State v. Pugh (43 Ohio St. 98, 1885)

Owen, J.

I. It is maintained in behalf of the relator that the enactment in question is in conflict with section 27, article 2, of the constitution of Ohio, which ordains that: “ no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators.”

The reasoning is that by this act the defendants, Pugh, Outhwaito and Eberly, and Martin and Donaldson 'are appointed by the general assembly to redistrict the city of Columbus iuto wards ; that by the designation of the provision that “ it shall be the duty of the trustees of the sinking fuud heretofore appointed, under an act passed April 16, 1883, ... to proceed within five days after the passage of this act . . . to redistrict,” etc., the individuals who comprise the board are clothed with the duties defined by the act, and not the board itself; that the designation of “ the trustees heretofore appointed ” exclude any hereafter appointed, and that no successors of any present trustee can be lawfully appointed or qualified to act; that as they are the only persons ever appointed under that act, and as Columbus is the only city of the first grade of the second class in this state, and as the language “ heretofore appointed” can not be rejected, but must be given its ordinary and natural import, it is as if these trustees had been designated by name.

This view is not without plausibility to support it; yet with great respect for counsel it is submitted that the construction contended for is narrow and constrained. The act under which these trustees were appointed (80 Ohio L. 139) provides that: “In cities ... of the first grade of the second class, there shall be a board, designated as the trustees of the sinking-fund . to be appointed . . by the court of common pleas of the county in which said city is situated.” The act under consideration employs the statutory designation of this board, and giving to the language “ heretofore appointed” that liberal and reasonable construction to which it is entitled, we have no difficulty in construing this provision to have reference to that board of trustees of the sinking fund in office in the city of Columbus at the time of the taking effect of the act, and not to its members as individuals.

If we are right in this view, it follows that instead of appointing these trustee, the general assembly has simply clothed them with additional powers and duties. That this is not the exercise of the appointing power by the general assembly is how too firmly established to be called in question. State v. The Judges, 21 Ohio St. 1; Walker v. Cincinnati, 21 Ohio St. 14; State v. Covington, 29 Ohio St. 116.

II. It is further maintained that the act in question conferred on these trustees corporate powers in violation of section 1 of article 13 of the constitution, which ordains that, “ the general assembly shall pass no special act conferring corporate powers.”

Without considering in this connection whether this is a special act, let us inquire if it confers corporate powers upon the trustees of the sinking fund.

Their duties are to redistrict the city of Columbus into wards, designate one voting place in each ward, and perform other duties pertaining to a division of the city into wards.

What constitutes “corporate powers” depends largely upon whom the powers in question are conferred. The conferring of certain powers upon an existing corporation may bring them within the designation of “ corporate powers,” while conferring the same duties or functions upon individuals, or unincorporated bodies, fails to impart to them the attributes of corporate powers.

Neither the act in question nor that under which these trustees were appointed constituted them a corporate body.

Nor are they in any substantial sense municipal officers of the city of Columbus.

No reason has been shown by counsel in the argument in this case why the general assembly may not by an act divide a city into wards ; indeed, eminent counsel for the relator conceded in argument that he found nothing in the constitution that stood in the way of such a proceeding; but contended that such a redistrieting must be by a local and special act. Unquestionably. It would seem to be legally and physically impossible for the general assembly to redistrict a city, by defined boundaries, into wards, and still preserve to the act the qualities of a general law.

If the general assembly may, by a special act, divide a city into wards, it is not easy to see why it may not (avoiding the exercise of appointing power), invest some intermediate agency Avith poAver to accomplish the same end.

"While the division of a city into wards may be preliminary, and in fact essential to its proper equipment for the exercise of the usual functions of municipal government, it is not necessarily the exercise of any of such functions. How this question would be affected by conferring upon the existing officers of a municipal corporation, by a special act, poAver. to redistrict it into wards, is not a question now before us.

We conclude that, conceding this to be a local and special act, it does not, by authorizing the trustees of the sinking fund to redistrict the city, confer upon them corporate poAvers, and is not within the inhibition of section 1, article 13, of the constitution.

Local and special legislation is not forbidden by the constitution. It plainly requires that all laws of a general nature shall have a uniform operation throughout the state, hut it does not require that all acts of the general assembly shall be of a general nature.

The view we have here expressed is supported by State v. Covington, 29 Ohio St. 102 ; State v. Powers, 38 Ohio St. 54; and State v. Baughman, 38 Ohio St. 455.

III. It is further urged in support of the proceeding'of the relator that if this court shall be of opinion that this act does not confer corporate powers upon the trustees of the sinking fund, it does clearly confer such powers upon the city of Columbus, and being a special act, it contravenes the .provision already quoted that, “the general assembly shall pass no special act conferring corporate powers.”

(1). Is this a special aet relating exclusively to Columbus? It is now too late to question the validity of the plan of classification incorporated in our statutes, and which has received the repeated sanction of this court. State v. Brewster, 39 Ohio St. 653; McGill v. State, 34 Ohio St. 228; State v. Bowers, 38 Ohio St. 54; Bronson v. Oberlin, 41 Ohio St. 476. It is not to be urged against legislation, general in form, concerning cities of a designated class and grade, that but one city in the state is within the particular classification at the time of its enactment.

Nor is it fatal to the act in question that the belief or intent of the individual members of the general assembly who voted for the act was .that it should apply only to a particular city. Neither would it subject the act to the imputation that it was local and special, that, in the opinion of the general assembly, gross abuses had intruded themselves into the administration of the municipal affairs of a particular city, which seemed to call upon the general assembly to repair the wrong, for, as eminent counsel for defendants well say: “Some individual exigency, abuse, or malfeasan ce has formed the originating cause of almost, if not all, the acts of the general assembly — those of a general as well as those of a special nature.” Although it is alleged in the petition and admitted by the demurrer that no other city than Columbus is within, or can, before July next, come within the class and grade contemplated by the act, yet, if any other city may, in the future, by virtue of its increase in population and the action of its municipal authorities, ripen into a city of the same class and grade, and come within the operation of the act, it is still a law of a general nature and is not invalid, even if it confer corporate powers.

On the other hand, if it is clear that no other city of the state can in the future come within its operation without doing violence to the manifest object and purpose of its enactment, and to the clear legislative intent, it is a local and special act, however strongly the form it is made to assume may suggest its general character.

It is not the form a statute is made to assume, but its operation and effect, which is to determine its constitutionality. State v. The Judges, 21 Ohio St. 11; State v. Hipp, 38 Ohio St. 199.

A thorough and thoughtful examination of the various provisions of the act in question will, it is believed, reveal, with clearness and certainty, its true character. Beginning with its title: “An act to reorganize and consolidate cities of the first grade of the second class (Columbus), and to reduce the tax levy of said cities.” Although the word “ Columbus ” was inserted in this title with deliberation, by the hand of the general assembly, it would be unfair and illiberal to magnify the importance of, or give controlling effect to, so slight a circumstance. Yet we are not at liberty wholly to ignore it. It is one of the indices pointing — ■ feebly it may be — to the legislative intent. “ The title is framed in the same manner as the bill, and is sanctioned by the vote of both branches of the legislature; we may, therefore, consider it as explanatory of the object of the law.’’ Burnet, J., in Burgett v. Burgett, 1 Ohio, 480; U. S. v. Fisher, 2 Cranch, 386; U. S. v. Palmer, 3 Wheat. 610; Commonwealth v. Slifer, 53 Pa. St. 71.

Section 1 provides : “ That in cities of the first grade of the second class, it shall be the duty of the trustees of the sinking fund, heretofore appointed under an act passed April 16, 1883, . . . to proceed within five days after the passage of this act . . . to redistrict such cities.”

It is admitted that no other city of the state of the designated class and grade had such a board of trustees, or could before July next. What has already been said in this opinion concerning “ the trustees of the sinking fund heretofore appointed,” may aid us here. While we ought not unduly to magnify the importance of this language, yet it seems too plain for argument that it was within the legislative intent that this act should apply to a city of the first grade of the second class, having, at the passage of the act, “ trustees of the sinking fund.” It was known that Columbus was that city. Suppose the provision had been, “ that in cities of the first grade of the second class, having trustees of the sinking fund heretofore appointed, it shall be the duty of such trustees to proceed within five days after the passage of this act to redistrict such cities.” .Would it be questioned by anybody that this designation would have applied exclusively to the city of Columbus as certainly as if the city had been named, oras if the designation had been “cities of the first grade of the second class having a state house therein ?” This would effectually have annulled the classification ; withdrawn every attribute of a general law, and rendered the act local and special. This is the plain legal effect of the language actually employed. Then, while no other city can, before July next, come within its grade and class, the emphatic command of the act is that it shall be enforced promptly — within five days of its passage the work shall begin. It is not necessary to contend that the act must perish if not at once enforced. If there should be slight delay and neglect ou the part of the trustees in beginning their work within the five ■days, there seems little doubt that mandamus would lie to enforce obedience to its requirements, if the act were valid. But the fact still remains that the legislative intent was ■that it should be presently and promptly enforced.

It provides (section 4) that “ at the first municipal election held . . . after thepassage of this act, the judges of the . . . election shall be chosen by the electors of the wards present at the organization of the polls.”

It provides (section 6) that at the first municipal election held . . . next after such subdivision and redistricting (which is to be done promptly), one member of the, city council shall be elected in each ward.

It provides (section 7) that “ at the first municipal election in such city, next after such division and redistricting, one member of the board of education of such cities shall be elected in each of the wards.”

It provides (section 9) that a board of control of three members shall be chosen by the council elected at the first anual election held after the passage of this act, and within twenty days after the organization thereof.

It provides (section 18) that the officers of such cities, except the mayor, shall be chosen by the council elected at the first municipal election held therein after the passage of the act. These provisions contemplate the election to be held in April, 1885, and that when the trustees have completed their work of redistrieting, their powers are exhausted. No future action by them is contemplated. If we are right in this, it seems just as clear that the act does not contemplate the future appointment and action of similar trustees in any other city. While the plan for redistricting is temporary, the powers conferred on the city are to be permanent.

It will be observed that it is logically and physically impossible that any of the foregoing provisions can ever, in the history of the state, apply to any other city than Columbus.

It is just as clear that it was not within the legislative intent that they should apply to any other city. No other city can, in all time, come within the operation of the act without the aid of a construction of its language so violent as to amount to an officious assumption of legislative power by the court construing it.

It seems too clear for serious contention, then, that this is a local and special act applying exclusively to Columbus.

(2). This brings us to the question : Does the act confer corporate powers upon, that city? If it does, then so far as it does, it must fall, as in that case it clearly violates the inhibition that “ the general assembly shall pass no special act conferring corporate powers.”

We are not without the light of previous adjudications of this court to aid us in determining what are corporate powers as applied to the present case. In State v. Cincinnati, 20 Ohio St. 18, it ivas held that investing a municipal corporation with the additional powers of municipal government, of police regulation, of judicial jurisdiction, and of taxation and assessment, was the conferring of corporate powers. In this case, outlying territory was brought within the corporate limits of the city, and hence within the operation of the powers already possessed by the city.

In State v. Cincinnati, 23 Ohio St. 445, it was held that a special act assuming to confer on the city of Cincinnati the control, management, and power to make all rules for the government of “ The Commercial Hospital of Cincinnati,” was one conferring corporate powers, and hence unconstitutional.

State v. Mitchell, 31 Ohio St. 607, in its application to the case at bar. is instructive. White, C. J., delivering the opinion, said : “ It is true, the act in question is in the form, in a sense, of a general law. But as was said in the case of The State v. The Judges, 21 Ohio St. 11, the constitutionality of an act is to be determined by its operation, and not by the mere form it may be made to assume. The act is entitled ‘An act to provide for the improvement of streets and avenues in certain cities of the second class.’ And by the first section it is made applicable to ‘ cities of the second class having' a population of over thirty-one thousand at the last federal census.’ Columbus is the only city in the state having the population named at the last federal census, and the act, therefore, applies alone to that eity, and never can apply to any other. The effect of the act would have been precisely the same if the eity had been designated by name instead of by the circumlocution employed. That the act undertakes to confer corporate power upon the city can not be doubtedfor while the property owners are required to be promoters of the improvement, the authoi’ity to direct it to be made is vested in the city council, and the bonds of the .city are to be used to raise money to pay for it.”

Still more instructive is the case of State v. Constantine, 42 Ohio St. 437.

In that ease the court was called upon to consider the constitutional validity of an act authorizing “ cities having a population of twenty thousand and not exceeding thirty thousand five hundred by the last federal census, and that have not been advanced to cities of the second grade, second class,” to elect by a vote of the electors, police commissioners, who, with the mayor, should constitute a board, invested with “ all powers and duties with respect to the appointment, regulation, government, and control of the police.” The act provided that no elector should at any election vote for more than two persons for such commissioners, and that any ballot containing the names of more than two persons for such office should not be counted.

The proceeding was in quo warranto to oust the members of this board from the exercise of their offices. The validity of the act was assailed upon the grounds, (1) that it abridged the constitutional'right of each voter at such election to vote for each candidate for each office, and, (2), that it was a special act conferring corporate powers. Judgment of ouster was entered. The principal opinion was delivered by Mcllvaine, J., who placed the judgment upon the first ground of objection.

Okey, J.,

delivered a concurring opinion. It so clearly illustrates what is meant by “ a special act conferring corporate powers,” as applied to the present case, that, lest the strength and terseness of its language should be imperiled by an attempt to summarize or paraphrase it, the foliowing extracts are given in the language of the concurring judge:

“ I do not dissent from the view expressed in the opinion of Mcllvaine, J., but I prefer to withhold the expression of an opinion upon that question until such opinion becomes necessary.. I think the case will be properly decided when a correct answer is given to the 'question, whether the act, so far as its validity is involved in this case, is in conflict with the provision of the constitution inhibiting the granting of corporate powers by special act.

“ Not only is the fact found in the record that the words above quoted from the act apply to the city of Springfield alone, but without such finding this court should take judicial notice that the words never did and never can apply to any other municipal corporation than Springfield; and, consequently, the act, to that extent, is local and special. State v. Covington, 29 Ohio St. 102; McGill v. State, 34 Ohio St. 228, 258, 270 ; State v. Brewster, 39 Ohio St. 653 ; Devine v. Com. of Cook Co., 84 Ill. 560. And as the act assumes to confer upou the city of Springfield power to hold an election of its electors for public officers for the corporation, and exercise other important functions, it is too clear for argument that that act, in form, confers corporate power. State v. Mitchell, 31 Ohio St. 529. And the act being invalid, for the reason stated, so far as it authorizes the city of Springfield to hold a corporate election, and it being neither reasonable nor probable that the legislature would have made provision with respect to Springfield, unless the whole act could have effect with respect to that city, it follows that the whole act is void, so far as Springfield is concerned. State v. Sinks, 42 Ohio St. 345. . . . Believing the position I have assumed to be impregnable, I am content to rely upon it.”

It was not made to appear in that case that any new police powers were conferred on the city of Springfield by the act in question, or that any thing more was contemplated by it than the conferring of the exercise of the police power which the city already posssessed upon new agencies and instrumentalities.

If the grant of authority to a municipal corporation to elect by a popular vote four police commissioners to control its police is to confer corporate power, how much more emphatically is it so to invest such a corporation with authority to chose a “board of control” of three members who are to be almost supreme in the government and administration of the affairs of a great city.

The analogy'is not at all disturbed by the fact that the city is by the act authorized to elect the couneilmen who are to appoint the board of control. It is still the act of the- city. The power is a radically new one, never before possessed in any form by the city. This is an answer to the argument for the respondents that the act confers no new powers upon the city, but simply changes the agencies by which the powers already possessed are to be exercised.

Heretofore two members of the city council have been chosen in each ward. By this act the wards are to be differently comprised, and but one member of the council chosen in each. This power of election, so radically new, is conferred by this special act.

Among the many powers not before possessed by the city is that conferred upon it to appoint, with numerous other officers, “ a prosecuting attorney of the police court, who shall also act as assistant prosecuting attorney of the county in which 'such cities are located.” It will not be contended that the conferring of power upon a city to appoint county officers is simply the transfer of a power already possessed from one agency of the city to another.

In the light of the cases cited, and of the reason and logic of the case itself, it is submitted that this act so clearly confers corporate powers upon the city of Columbus as to leave no ground for serious controversy.

It is maintained, however, that to hold this act to be unconstitutional is to antagonize former decisions of this court.

Walker v. Cincinnati, 21 Ohio St. 14 (known as the “ Cincinnati Southern Railroad Case”); State v. Brewster, 39 Ohio St. 653 ; the unreported case of State ex rel. McCarty v. Brewster; The State v. Covington, 29 Ohio St. 102; The State v. Baughman, 38 Ohio St. 455, are relied upon as sustaining the act in question.

It must be conceded that the principle declared in Walker v. Cincinnati is an important one.

By the principle therein declared, the general assembly may authorize a city of the state to pledge its corporate property, its revenues, the property of its citizens (through its taxing power) in the sum, if necessary, of twenty millions of dollars, to construct, own, operate, or lease a railroad to the Gulf of Mexico.

The proposition is one to strike thoughtful men with alarm ; as it did the court itself.

Scott, C. J., speaking for the court, declared: “This is the first instance, in the history of the state, so far as we are aware, in which the general assembly has undertaken to authorize municipalities to embark in the business of constructing railroads, on their own sole account, as local improvements. . . . But we must bear in mind that the question is one of legislative power, and not of wisdom, or even of the justice of the manner in which that power, if it exists, has been exercised. Had we jurisdiction to pass upon the latter question, we should probably have no hesitation in declaring the act under review to be an abuse of the taxing power.”

But it is profitable to inquire: What is claimed from these cases? Is it maintained that in either case this court was considering the validitity of a special act conferring corporate powers? And if it was, is it claimed that this court in either case up>held such an act ? It is but fair to this court to say that in the Walker case it was not claimed that the act in question was special or that it conferred corporate' powers.

There is not a suggestion from the opening sentence to the close of the long and very able opinion of the learned chief justice, that either question was involved in that case. What might have been the conclusion of the court in that ease if these questions had been considered, it is idle to conjecture.

It is no reflection upon the eminent judges who comprised this court at the time of that decision, however, to say that the announcement by this court that it is not eager to extend the application of the principle of the Walker case, would not be regarded as a menace to the rights or liberties of the people.

If it is claimed that State v. Brewster is authority upon the question of an act similar to the one before us, which conferred corporate, powers, it may be said that throughout the able opinion of Okey, J., in that case, there is not the slightest suggestion that such a question was involved. The clause of the constitution pertaining to that question is not once quoted or alluded to.

But we disclaim all purpose of suggesting any doubt concerning the conclusions reached and questions decided in the Brewster case. The legislation involved in that case was held to be general. With that holding we are still content. .

It it not enough to afford a binding precedent for us that these questions may have been lurking in the record of a former case, and might have been raised and considered. If they were not considered, it is as if they were not in the cases at all. We are not now reviewing, or considering the soundness of, the conclusions announced in either of those cases.

But to contend that this court has ever upheld a special act conferring corporate powers, is to argue that, in a moment of thoughtlessness, or, worse yet, in a moment of supreme recklessness, and by an act of judicial usurpation, it has trampled under foot a provision of our constitution plainly ordaining: “That the general assembly shall pass no special act conferring corporate powers.” The assumption is utterly unsupported by any former adjudication of this court.

In the eases of State v. Covington and State v. Baughman, supra, the powers in question wmre conferred upon unincorporated boards, and are relied upon to support the conclusions already announced in this opinion, that so far as the act conferred powders on the trustees of the sinking fund it was not unauthorized.

These cases also lend support to the further view that, so far as the act conferred corporate powers upon the city of Columbus, it is unauthorized; as they illustrate the distinction already defined between powers conferred upon a corporation and those conferred upon an unincorporated board or body.

It sometimes occurs that an act of the general assembly is enforced by this court, which, thereafter, when for the first time, its constitutionality is questioned, is overturned.

It is a familiar principle that courts are not officiously to raise constitutional questions not urged by counsel. In fact, it is the duty of courts of last resort not to decide an act unconstitutional so long as there are other grounds on which the case may be disposed of. Butzman v. Whitbeck, 42 Ohio St. 232; State v. Sinks, 42 Ohio St. 345; Cooley’s Con. Lim. 199. In the case of State v. Mitchell, supra, it was urged that an act substantially like the one in question, so far as it was special and conferred corporate powers, was before this court in Welker v. Potter, 18 Ohio St. 85, and was upheld. White, C. J., said, in the Mitchell case: “ The question under consideration was not made or considered in Welker v. Potter. . . . The fact that the act conferred corporate power, and was thus in conflict with section 1, article 13, was not suggested in argument or considered by the court. That case is, therefore, not to be considered as authority on any question involving the grant of corporate power.”

A still stronger case, illustrative of the rule that questions not considered in a former ease are not authority now, although they appeared in the record and might have been urged, is Fouts v. The State, 8 Ohio St. 98. Fonts had been tried for murder in the first degree, convicted, and sentenced to be hung.

Among the grounds urged for a reversal of the sentence, was the claim that the indictment failed to charge the offense ,of which he was found guilty. It transpired that other prisoners before him had been convicted and executed under the same form of indictment. Indeed, in a former case, Moore v. The State, 2 Ohio St. 500, a conviction under the same form of indictment was sustained and the prisoner executed.

But on investigation, the court found the indictment to be fatally bad, in that it did not charge the crime for which Fouts was convicted. What did the court do ? Bid it tell the prisoner that his conviction and sentence were illegal and void, aud were under an indictment which did not charge a capital offense, but that he must be executed; that a prisoner had already been ordered to be executed under the same form of indictment, and that the court, from an altar of justice must be turned to an altar of sacrifice, in order that it should be consistent with itself? On the contrary, the court promptly set aside the sentence of death!

Bartley, C. J., speaking for the court, said : “ It has been urged that this court had decided this question otherwise, in the ease of Moore v. The State of Ohio, 2 Ohio St. 501, by approving an indictment of the same kind. In answer to this, it is sufficient to say, that this question was not raised, or brought to the attention of the court in that ease. A reported decision, although in a case in which the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a principle not only not passed upon, but not raised or even thought of, at 'the time of the adjudication.”

If it be conceded, then, that the act involved in the Walker case, or any act supplementary to it, and authorizing the issuing of additional bonds by the city .of Cincinnati, was a special act conferring corporate powers, yet any adjudication not involving the consideration of that question is no authority now.

It is not easy to conceive of an argument supporting the act now in question, based on prior adjudications, which is not, at the same time, a labored apology for disregarding the constitutional provision which this case involves.

But let it be supposed that a special act conferring corporate powers had heretofore been upheld by this court in defiance of the constitution. Will it be claimed that the rule of stare decisis requires us to follow it ? While it is important that this.court should be consistent, it is also important that it should be right; especially upon all questions involving the constitution, which the people have, ordained for our guidance and their protection. There is no rule of stare decisis which exacts of this court a blind and sullen adherence to a palpable wrong ! For if it be true that in the past — bowing to the clamors of expediency oi’ of some special exigency — we have broken through the limitations and departed from the plain provisions of the constitution, we can not return too soon.

But it is submitted, however, that no case can be found which needs to be overruled or substantially qualified in order to sustain the conclusion we here announce, which is that the act in question, so far as it confers corporate powers upon the city of Columbus, is unconstitutional and void.

IV. But one question remains. How does the conclusion just announced affect those provisions of the act, which concern the powers of the trustees of the sinking fund? It is a familiar principle that when part of a legislative enactment is found to be unconstitutional, and another part, which, standing alone, would be free from constitutional infirmity, are so connected in the general plan and object of the act that it is highly improbable that the legislature would have enacted the one without the other, the one is so affected by the infirmity of the other that both must fall. Lookiug again to the title of the act, we find that.it is not simply one to divide the city of Columbus into wards. It is an act “to reorganize and consolidate” the city. The general plan of the act is to invest the city with an entirely new system of municipal government.

Looking at the entire act, it is highly improbable that the legislature would have enacted the provisions for redistricting the city without those for its reorganization. State v. Commissioners, 5 Ohio St. 507; State v. Sinks, 42 Ohio St. 345. The conclusion is inevitable, that so much of the act as provides for redistrieting the city is also invalid.

In declaring this result we are not unmindful that it is a grave matter to overturn, by judicial construction, a deliberate enactment of the general assembly. All presumptions are .in favor of the power of that body to enact the law. All considerations involving the wisdom, the policy, or the expediency of the act are addressed exclusively to that branch of the state government. Its power to enact the law is the sole question addressed to this court. So long as doubts concerning this power remain, it is our plain duty to resolve them in favor of the validity of the act.

But when the unconstitutionality of an act is very clear to this court, it is clothed with no higher function — it is invested with no more exalted duty — than to say so with promptness. To surrender our convictions to a mere sentiment, or to an apprehension that it may seem an arrogant assumption of superior wisdom to declare a legislative enactment invalid, would be a weak disregard of a plain duty, as dangerous to the state as the void enactment itself. Within the limitations of' the constitution there is safety and stability. Beyond them there is always peril and uncertainty.

Thus, at much length, do we submit the views which support our conclusions. The excuse for the length of this opinion is to be found in the belief that nothing is more potent to allay the smart and disappointment of an adverse judicial decision, than the assurance that it is the product of thoughtful deliberation and sincere conviction.

The demurrer is overruled and judgment of ouster entered.

Okbv, J.,

dissenting. 1. By the act of Eebruary 27,1885, “ to reorganize and consolidate cities of the first, grade of the second class (Columbus), and to reduce the ta