Leaving the statutes on one side the position was this: The agreement to furnish and lease applied in terms only to the ranges when they should be set up. The payment was to take place at the same moment. Until then the plaintiff was to remain the owner with a necessarily implied right to enter O'Brien's premises and to handle the ranges in order to complete its work and to set them up. No doubt the ranges had been appropriated to the contract, and, apart from the terms of the contract and the plaintiff's continued relation to them, would have been in O'Brien's possession. Hayes v. Tidsbury (Mass.) 63 N. E. 890; Association v. McAllister, 153 Mass. 292, 295, 26 N. E. 862, 11 L. R. A. 172. But in view of the plaintiff's title and continued control of the ranges, it appears to us to have retained the possession and right of possession more clearly than did the plaintiffs in Woodbury v. Long, 8 Pick. 543, 19 Am. Dec. 345. See Parry v. Libbey, 166 Mass. 112, 113, 44 N. E. 124; Brown v. Pierce, 97 Mass. 46, 48, 93 Am. Dec. 57. The cases where there has been a delivery upon a conditional sale, so called, do not apply for the same reasons that the statutes on that subject do not. Newhall v. Kingsbury, 131 Mass. 445; Robinson v. Bird, 158 Mass. 357, 360, 33 N. E. 391, 35 Am. St. Rep. 495. Exceptions overruled.

(66 Ohio St. 440)

CITY OF CINCINNATI v. TRUSTEES OF CINCINNATI HOSPITAL.

(Supreme Court of Ohio. June 24, 1902.) MUNICIPAL CORPORATIONS-REPAIR OF HOSPITAL-ISSUE OF BONDS-SPECIAL ACT -CONSTITUTIONAL LAW.

1. The power to issue bonds to raise funds for the repair and extension of a hospital belonging to a city, and to levy a tax upon all the taxable property within such city for their payment, is corporate power.

2. The conferring of such power by special act is inhibited by section 1 of article 13 of the constitution, which ordains that "the general assembly shall pass no special act conferring corporate powers," and to the effectiveness of the inhibition it is immaterial whether the act designates, as the donee of such power, the municipality itself or an agency through which it ordinarily acts or such extraordinary agency as a board of trustees.

3. The comprehensive terms of this section do not admit of any exception on account of any supposed or real emergency.

4. The act of April 29, 1902, entitled "An act to supplement an act entitled 'An act regulating the Commercial Hospital of Cincinnati' (now the Cincinnati Hospital), passed March 11, 1861," is void because repugnant to this section of the constitution.

(Syllabus by the Court.)

Error to circuit court, Hamilton county. Action by the city of Cincinnati against the trustees of the Cincinnati Hospital. Judgment for defendants, and plaintiffs bring error. Reversed.

The plaintiffs in error were plaintiffs in the court of common pleas, where they brought quit against the defendants in error, alleging

that the defendants, as trustees of the Cincinnati Hospital, were about to issue bonds of the city of Cincinnati, in the sum of $500,000, in the exercise of authority assumed to have been conferred upon them by the act of April 29, 1902, entitled "An act to supplement an act entitled 'An act regulating the Commercial Hospital of Cincinnati' (now the Cincinnati Hospital), passed March 11, 1861" (58 Ohio Laws, p. 151); and further alleging that the act is unconstitutional for the two reasons that it is a special act conferring corporate power and that it is a law of a general nature but not of uniform operation throughout the state, and that the issuance of the bonds and the expenditure of the money realized would be a misapplication of public funds and an abuse of the powers of the defendants as such trustees; and prayed that the defendants might be enjoined from issuing the bonds. The scope and purpose of the act sufficiently appear from the following:

"Section 1. The board of trustees, appointed under the provisions of the act to which this is supplementary, are authorized and empowered to make additions to and alterations and improvements in the hospital or branch hospitals in control of said board, to construct new hospitals or branch hospitals, to provide for the equipment thereof, and to require by purchase, appropriation proceedings, or otherwise, on behalf of the city of Cincinnati real estate within and without the limits of said city for hospital and branch hospital purposes.

"Sec. 2. Whenever it is necessary, in the opinion of said board to appropriate real estate for the purposes aforesaid, it is hereby authorized to commence and conduct, in the name of such city, proceedings therefor under and according to chapter three, division seven, title twelve of the Revised Statutes of Ohio, and the acts amendatory and supplementary thereto; and no concurrent action of any board or officer shall be nec essary, and all the power with respect to said proceedings that are vested in any other board or officer of said city shall be vested in and may be exercised by said board of hospital trustees."

The eighth subdivision of section 3 defines the procedure to be observed by the trustees in making contracts for the construction or reconstruction of any building in whole or in part. The eleventh section provides for the sale of real and personal property in the control of said trustees and not required for hospital purposes, and for the payment of the proceeds of such sales to the trustees of the sinking fund of said city, to be placed to the credit of a fund for the final redemption of the bonds whose issuance the act assumes to authorize.

"Sec. 5. To provide a fund with which to pay the cost and expense of the improvements authorized by this act, said board of trustees is hereby authorized and empower

ed to issue bonds, in the name of the city of Cincinnati and under the corporate seal thereof, in the sum not to exceed five hundred thousand ($500,000) dollars; said bonds shall be made payable in not less than ten years nor more than forty years from the date of their issue, bearing interest not to exceed three and one-half per cent. per annum, payable semi-annually, and shall be signed by the president of said board of trustees, and the mayor of the city of Cincinnati and be attested by the auditor of said city, and shall be secured by the pledge of the faith of said city and by a tax which it shall be the duty of the said board of trustees to levy or cause to be levied annually upon all the taxable property of said city, and to certify or cause to be certified to the county auditor, in an amount sufficient to pay the interest upon said bonds and to provide a sinking fund for the final redemption thereof; said tax shall be in addition to the amount now authorized by law to be levied for municipal purposes. Said bonds shall be known as 'Hospital Improvement Bonds,' and the proceeds thereof shall be paid out by the treasurer of such city upon warrants drawn by the auditor or other auditing officer of said city, upon the order of said board of trustees.

"Sec. 6. This act shall take effect and be in force from and after its passage."

The action was brought by the corporation counsel, upon the request of a taxpayer, not only to enjoin the issuance of the bonds, but also to enjoin the expenditure of any money under the provisions of the act. The defendants filed an answer denying the legal conclusions stated and implied in the petition respecting the unconstitutionality of the act, and containing the following allegations: Further answering, the defendants say that there has existed for a long time, and still exists, in said city of Cincinnati, a local and temporary emergency which justifies and requires the said act of April 29, 1902, entitled "An act to supplement an act entitled 'An act regulating the Commercial Hospital of Cincinnati (now the Cincinnati Hospital), passed March 11, 1861,'" in that the said Cincinnati Hospital and its branches located in said city of Cincinnati are wholly inadequate and insufficient to accommodate the sick in said city and to meet the purposes and objects for which said hospital was originally built; that owing to deterioration, decay, lack of repairs and otherwise, and owing to the growth of the city of Cincinnati since April 3, 1868, an issue of $500,000 of bonds as provided for in said act of April 29, 1902, is absolutely necessary to enable said hospital to meet the urgent demands existing in the city of Cincinnati at the present time; that no such emergency or necessity exists in other parts of the state which requires like legislation applicable to such other parts of the state. A demurrer to this answer having been interposed by the

plaintiff, it was overruled by the court of common pleas, and, the plaintiff not desiring to plead further, a final judgment was rendered dismissing the petition. On a petition in error the judgment of the court of common pleas was affirmed by the circuit court.

Charles J. Hunt, corporation counsel, for plaintiffs in error. William H. Jackson, for defendants in error

SHAUCK, J. (after stating the facts). Counsel seem to agree that, whether the Cincinnati Hospital was originally a state or a municipal institution, it is now, by virtue of numerous legislative enactments, an institution of the city. If its character is now municipal, as it appears to be, the act of April 29, 1902, is not within the condemnation of Wasson v. Commissioners, 49 Ohio St. 622, 32 N. E. 472, 17 L. R. A. 795, and Hubbard v. Fitzsimmons, 57 Ohio St. 436, 49 N. E. 477, which determine that an institution of the state for the accomplishment of its general purposes must be established and supported out of its general revenues, such purposes not authorizing a local imposition.

Regarding the hospital as a municipal institution, the act referred to is said to be repugnant to the first section of the thirteenth article of the constitution, which ordains that "the general assembly shall pass no special act conferring corporate powers." No artifice is employed to limit the operation of this act to Cincinnati by a description or classification from which all other municipalities of the state are excluded. Its operation is expressly limited to Cincinnati, and its special character is not disputed. We do not find in the brief of counsel for the defendants in error any attempt to give a definition of the phrase "corporate powers" which would not include some of the powers which were sought to be conferred by this act, nor any exposition of the subject which would lead to the conclusion that this act is valid if the words of this provision of the constitution are used in their ordinary sense. So far, therefore, as principles are concerned, we have the plain provisions of the fifth section of this act to authorize the issuance of bonds in the sum of $500,000, and the levying of a tax upon the property of the people of Cincinnati to pay those bonds with accruing interest; and the subject may be disposed of by the proposition, obviously sound and incontestably established by repeated decisions, that the power of taxation, when conferred upon a municipality, is corporate power. Among such decisions are State v. City of Cincinnati, 20 Ohio St. 18; State v. Pugh, 43 Ohio St. 98, 1 N. E. 439, Railway Co. v. Martin, 53 Ohio St. 386, 41 N. E. 690.

But the insistence of counsel is rather that former decisions of this court require the conclusion that the act under consideration should be permitted to operate as though it

were reconcilable with the constitutional limitation quoted. The first of the cases cited is State v. Davis, 23 Ohio St. 434. The legislation there considered provided for the regulation and management of the hospital whose improvement and enlargement are contemplated by the present act. Upon examination of the brief of counsel for the state in that case, it appears that it was not thought that the power of taxation was conferred by the act whose validity was there challenged. It provided for the management and operation of an institution which had been erected with funds raised by taxation under favor of earlier enactments. In the opinion the court expressly excluded from its consideration the validity of the act by which that taxation had been authorized. Since the court did not then decide the point which is most conspicuous in the present case, we have no occasion for comment upon those which it did decide. Counsel also cite the opinion of this court in City of Cincinnati v. Taft, 63 Ohio St. 141, 58 N. E. 63. Brief as is that opinion, it is much too long, and it far exceeds the requirements of the case in which it was written, if it encourages belief in the validity of an act of the character of this. Nothing was there decided except that there may, by special act, be conferred upon the city authority for the renewal and ultimate payment of its bonds which are valid because purchased by the holder in reliance upon the decision of this court affirming the authority to issue them. To that precise point the syllabus is limited. Much care was bestowed on the opinion for the purpose of excluding the inference that the doctrine of the case might be extended to special acts for the creation of a new indebtedness to be discharged by additional municipal taxation. Counsel for the defendants in error further insist that a conclusion favorable to the validity of this act results from the application of the doctrine of Platt v. Craig, 66 Ohio St. 75, 63 N. E. 594, and Jones v. State, Id.; it being assumed that in the view there taken a local and temporary emergency may arise in a municipality to meet which the general assembly may by special act confer corporate power. To make the doctrine thus imputed to that case available in this, the answer was filed alleging the existence of such local and temporary emergency. A sufficient answer to this contention is that such doctrine is not decided in nor encouraged by the case cited. The second proposition of the syllabus and all the observations in the opinion have express reference to section 26 of article 2 of the constitution. It was obvious, not only to the member of the court who wrote the opinion in that case, but to all of us, that the unconditional terms of the inhibition against special acts conferring corporate power would not admit of any exception. Furthermore, we were well aware that in the constitutional convention it was proposed to amend section 1 of article 13 by adding to the words, "The general assembly shall pass no

special act conferring corporate powers," the following qualification: "Except for municipal purposes and where in their judgment the objects can be better attained than under the general law." The defeat of the proposition to amend, and the submission and adoption of the unqualified inhibition, are suggestive. It adds to that suggestiveness to observe in the debates that the proposed amendment was defeated because its adoption would admit the omnipotence of the general assembly, and continue the former evils, from which an escape was much desired, and that this would necessarily result because the submission to the judgment of the general assembly of the necessity for a special act would relieve the courts of the duty of declaring any such acts void. The amendment having failed, adjudications upon this subject should not proceed as though it had been adopted. The intervention of a board of trustees with authority to issue the bonds to raise the funds required for the contemplated extension of the hospital, and to levy or cause to be levied a tax upon all the taxable property of the city for their redemption, cannot be regarded as relieving the act from the inhibition of this provision of the constitution. The inhibition is against the granting of corporate power by a special act, and the name under which the donees of the power may be designated cannot be material. The act contemplates that the trustees shall be the agents of the city, vested with authority to exercise the power of taxation with respect to all the taxable property within its limits. The trustees are without individual interest in the hospital or in the purpose to be accomplished. To regard them as vested by the act with a corporate character, distinct from that of the city whose powers they are to exercise, would relieve the act of none of the objections urged against it; since in that view the act would create a new corporation, or confer the power upon an existing corporation, and these are ends which cannot be reached by a special act. This question was determined in accordance with these views by the unanimous decision of this court in Railway Co. v. Martin, 53 Ohio St. 386, 41 N. E. 690. It is not necessary to determine the soundness of the proposition, urged by counsel for the plaintiff in error, that the act is also repugnant to the twenty-sixth section of the second article of the constitution, which ordains that "all laws of a general nature shall have a uniform operation throughout the state," but there is propriety in adverting to that section in connection with the section already considered. They were in their combined effect admirably adapted to cure the legislative evils which resulted from the enactment of many laws which challenged the interest of single representative, or representatives of a single county, but secured the votes of a majority in consideration of a return of the supposed favor. They were adopted to the end that the state should be governed by a system of laws to be passed by

a majority of the legislative votes, all of which should be prompted by approving opinions. The words of Ranney, J., in Atkinson v. Railroad Co., 15 Ohio St. 21, concisely state the evil and the remedy: "Constitutional provisions would be of little value if they could be evaded by a mere change of forms. These provisions of the constitution are too explicit to admit of the least doubt that they were intended to disable the general assembly from either creating corporations, or conferring upon them corporate powers, by special acts of legislation. It was intended to correct an existing evil, and to inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power; of making such laws applicable to all parts of the state, and thereby securing the vigilance and attention of its whole representation; and, finally, of making all judicial constructions of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class. We must give such a construction to the constitution as will preserve its great leading objects intact; and we now proceed to inquire whether this enactment can stand consistently with the full and just effect of these provisions." It was never possible that legislation so enacted should represent the combined wisdom of the senators and representatives. It is now an offense against the constitution. The struggle for legislative supremacy over constitutional limitations should have ended a century ago. Formerly, there was openly asserted a doctrine which, if sound, would give validity to legislation of this character against such constitutional limitations upon legislative power as we are considering, viz.: That constitutional limitations upon the exercise of legislative power are but admonitions to the legislative department, without efficacy to annul enactments inconsistent with them. In 1803 that doctrine was completely overthrown by an authority which no one has challenged from that day to this, and upon reasoning so conclusive that it has evoked the universal approval and admiration of generations of students of constitutional law.

"The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it, or that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The

constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be that an act of the legislature repugnant to the constitution is void. This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

"If an act of the legislature repugnant to the constitution is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the question of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law,-the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be construed, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet in practice completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in

reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction."

Those who are charged with the exercise of judicial power in a constitutional government cannot too often advert to Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. The foregoing extended quotation from the opinion of Chief Justice Marshall, in that case, is justified because of its demonstration that, with respect to the adjudication of questions of this character, that which is sometimes urged and regarded as mere compromise or concession is in fact a dereliction of duty. Since the soundness of that doctrine is universally admitted, its effect should not be evaded.

Judgments of the circuit court and of the court of common pleas reversed, and cause remanded to the court of common pleas with direction to sustain the demurrer.

STATE ex rel. KNISELY et al. v. JONES et al.

(Supreme Court of Ohio. June 26, 1902.) MANDAMUS-RELATORS-TITLE ΤΟ OFFICESPECIAL ACTS-MUNICIPAL CORPORATIONSCLASSIFICATION-CORPORATE POWERS-ORGANIZATION OF POLICE FORCE.

1. Persons claiming to be the appointed successors of defendants in office, and to be entitled to the possession of property pertaining to such office, are without authority to make the relation in an action in mandamus to compel its delivery to them unless the act under which they were appointed is valid.

2. All legislative acts relating to the same subject-matter should be construed together; and since all the acts relating to the classification of municipalities and their reclassification. and the division of classes into grades, evince the legislative intention that municipalities having substantially the same conditions and characteristics shall not enter and remain in the same class, such acts are ineffectual to designate classified recipients of corporate power, and an act to confer such power upon a single city, by such classification, is repugnant to section 1 of article 13 of the constitution, which ordains that "the general assembly shall pass no special act conferring corporate powers."

3. A legislative enactment to provide for the organization and support of a police force for a city, the expenses thereof to be paid by a tax levied upon all taxable property within such city, confers corporate powers.

4. The act of April 27, 1902, providing for the reorganization of the board of police commissioners of the city of Toledo and the appointment of such commissioners by the gov ernor, being a special act conferring corporate powers, is void.

5. Whether the provisions of the sixth section of article 13, ordaining that the general assembly shall provide for the organization of cities and incorporated villages by general laws, is an exclusive classification of municipalities into cities and villages, we do not determine.

6. Nor do we determine whether the act referred to is void because violative of the principles of local government, or because conferring upon the governor powers which he is not competent to receive and exercise, (Syllabus by the Court.)

Application by the state, on the relation of Isaac E. Knisely and others, for a writ of mandamus to Samuel M. Jones and others. Demurrer to the petition sustained.

In the petition it is alleged that on the 2d day of May, 1902, the relators were, by the Honorable George K. Nash, governor, duly appointed and commissioned as city police commissioners of the city of Toledo, and that upon the day following they qualified and organized as required by law, their appointment and qualifications being pursuant to the provisions of an act passed by the general assembly on the 27th day of April, 1902, and to take effect upon its passage. The petition further shows that the defendants were the duly constituted board of police commissioners of the city of Toledo prior to and upon the day of the passage of said act, holding office under sections 1984 and 1985 of the Revised Statutes, which were repealed by the terms of the third section of the act of April 27, 1902. The defendants are in the possession of the office, and of all the books, papers, and other property, of the police department of Toledo. After their qualification as aforesaid, the relators demanded of the defendants the delivery of said books, papers, and property, which the defendants refused, then claiming to be entitled to the custody thereof and to the exercise of all the functions of said office, notwithstanding the passage of said act. The prayer of the petition is that a writ of mandamus may issue, commanding the defendants to deliver all of said property to the relators. The cause is submitted on demurrer to the petition. Act April 27th is entitled, "An act to amend, supplement, and repeal certain sections of subdivision three, of chapter five, division five, title twelve, of the Revised Statutes of Ohio." In terms it amends section 1984 so as to provide as follows: "All police powers and duties connected with and incident to the appointment, regulation and government of a police force in cities of the third grade of the first class, shall be vested in and exercised by a board of police commissioners, to be appointed by the governor. The governor shall appoint, as such commissioners, four citizens, electors of such cities, respectively, well known for their intelligence and integrity, not more than two of whom shall be of the same political party; two of whom of different political party faith and allegiance, shall be desig nated in their appointment to serve for two years, and the other two, also of different