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Lucas Circuit Court.

335]; State v. Powers, 38 O. S., 54; State v. Best, 55 O. S. 638 [48 N. E. Rep. 1118]; State v. Ellet, supra.

Relator without remedy at law: Selby v. State, 64 O. S.; State v. Auditor, 43 O. S., 311, 319, 321 [1 N. E. Rep. 209]; State v. Williams, 29 O. S., 161; State v. Cleveland, 10 Dec. (Re.), 571 [22 Bull. 113, 115]; Ryan v. Hoffman, 26 O. S., 109; Commissioners v. Hunt, 33 O. S., 169; State v. Burgoyne, 7 O. S., 153; Commissioners v. Auditor, 1 O. S., 322, 326; State v. Board of Ed., 35 O. S., 368; State v. Comrs., 26 O. S., 364; Ex parte Scott, 19 O. S., 581; State v. Moser, 4 Circ. Dec., 557 [12 R. 247]; State v. Kurtz, supra.

Duty sought to be enforced results from office trust or station: State v. Halliday, 61 O. S., 171 [55 N. E. Rep. 175]; State v. Jennings, 57 O. S., 415, 422, 424 [49 N. E. Rep. 404]; State v. Brennan, 49 O. S., 33 [29 N. E. Rep. 595]; State v. Wilson, 29 O. S., 347; State v. Kearns, 47 O. S., 566 [25 N. E. Rep. 1027]; State v. Rust, 2 Circ. Dec., 577 [4 R. 329, 332]; Meacham, Off. & Offrs. Sec. 4; High, Legal Rem., Sec. 625; Commissioners v. Cambridge, 3 Circ. Dec., 669 [7 R. 72, 82]; State v. Staley, 3 Circ. Dec., 294 [5 R. 602, 605].

Relator not estopped: Lewis v. Symmes, 61 O. S., 471 [56 N. E. Rep. 194]; Mott v. Hubbard, supra; Columbus v. Agler, 44 O. S., 485, 486 [8 N. E. Rep., 302]; Wright v. Thomas, 26 O. S., 346; Teegarden v. Davis, 36 O. S., 601, 603; Stephan v. Daniels, 27 O. S., 527, 544, 546, Lear v. Halstead, 41 O. S., 566, 572; Tone v. Columbus, 39 O. S., 281; 301, 303. [48 Am. Rep. 428]; Tone's Exrs. v. Columbus, 1 Circ. Dec., 168 [1 R. 305]; Laylin v. Huron Co., 2 Circ. Dec., 193 [3 R. 338, 360, 363]. Chas. K. Friedman, for the defendants.

HULL, J.:

This is an action for a writ of mandamus. The relator, John I Ward, was in the employ of the board of education of the city of Toledo as a teacher in the district schools, at a salary of $1,200 a year, and as a teacher in the night schools at a salary of $3.00 per week during the period in question, teaching two nights in a week, making $12 00 for the four weeks, or month, of service in the night schools. He brings his action in mandamus to compel Mr. Hubbard, the business manager and clerk of the board of education, and John W. Dowd, president of the board, to sign and issue to him a warrant upon the treasurer for the salary coming to him, viz.: $24 00; he having demanded a warrant for this amount, and it being refused, upon the ground that under the school pension law, as it is called, they were authorized and required to deduct from that amount one per cent. thereof, to wit, twenty-four cents for the pension fund, and a warrant for the balance was tendered to Ward, which he refused, and he brings this action for a writ of mandamus to compel the warrant to be issued to him for the full amount.

The amount involved in this action is very small, but the action involves the validity of the pension statute, the relator claiming that it is unconstitutional and void, the defendants insisting that it is a valid and constitutional act, and further that the defendant, in any event, has acquiesced therein and agreed thereto, and to the provisions thereof, and acted in such a way that he is estopped from denying its validity.

The constitutionality of the act is attacked upon the ground that it is in conflict with Sec. 26, Art. 2, of the constitution, providing that all laws of a general nature shall have a uniform operation throughout the

State v. Hubbard.

state, and on the ground that it is in conflict with the provisions of the bill of rights of the state, in that it takes private property from its owner without just compensation and without due process of law.

The act is found in 92 O. L., 683, and it provides, in the first section:

"That in order to create a fund to be known as the school teachers' pension fund, one per cent. (1%) of the salaries paid to all teachers of city districts of the third grade of the first class, shall be deducted by the proper officers and paid into the city treasury to the credit of said fund, to be used exclusively tor pensions for teachers as hereinafter provided. All moneys received from donations, legacies, gifts, bequests or from any other source shall also be be paid into said fund, but no taxes shall be levied or any public moneys be appropriated for said fund, except as herein provided."

And the next section of the act provides for the selection of a board, by the board of education, to be known as the board of trustees of the school teachers' fund, which the act provides, shall be composed of seven members, three to be elected by the board of education, three to be elected by the teachers of the public schools and the superintendent of schools who, the act provides, shall be ex officio a member of said board. The section further provides that:

"The board of education of said city district shall, at its first regular meeting after this act goes into effect, elect three of its members for one year, one for two years, and one for three years and thereafter annually elect one of its members for three years, who shall serve as members of said board."

The act provides as to the pensioning of teachers, that after a teacher, either male or female, shall have taught for a period aggregating twenty years, he or she may be retired and put upon the pension list by the board of education, on account of physical or mental disabilities, and provides that any female teacher shall have the right to reti e after she shall have taught for a period aggregating thirty years, whether before or after, or partly before or after the passage of this act; and any male teacher shall have a right to retire and become a beneficiary under this act who shall have taught for a period aggregating thirty five years, whether before or after, or partly before or after the passage of this act; provided that three-fifths of said term of service shall have been rendered in the public schools of said city or district, or in the public schools of the county in which said district is located.

The act further provides that:

"Each teacher so retired or retiring shall be entitled during the remainder of his or her natural life to receive as pension an amount equal to one-half of the annual salary paid to such teacher at the date of his or her retirement, said pension to be paid monthly during the school year, but in no event shall such pension paid to any teacher exceed the sum of six hundred dollars in any one year."

It also provides for a pro rata division of the pension fund should there not be sufficient at any time to pay all of the pensions that are due. The last section provides for sick benefits, or the pensioning of teachers for a period not to exceed ten months, who have been temporarily disabled by accident or sickness, provided that they shall have taught ten years in the schools of the city district.

This section reads as follows:

Lucas Circuit Court.

"The death, resignation or removal of any teacher for cause, as aforesaid, shall terminate all interest of said teacher in said fund, but it shall be optional with the board of trustees of said pension fund to appropriate monthly to any teacher who has become disabled by accident or sickness to such an extent as to be incapacitated for teaching, a sum not to exceed one-half of said teacher's regular monthly salary, provided that said teacher shall have taught at least ten years in the public schools of a city district of the third grade of the first class, and providing that such monthly appropriation shall not continue for a longer period than ten months or one school year."

As I have said, the act is attacked upon the ground, first, that it violates a provision of Sec. 26, Art. 2, of the constitution, which is in this language: "All laws of a general nature shall have a uniform operation throughout the state."

This provision of the constitution has been before the Supreme Court a great many times and it will not be necessary in deciding this case to review all of the decisions that have been rendered upon it by the court, nor any great part of them Was this law one of a general nature? It is a law which relates to the common schools, that are recognized and provided for in the constitution of the state and constitute an institution in which every community and every citizen is interested, one of the public institutions of the state, and whether a law is or is not one of a general nature, as the Supreme Court has said, is to be determined by the subject matter of the law. In Kelley v. State, 6 Ohio St., 269, 271, of the opinion the Supreme Court say:

We have then in the constitution, first, a general, unqualified and positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general nature, or in its own affirmative terms, requiring that a uniform operation throughout the state shall be given to all laws of a general nature. Without undertaking to discriminate nicely or define with precision, it may be said that the character of a law as general or local depends on the character of its subject-matter. If that be of a general nature, existing throughout the state, in every county, a subject-matter in which all the citizens have a common interest-if it be a court organized under the constitution and laws within and for every county of the state, and possessing a legitimate jurisdiction over every citizen, then the laws which relate to and regulate it are laws of a general nature, and by virtue of the prohibition referred to, must have a uniform operation throughout the state.

A law relating to the public schools, an institution in which every citizen of the state is entitled to participate and enjoy, is a law of a general nature under this definition of the Supreme Court, and therefore the act under consideration is one of a general nature.

The question, then is, whether the act by its terms comes within the prohibition of the constitution or of the requirement of the constitution that all laws of a general nature shall have a uniform operation throughout the state.

The language of the act is a little obscure; the language in the first section referring to the salaries of teachers, "paid to all teachers of city districts of the third grade of the first class," etc. We hold that that should be construed to mean and should read "School districts in cities of the third grade of the first class," following the decision of this court in State v. Board of Elections, 8 Circ. Dec., 215 (16 R., 1), where the same or similar language was construed by the court. Putting that con

State v. Hubbard.

struction upon it, the act then was intended to apply only to school districts in cities of the third grade of the first class. While at that time there was only one city, viz., the city of Toledo, that fell under that description, yet other cities might in time, by change in population and proper municipal action, have come into this class, and so far as this description was concerned would and might have been subject to the provisions of this law.

The Supreme Court in many cases has discussed the classification of cities and many laws that appeared to be special in their character so far as they confer power have been sustained by the Supreme Court upon this doctrine and theory of the classification of cities and they have been held to have, under this doctrine, a uniform operation throughout the state, in that they applied to all cities, present and future, of the grade and class mentioned in the act.

The trend of the recent decisions of the Supreme Court seems to be to hold rather more strictly to an enforcement, if that be the proper word to use, of this provision of the constitution prohibiting legislation of this kind. In Commissioners v. Rosche Bros., 50 Ohio St., 103 [33 N. E. Rep., 408; 40 A. S. Rep., 653], in discussing an act to provide for the reiunding of taxes erroneously paid and affecting in its terms only the county of Hamilton, the Supreme Court say in the second paragraph of the syllabus:

"The subject of the act is in no respect local, but is of general interest to all the inhabitants of this state, and special legislation thereon is prohibited by Sec. 26, Art. 2, of the constitution of this state, which requires all laws of a general nature to have a uniform operation throughout the state.

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And, on page 113, the court say, in the opinion:

"The subject of the statute under consideration is the right of the taxpayer, who has paid taxes upon property exempt from taxation, to recover from the public the money thus paid, and its object is to ameliorate the supposed harshness of the existing law in this particular. The rights of the taxpayer in this respect should be uniform throughout the state, which rusult can be attained only by a statute designed to operate impartially upon every person who may bring himself within its beneficent provisions.'

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And at the bottom of page 114:

"And whatever amelioration of the hardships of the existing law in this respect, that the legislature in its wisdom deemed just and right, should have been extended to the whole people of the state without regard to the county boundaries. Otherwise there might be as many different laws on the subject as there are counties within the state, and an action to recover taxes paid in one county could be maintained upon a state of facts that in an adjoining county would be wholly inadequate for that purpose. This want of uniformity in the laws prescribing the rights and obligations of the inhabitants of the state was the very mischief that Sec. 26, Art. 2, was designed to prevent."

I call attention to a few of these recent cases for the purpose of showing what seems to be the disposition of the Supreme Court at this time as to this class of legislation. There is another case in State v. Bargus, 53 Ohio St., 94 [41 N. E. Rep., 245; 53 A. S. R. 628], where it was sought by an amendment to an act to abolish boards of infirmary directors in the counties of Erie and Huron, describing them by their

Lucas Circuit Court.

population at the last preceding federal census, and the court say in the syllabus:

"Laws providing for the public support of the poor are of a general nature."

says:

And on page 109 Judge Shauck rendering the opinion of the court,

"The case does not call upon us to determine whether the require ment of uniform operation forbids the reasonable classification of counties upon substantial differences in population. Isolation is not classification. The appearance of general and uniform legislation sought to be imparted to the act by the figures emploved in the descripuion of these counties and the regard that is paid to changes in population which may be disclosed by a subsequent federal census, do not at all affect the character of the act. Its validity must be determined, not by its form, but by its substance and practical operation. It provides exceptional legislation on the basis of a difference in population so trivial that no one supposes it to be the real ground of the distinction and it applies to no counties but to Erie and Huron.

With the wisdom of the policy which the general assembly has, through the provisions of this act, attempted to establish in the two counties named, we have nothing to do. If it be unwise, this section forbids its application to Erie and Huron counties except by a law of uniform operation throughout the state which shall affect the interests of all constituencies and thus challenge the attention and judgment of all representatives. If it be wise, this section beneficently requires that the people of the whole state shall share in its benefits. We are aware of no decision of this court in conflict with these views. "

I call attention also to the case of Cincinnati v. Steinkamp, 54 Ohio St., 284 [43 N. E. Rep, 490]. On page 295 of the opinion, the Supreme Court say:

"And it would seem to follow from this that the constitutional requirement of uniform operation throughout the state is not answered by showing that the law is of uniform operation within one city of the state only, however populous, and even though described as a city of the first grade of the first class, if it appears that the act does not confer power, corporate or administrative, and that the conditions undertaken to be legislated upon are common to other sections of the state generally."

And there is a full discussion of the question in this decision.

Now I have read these extracts from these decisions, for the purpose rather of illustrating the present tendency of the Supreme Court and the discussions that have taken place in these recent cases on this question of special legislation.

There is in this act under consideration, however, a provision which confines it strictly, as it seems to us, and wholly to the one city of the third grade of the first class that was in existence at the time of the passage of the act-the city of Toledo, and which prohibits the act from ever applying to any other city of the state that may come into this class hereafter and that is the provision in 92 O. L., 683, Sec. 2 of the act which provides:

"The board of education of said city district shall, at its first regular meeting after this act goes into effect, elect three of its members, one for one year, one for two years, and one for three years and thereafter annually elect one of its members for three years, who shall serve as

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