chief Justice Waite in Douglass v. County of Pike, 101 U. S., 677, as follows:

“The true rule is to give a change of judicial construction in respect to a statute, the same effect in its operation on contracts and existing contract rights that would be given to a legislative enactment; that is to say, make it prospective but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in its effect on contracts, as an amendment of Jhe law by means of a legislative enactment.”

The reporter’s abstract of the briefs will show that this doctrine has been- recognized in numerous cases, applying it to decisions respecting the validity of statutes as well as to their construction. It was distinctly recognized by this court in Lewis, Auditor, v. Symmes et al., 61 Ohio St., 471, though its application was there denied because the case involved no contractual obligation. In City of Cincinnati v. Taft et al., 63 Ohio St., 141, the doctrine was recognized and applied in support of the binding obligation of contracts executed under favor of legislation which this court had previously held to be constitutionally valid, although in the case cited it was admitted to be void under our later decisions. Two distinctions should receive attention. This doctrine may be invoked as a matter of right by all suitors who are in a position to assert the binding obligation of contracts. It is, therefore, broadly distinguishable from the doctrine which courts and writers usually and properly treat' under the head of stare decisis, which involve only considerations of public policy and propriety, however important they may be. The provision of the federal constitution is that no state shall pass any law 'impairing the obligation of contracts., while the express restriction of the constitution of the' state is upon the general assembly.,. The duty of the courts of the state would be obvious from a consideration of the purposes in view. It becomes clearer when attention is given to the provision of the federal constitution, for that would not be more clearly violated by an act of the legislature impairing the obligation of a contract than by judicial decision impairing the oblh gation of contracts authorized by laws of which the decision of the court of last resort affirming their validity had become a part.

Upon principle this doctrine may be regarded! as entirely consistent with the commonly accepted doctrine that an unconstitutional act of the legislature is not a law, but a nullity. It is in accordanee with the general rule that all who assume the validity of legislation do so at their peril. As to them, contracts purporting to be authorized by void legislation have no obligation to be impaired by judicial decisions which apply to them the tests prescribed by the constitution. But that contracts executed under, favor of acts which the highest court ■ of the state has declared valid are themselves valid as against subsequent decisions to the contrary, though the acts may not be valid, seems clear for the reasons already stated, and the distinction is clearly implied by the terms in which the courts have stated the doctrine which the plaintiffs in error invoke. The terms of the doctrine require a consideration of the decisions of this court respecting legislation of this character prior to the commencement of these suits. In State, ex rel., v. Cappeller, 39 Ohio St., 207, the court had to determine the proper interpretation of statutes relating to the assessment and collection of taxes and the payment for services rendered in that behalf, and the constitutional validity of the Act of April 14, 1880, entitled “An act to more fully secure the taxation of real and personal property in Ohio and for levying taxes thereon according to its true value” (77 O. L., 205). The act assumed to authorize such contracts as these and to provide for the ratable deduction of money paid for services rendered in that behalf from the several funds in the treasury of the county. Although the title of the act comprehended the entire state, the first section by artifice limited its operation to Hamilton county. The opinion shows that the court did not regard the act as having a uniform operation throughout the state, but it appears to have been regarded as not a law of a general nature because it did not operate throughout the state. Analysis of the opinion in that case is not necessary for the third section of the syllabus prepared by the court as the authoritative statement of the points decided is: “Section i of the act of April 14, 1880 (77 O. L.; 205), is not in conflict with either Section 26 or 28,, Article II of the Constitution.” The legislative act upon which the plaintiffs in error relied when rendering a part of the service under the present contracts was before this court at the January ^ Term, 1891, in State, ex rel., v. Crites, Auditor, 48 Ohio St., 142, when it gave the utmost assurance possible to those who contemplated entering into such contracts, it being stated, in the syllabus that “the act of April 10, 1888 (85 O. L., 170), entitled ‘An act to secure a fuller and better return of property for taxation and to prevent omissions of property from the tax duplicate’ is constitutional, and a contract made pursuant to its provisions is legal and valid.” The former decisions of this court, therefore, clearly justify the resort by counsel for the plaintiffs in error to the doctrines stated in support of their conclusion that these contracts are not entirely destitute of validity in view of the circumstances under which tíiey were executed, although the legislation may be wholly invalid.

To this extent the judgment of the circuit court in Giliillan v. State, ex rel. Seymour, is in accordance with the views we have expressed. But in that court it was thought that this court had withdrawn its authority for reliance upon the validity of the legislation involved on May 9, 1899, when it decided State, ex rel. Wilmot et al., v. Buckley et al., 60 Ohio St., 273. It is true that in that case, and in other cases arising at about the same time, the consideration of this court was given to the constitutional provision here involved, namely, that laws of a general nature must nave uniform operation throughout the state, but neither the case specially referred to nor any other involved in the general consideration dealt with the present subject of legislation, and 'they could not have determined that it is general and therefore within the constitutional requirement. Those cases do not make plainer than it had been ever since the adoption of the constitution that laws which are of that nature must have that operation, though some of them held laws to be of that nature which had not been so regarded in previous decisions. The changes in decisions in all the cases referred to in fhe present inquiry resulted from the present acceptance of the view that a general subject of legislation'does not change its character because a legislative act respecting it may, by the general assembly, be given only a local operation. The court of last resort in the state having in the most authoritative manner affirmed the validity of this legislation, the assurance so given could be withdrawn only by a contrary decision with respect to the same legislation or like legislation upon the same subject. The doctrine recognized as necessary to preserve the obligation of contracts does not permit the denial of compensation to the plaintiffs in error until their right thereto was challenged by the original petitions filed in the court of common pleas in the cases, which resulted in the judgments here reviewed. Other questions discussed by counsel in the case of Gilfillan v. State, ex rel. Seymour, are, we think, foreclosed by the record, and the judgments will be modified only in the respect indicated.

The judgments of the circuit court will be vacated and the causes remanded to that court with instructions to enter such modified judgment as will permit payment to the plaintiffs in error of the stipulated compensation for the services which they rendered before the filing of the original petitions in these causes.

Judgment accordingly.

Price, Crew, Summers, Spear and Davis, JJ., concur.  