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State v. Hubbard.

members of said board; the teachers of the public schools of said city district shall within thirty days after this act goes into effect * * * elect three of their number," etc.

And the act provides at, the end that it shall take effect and be in force from and after September 1, 1897. By these provisions, then, the board of education under this act was required to select three members of this committee or board at its first regular meeting after the act took effect, and the teachers were required to select three members within thirty days after the act went into effect. At the time this act went into effect there was but one city, the city of Toledo, to which it could apply. And within the period designated for the action of the board and of the teachers there was but the one city to which the act could apply. The act makes no provisions for cities which may come into this class thereafter, but it requires that this action shall be taken by the board of education and the teachers within this limited period after the act goes into effect.

It is argued that this might apply to any city that came into the class at any time thereafter: that the language of the act might be so construed as to include such cities and that the boards in such cities and the teachers might take action after they came into the class designated, but we do not so construe this act. It is contrary to the plain language of the act itself, which provides that such action shall be taken within a certain time after the act goes into effect. The language of the act itself and its title, seem to indicate that it was intended by the legislature that it should apply only to the city of Toledo. This act not only did not apply to any city in the state but Toledo at the times of its passage and taking effect, but it could never apply in the future to any other city. The subject-matter of the act is one of a general nature, and in which all the people of the state are interested. It comes within both the language and the spirit of this provision of the constitution. If it is well for the schools of the city of Toledo to have a system of pensions, if it is better for the teachers and the people of this city to have such a system, then it would be better for the people of any such city or of the cities generally of the state. There are no considerations in this matter, at least none called to our attention, that apply especially to the city of Toledo.

A similar act has very recently come before the circuit court of Cuyahoga county, and an act somewhat similar, has very recently been passed upon by the Supreme Court of the state, and in each case the act was held to be unconstitutional. The Cuyahoga county case involved a teachers' pension law applying to the city of Cleveland. It first came before Judge Wing of the common pleas court of Cuyahoga county, and now judge of the district court of the United States, and was by him declared to be unconstitutional upon the ground that it violated this provision of the constitution and violated the furtner provision of the constitution against the taking of private property without due process of law. The syllabus of Judge Wing's decision in State v. Kurtz, 11 Dec. 266 (8 N. P., 152), is:

"The act of Apri! 10, 1900, 94 O. L., 539, providing for the creation of a fund for pensioning teachers in the city o! Cleveland, by withholding a certain percentage from the salary of teachers, is unconstitutional, in that it takes from said teachers, property without due process of law, and because it is a law of a general nature, which should not be confined to the city school district of Cleveland."

Lucas Circuit Court.

The decision of the same case in the Cuyahoga circuit court will be found in 11 Circ. Dec., 705 (21 R., 261). The syllabus, paragraphs 1, 2, 3 and 4, is as follows:

"1. Laws relating to the subject-matter of education and the efficienecy of our public school system, both from the vital interest which all people of the state have in them, as well as from the provisions of Sec. 2, Art. 6, of the constitution, are of a general nature.

"2. The act of April 10, 1900, 94 O. L., 539, providing for the creation of a pension fund for the pensioning of teachers in city districts of the second grade of the first class, and making it the duty of the treasurer of the board of education in such cities to reserve ten per cent. of teachers' salaries for such purpose, is within the inhibition of Sec. 26, Art. 2 of the constitution, providing that all laws of a general nature shall have uniform operation throughout the state, and is invalid, there being but one such city in the state.

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3. Section 6 of act 94 O. L., 539, relating to the creation of a teachers' pension found in cities of the second grade of the first class, in providing that the retiring board therein provided for shall be held in September, 1900, determines the fact that no other city which is not of the class and grade named in the act at that time could ever come within its provisions, and therefore renders the law unconstitutional as lacking uniform operation throughout the state.

"4. The law in question, being applicable to but one city in the state, cannot be upheld on the ground that it adds to the efficiency of the public school system, in making provision for teachers who, during long years of service, have given their best efforts to the betterment of ociety. That argument bears directly upon and supports the proposition that the law is of a general nature and should have uniform operation throughout the state."

The Cleveland act provided for action being taken by the board upon a certain date mentioned in the act, while the act under consideration provides for action being taken as I have pointed out at the first regular meeting after the act goes into effect. It seems to us that the result is the same and that this act is by such terms confined to the city of Toledo exclusively, as was the act under consideration in Cleveland confined to that city. The Supreme Court, in the Cleveland "Park Case" as it is called, very recently held a statute, containing a similar provision, unconstitutional. I refer to State ex rel. v. Cowles, 64 Ohio St., 162. Judge Schauck, in delivering the opinion of the court, says:

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'We are not now to test these acts by our knowledge of their actual operation, but we are to imagine that the classification is to remain unchanged indefinitely, so that without limit of time other municipalities may enter the same grade and class with Cleveland and so become subject to all legislation which is valid as to that city, and then inquire whether all the cities which may enter said grade and class will become subject to the acts now under consideration. In the first section of the act of April 6, it is provided that the first election of the board of park commissioners shall be held on the first Monday of April, 1901, and of course it can operate only in cities which on that day are in the second grade of the first class. In the brief of counsel for the defendant this point is met with the suggestion that under existing statutes the cities of Toledo and Columbus, having the population required to advance them to the second grade of the first class, might by their voluntary action effect such advancement so that they might be, or at least they might

State v. Hubbard.

have been, advanced before the first Monday of April, 1901, and there would be three cities subject to the operation of this legislation. In the view we are now taking of the subject this suggestion of the imagination is legitimate, but it is manifestly inadequate. It assumes that the doctrine of classification will be satisfied if the legislation applies to a plurality of the cities belonging to the grade and class. The doctrine is not quite so bad as that. It is of its essence that every municipality in the state now below the first class may be advanced to the second grade of the first class upon its attaining the requisite population and taking appropriate action for that purpose, and that every one of them, when so advanced, without limit as to their numbers or the time of their advancement shall become subject to every legislative act which is now valid as to that grade and class. It is therefore, quite evident that at this point the imagination of the framer of these acts varied in its flight and failed. That the city of Cleveland alone was in contemplation in this act is quite evident from others of its provisions which are set out in the statement of the case.

"Because the doctrine of classification of cities is not to be extended, this legislation is void in view of others of its provisions. According to that doctrine such classification has been recognized as effective to prevent the present actual operation of the constitutional provision quoted, prohibiting conferring of corporate power by special acts; and acts conferring such power have been held valid, although they actually conferred it upon but one city. But when that classification has been resorted to for the purpose of evading the requirement of Sec. 26 of article 2 of the constitution, that all laws of a general nature shall have a uniform operation throughout the state.' Its efficiency for that purpose has been denied. Commissioners v. Rosche Bros., 50 Ohio St., 103 [33 N. E Rep., 408, 40 A. S. Rep., 653]; City of Cincinnati v. Steinkamp, Trustee, 54 Ohio St., 284 [43 N. E. Rep., 490]. "

While fully appreciating as we do the rule that a court should not declare a law unconstitutional where any doubt exists as to its validity, we do not forget the other part of the rule as laid down by our Supreme Court, that no higher duty of a court exists than to declare an unconstitutional law invalid, and in our judgment, this law is clearly unconstitutional, for the reason stated. But in so holding the court do not recede from nor intend to depart in any respect from the position taken in the cases of State ex rel. v. Jones, 11 Circ. Dec., 496, and Platt v. Craig, which were heard and decided together, and which have been cited by counsel for defendants. The bridge law, so-called, was sustained in this decision on the doctrine of classification, that act containing no such restrictive provision as the one incorporated in this law.

A majority of the court are also of the opinion that the law is unconstitutional upon another ground, in that it violates the provision of the constitution as to taxation and permits and requires the taking or private property without due process of law. Judge Parker, while concurring in the judgment of the court and not dissenting from this further ground, reserves his judgment thereon. Money taken from the teachers by virtue of this statute is either taxation for public good or it is the taking of money from one person for the benefit of another contrary to the will of such person from whom it is taken and without his consent. The provision of the constitution as to taxation is found in Sec. 2, Art. 12. Laws shall be passed taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint-stock companies, or other

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Lucas Circuit Court.

wise," etc. Now if pension legislation is for the benefit of the public, for the public good, then money raised for such purposes can only be regarded as taxes and this money deducted from the teachers' salaries is a tax: it is taking a certain percentage of the money or property that they are entitled to, from month to month, for the public good, and if this pension legislation can be sustained and if a tax to raise pensions, can be levied, in our judgment, that tax should be levied upon all of the property and citizens owning property in the school district where the pension law is in force. A law which imposes the burden of taxation upon one class of citizens, to-wit, the teachers, cannot be called a law taxing by a uniform rule. If, on the other hand, the money so deducted is not to be regarded as taken for the public good, and as taxation, then it is the taking of private property from one citizen for the benefit of another, without his consent and against his will. The first section of the bill of rights provides:

"All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property."

And Sec. 19 provides: "Private property shall ever be held inviolate."

It is argued in favor of this act that the one per cent. so taken and devoted to this purpose is not taken from the teachers or from their salaries, but is taken and should be held to be taken from the public funds; that the effect and result of the act is simply that the teachers are paid that much less in salaries; but this argument is contrary to the express language of the statute (92 v. 683) which provides, in the first section: "One per cent. of the salaries paid to all teachers *** shall be deducted by the proper officers and paid into the city treasury," so that the statute by its own terms and express language provides that this money shall be deducted from their salaries; and that is in fact what was done in this city, and sought to be done in this case. Contracts were made with the teachers to pay them a certain salary, and from that salary as agreed to be paid one per cent. was deducted and devoted to this purpose. A teacher's salary is his property; he has a right under the constitution to use that salary for his own benefit or for the benefit of the others as he sees fit. If, he thinks it best to provide for old age he may do so, but if he prefers to spend his money as he earns it, it is his right under the constitution to do that.

In Palmer v. Tingle, 55 Ohio St., 423 [45 N. E. Rep., 313], the Supreme Court say, in the first two paragraphs of the syllabus:

"The inalienable right of enjoying liberty and acquiring property guaranteed by the first section of the bill of rights of the constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints as are necessary for the common welfare.

"Liberty to acquire property by contract, can be restrained by the general assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people, and such restraining statute must be of such a character that a court may see that it is for such general welfare, protection and benefit. The judgment of a general assembly in such cases is not conclusive."

In State v. Gardner 58 Ohio St., 599 [51 N. E. Rep., 136; 41 L. R. A., 689; 65 A. S. R., 785], the Supreme Court say, in the first paragraph of the syllabus:

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State v. Hubbard.

"The right to labor and enjoy the rewards thereof is a natural right which may not be unreasonably interfered with by legislation." And on page 610 of the opinion, which was delivered by Judge Spear, the court say:

"Our bill of rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens from which others of the same class are exempt, and Sec. 26, Art. 2, of the constitution requires that all laws of a general nature shall have a uniform operation throughout the state.

A statute, therefore, which imposes special restrictions or burdens, or grants special privileges to persons engaged in the same business under the same circumstances, cannot be sustained, because it is in contravention of the equal right which all are entitled to in the enforcement of laws and in the enforcement of liberty, and in the enjoyment of an equal right in the acquisition and possession of property, and so is not of uniform operation."

Under this act, a female teacher is not entitled to retire and be put on the pension list upon her own motion until she has taught thirty successive years, and a male teacher is not so entitled until, he has taught thirty-five years, but either may be retired by the board at the end of twenty years on account of disability so that the possibility that one from whose salary this percentage is deducted may ever enjoy any of the benefits of this fund so created is very remote, and as shown by the evidence in this case, there has only been one teacher put upon the permanent pension list since the law went into effect, and from computations and calculations it appears that only a very few will be entitled to be put upon the permanent pension list within the next five years. The amount so paid by the plaintiff, or by any other teacher, may at some time result in a benefit to him, but the chances are that it will not. In our judgment, each individual teacher has the right to draw his full salary and spend it or save it as he sees fit, and that is his right as a citizen under the constitution.

It is urged that the relator has been estopped by his conduct from attacking the validity of this act. We think that is not sustained by the evidence the evidence shows that he has been constantly opposed to the enforcement of the law from its enactment; that he has apparently never lost an opportunity to state his opposition; that he was elected a member of the pension board by a vote of three-fourths of the teachers as their representative in opposing the enforcement of the act. He accepted an appointment it is true as a teacher and was notified in writing that his appointment was subject to the provisions of law and the rules of the board which might be enforced relating to the appointment and compensation of teachers, but the accepting of such an appointment does not estop him from attacking the validity or constitutionality of any act that may be in the statute books. He accepted the appointment subject only to the valid and constitutional laws of the state. The plaintiff has done nothing to stop him from raising this question.

We are of the opinion that this act is unconstitutional and void, and therefore, the prayer of the petition will be granted and a writ of mandamus will issue as therein prayed for.

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