Rees v. Olmsted

• Decision Date: 07 February 1905
• Citation: 135 F. 296
• Parties: REES et al. v. OLMSTED.
• Court: U.S. Court of Appeals — Sixth Circuit

135 F. 296

REES et al. v. OLMSTED.

United States Court of Appeals, Sixth Circuit.

February 7, 1905

Saltzgaber Hoke & Osborn, Brown & Geddes, and Chas. A. Schmettau, for plaintiffs in error.

William B. Sanders (Squire, Sanders, & Dempsey, of counsel), for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This action involves the validity of $30,000 of bonds, $10,000 issued on August 14, 1894, and $20,000 on February 15, 1895 the proceeds of which were used for the improvement of the public roads within a precinct of Van Wert county, Ohio known as 'Venedocia Pike No. 1.' This suit was brought against the plaintiffs in error, 'Commissioners of Venedocia Pike No. 1,' by George G. Olmsted, a bona fide purchaser for value of coupons aggregating $2,010. The bonds and coupons were issued under authority of the act of March 21, 1894 (91 Ohio Laws, p. 543), providing for the improvement of public roads in Van Wert county, describing it by population. A demurrer to the petition was overruled on the authority of the Board of Commissioners v. Gardiner's Savings Institution, 119 F. 36, 55 C.C.A. 614, decided by this court December 2, 1902, and an answer filed. The defense relied on were the unconstitutionality of the act, and the irregularity of the action of the county commissioners under it. On the trial, testimony tending to establish the various defenses was excluded, and a verdict for the plaintiff directed, on the grounds, first, that the act was constitutional, and second, that the recitals in the bonds estopped the defendants from setting up any lack of regularity in their issue.

1. It is urged the act violates section 26 of article 2 of the Constitution of Ohio, which provides that 'all laws of a general nature shall have a uniform operation throughout the state. ' The act provides that upon the petition of a majority of the landowners in any election precinct of a county, residing in the county, the county commissioners, if they deem it advisable, may improve the public roads within such precinct, and for that purpose may levy an extra tax on the property within the precinct; the work of improvement to be done, and the bonds in anticipation of the collection of the tax to be issued, by three road commissioners to be appointed by the county commissioners. The act in terms applies to 'any county of this state which, at the last federal census had, or which at any subsequent federal census shall have, a population of not less than 29,050, and not more than 29,800. ' It may be conceded that the Wert was the only county answering to this description. Field v. Com'rs Highland Co., 36 Ohio St. 476; Ry. Co. v. Martin, Treas., 53 Ohio St. 386, 400, 41 N.E. 690. Was it 'a law of a general nature'? This must be determined by the construction placed upon this clause by the Supreme Court of Ohio at the time the act was passed. Board of Commissioners v. Gardiner's Savings Institution, 119 F. 36, 47, 55 C.C.A. 614; Loeb v. Trustees, 179 U.S. 472, 491, 21 Sup.Ct. 174, 45 L.Ed. 280; Wilkes Co. v Coler, 180 U.S. 506, 531, 21 Sup.Ct. 458, 45 L.Ed. 642. The rule then in force was laid down in State ex rel. Hibbs v. Commissioners of Franklin Co., 35 Ohio St. 458, decided at the January term, 1880, in which an act directing the commissioners of Franklin county to levy a special tax for the improvement of a certain avenue or road was sustained on the ground that the law was not one of a general nature. This continued to be the controlling authority until overruled by Hixson v. Burson, 54 Ohio St. 470, 43 N.E. 1000, decided April 20, 1896, in which an act providing for the improvement of roads in Athens county was held void on the ground that a law regulating road improvements is one of a general nature. The Hibbs Case was expressly overruled. It is suggested that the act involved in the Hibbs Case applied to but one road, and therefore was necessarily local. It may be admitted it was local in its application, but under the decision in the Hixson Case it was of a general nature, because it related to road improvements, and therefore the case which held it valid was overruled. The act in the Hixson Case was also local in its application, being restricted to Athens county, but, being of a general nature, was held invalid. We are satisfied that under this provision of the Constitution, as interpreted in the Hibbs Case, the act under consideration would not have been held unconstitutional. Board of Commissioners v. Gardiner's Savings Institution, 119 F. 36, 47 55 C.C.A. 614.

2. It is also contended that this is a special act conferring corporate powers, in violation of the inhibition of section 1 of article 3 of the Constitution of Ohio. Conceding the act applied only to Van Wert county, and therefore was a special one, did it confer corporate powers? In determining this we must look to its operation and effect. State v. Judges, 21 Ohio St. 11; State v. Hipp, 38 Ohio St. 199. The mere fact that the act declared that the road commissioners who issued the bonds should be a 'body corporate with the powers and duties hereinafter specified,' did not definitively determine that the powers conferred were corporate within the meaning of this constitutional provision. We must look to their nature and the object for which they were bestowed. State v. Powers, 38 Ohio St. 54, 61. The question is whether the powers conferred are essentially such as are ordinarily possessed by corporations. It has reference to the intrinsic attributes of the board or body in question, and not to the form or manner in which the powers are exercised. Obviously, the mere name given or declaration made by the Legislature cannot furnish the test. If a special act should declare that the body created by it must not be deemed a corporation, when in fact the act conferred upon it all the attributes and powers of a corporation it is clear that the declaration would not avail to avoid the inhibition of the Constitution. The converse of this proposition must be equally true. Article 13 regulates corporations, private and municipal. The first section provides that 'the General Assembly shall pass no special act conferring corporate powers'; the second, that 'corporations may be formed under general laws, but all such laws may from time to time be altered or repealed'; and the sixth, that 'the General Assembly shall provide for the organization of cities and incorporated villages by general laws,' etc. County and township organizations are regulated by article 10, the seventh section of which provides that 'the commissioners of counties, the trustees of townships, and similar boards, shall have such power of local taxation for police purposes as may be prescribed by law.' Corporate powers being those which pertain to a corporation, which denote the existence of a corporation, obviously they may be conferred by either creating a new corporation or enlarging an existing one. Under the decisions of the Supreme Court of Ohio, the well-established rule appears to be that it is only when a law creates a new corporation or confers additional powers upon an existing one that it confers corporate powers within the meaning of section 1 of article 13. Atkinson v. Marietta, etc., R.R. Co., 15 Ohio St. 21; State ex rel. v. Cincinnati, 20 Ohio St. 18, 26; Walker v. Cincinnati, 21 Ohio St. 14, 8 Am.Rep. 24; State ex rel. v. Davis, 23 Ohio St. 434, 443, 444; State ex rel. v. Covington, 29 Ohio St. 102, 111; Neil v. Board of Trustees, 31 Ohio St. 15, 21; State v. Powers, 38 Ohio St. 54, 61; State ex rel. v. Pugh, 43 Ohio St. 98, 110, 1 N.E. 439; State ex rel. v. Smith, 48 Ohio St. 211, 218, 26 N.E. 1069; Commissioners v. State ex rel., 50 Ohio St. 653, 659, 35 N.E. 887; City of Cincinnati v. Trustees of Hospital, 66 Ohio St. 440, 445, 448, 64 N.E. 420; State ex rel. v. Jones, 66 Ohio St. 453, 488, 489, 64 N.E. 424, 90 Am.St.Rep. 592.

It is sought to bring the case within this rule by insisting that the road commissioners who issued the bonds constituted a corporation, because the act itself provided they should be 'a body corporate.' This mere provision did not constitute them a corporation. We must look to their powers and duties, as drawn from the entire act, to determine whether the General Assembly intended to made them a corporation. Counties, townships, school districts, educational institutions, and the boards in charge of them, are denominated by statute 'bodies corporate.' But it has repeatedly been held that they do not constitute corporations within the meaning of this provision of the Constitution. At the most, they are but local organizations which for purposes of civil administration are invested with a few functions characteristic of a corporate existence. Board of Commissioners v. Mighels, 7 Ohio St. 109, 116.

In Boalt v. Commissioners of Williams Co., 18 Ohio, 13, 16, the court dismissed a bill in chancery to enforce the satisfaction of a judgment against the county, on the ground that, although the commissioners were capable of suing and being sued, they did not constitute a corporation, but merely represented the county for limited public purposes; that the county, the real defendant, was not a corporation, but a necessary organization for political purposes under the government of the state.

In C., W. & Z.R.R. Co. v. Commissioners of Clinton Co., 1 Ohio St. 77, Judge Ranney thus defined a county (page 89, 1 Ohio St.):

'But what is a county? It is not imperium in imperio, in any sense. It is invested, as such, with no single attribute of sovereignty, and, for reasons already stated, it cannot be. Rightly considered, it is a mere instrumentality, a means in the hands of the legislative power to accomplish its lawful purposes, and to

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