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this time as to this class of legislation. There is another case in State v. Bargus, 53 Ohio St. 94, 41 N. E. 245, 53 Am. St. Rep. 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 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.' And on page 109, 53 Ohio St., page 247, 41 N. E., and page 628, 53 Am. St. Rep., Judge Shauck, rendering the opinion of the court, says: "The case does not call upon us to determine whether the requirement of uniform operation forbids the reasonable classification of counties upon substantial differences in population. Isolation is not classification. The appearance of general and uniform legis- | lation sought to be imparted to the act by the figures employed in the description 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 City of Cincinnati v. Steinkamp, 54 Ohio St. 284, 43 N. E. 490. On page 295, 54 Ohio St., and page 492, 43 N. E., 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 any other city of the state that may come into this class hereafter, and that is the provision in 92 Ohio Laws, p. 683 (section 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 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 30 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 time 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 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 further 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, 8 Ohio N. P. 152, is: "The statute providing for the creation of a fund for pensioning teachers in the city of Cleveland, by withholding a certain percentage from the salary of teachers, is unconstitutional, because 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.' The decision of the same case in the Cuyahoga circuit court will be found in 21 Ohio Cir. Ct. R. 261. The syllabus reads: "The act of April 10, 1900 (94 Ohio Laws, p. 539), to create a pension fund to provide for the pensioning of teachers in city districts of the second grade of the first class, and by which it is made the duty of the treasurer of the board of education in cities of the second grade of the first class to reserve at each payment of teachers' salaries a certain per cent. thereof for the purpose of creating a fund to be used in pensioning teachers who shall have pursued their professional employment a certain length of time, is an act of a general nature, which cannot have a uniform operation throughout the state, and is unconstitutional, as in violation of section 26, art. 2, of the constitution of Ohio.' 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 régular 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 v. Cowles, 45 Wkly. Law Bul. 206, 64 Ohio St. 162, 59 N. E. 895. Judge Shauck, in delivering the opinion of the court, says: 'We are not now to test 64 N.E.-8

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 the 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 6th 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 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. Be cause 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 valid, al though they actually conferred it upon but one city. But when that classification has been resorted to for the purpose of evading the requirement of section 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, 50 Ohio St. 103, 33 N. E. 408, 19 L R. A. 584, 40 Am. St. Rep. 653; City of Cincinnati v. Steinkamp, 54 Ohio St. 284, 43 N. E. 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 v. Jones, 22 Ohio Cir. Ct. R. 682, and Platt v. Craig, Id., 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 of 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 thereupon. 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 taxatlon is found in section 2, art. 12: 'Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise,' 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 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 the 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 section 4 provides: 'Private property shall be held inviolate.' It is argued in favor of this act that the 1 per cent. so taken and devoted to this purpose is not taken from the teachers or from their salaries, but it 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 Ohio Laws, p. 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 1 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. 313, the supreme court says in the first two paragraphs of the syllabus:

""The inalienable right of enjoying liberty and acquiring property guarantied 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. 136, 41 L. R. A. 689, 65 Am. St. Rep. 785, the supreme court says in the first paragraph of the syllabus: "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, 58 Ohio St., page 138, 51 N. E., page 689, 41 L. R. A., and page 785, 65 Am. St. Rep., 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 cer tain citizens from which others of the same

class are exempt; and section 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 30 successive years, and a male teacher is not so entitled until he has taught 35 years, but either may be retired by the board at the end of 20 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 computation 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."

Moses R. Brailey and Charles K. Friedman, for plaintiffs in error. I. N. Huntsberger, for defendant in error.

PER CURIAM. Judgment affirmed on the opinion of the circuit court.

MINSHALL, C. J., and WILLIAMS, BURKET, SPEAR, and DAVIS, JJ., con

cur.

(66 Ohio St. 121)

BOOCO v. MANSFIELD. (Supreme Court of Ohio. April 22, 1902.) ACTION ON NOTE-DENIAL OF EXECUTIONWANT OF CONSIDERATION-PLEADINGS. 1. In an action on a promissory note a denial of its execution and delivery is consistent with a separate ground of defense that the note is without consideration.1

2. When both defenses are made, and the plea of want of consideration is in general terms, it is error for the court to require the defendant to make the same definite and certain "by setting forth the facts and circumstances connected with the note which render it without consideration," and the error is continued in striking the defense from the answer for noncompliance with such order. The case of Chamberlain v. Railroad Co., 15 Ohio St. 225, distinguished.

(Syllabus by the Court.)

Error to circuit court, Fayette county.

Action by Minnie Mansfield against Isaac S. Booco. Judgment for plaintiff was affirmed in the circuit court, and defendant brings error. Reversed.

The defendant in error, Minnie Mansfield, sued in the court of common pleas to recover of plaintiff in error on a promissory note which reads as follows: "April 11, 1894, Jeffersonville, Ohio. One day after date I promise to pay to Minnie Mansfield five hundred dollars. Isaac S. Booco." The petition on the note is in the usual short form, and prayed judgment for the amount of the note and 6 per centum interest from its date. The defendant, Booco, answered the petition, setting up two grounds of defense, which are: "First defense: That said defendant did not make and deliver the promissory note in the petition described, and that the defendant denies each and every allegation contained therein. Second defense: The said defendant, for a second defense to the said petition, says that there is not now, nor was there at any time, any consideration whatever for the said pretended note set out and described in the said plaintiff's petition, and the said defendant therefore avers that the said pretended note is wholly without any consideration therefor, and that the same is void." The plaintiff below filed her motion for an order of the court requiring the defendant to make the first and second defenses more definite

1 See Bills and Notes, vol. 7, Cent. Dig. § 1505 [c, j, n).

and certain, which motion the court overruled as to the first defense, but as to the second defense sustained said motion, and required the defendant to set forth the facts and circumstances connected with said note which rendered it without consideration, and void, as claimed by him. The defendant excepted to this order of the court, and, the defendant not desiring leave to amend said second defense, and not amending the same as ordered, the court struck it from the answer, and to this order the defendant excepted. The case went to trial by jury on the first defense, and the plaintiff obtained a verdict for the amount demanded in the petition, for which the court rendered judgment, and overruled the motion of defendant for a new trial. The defendant prosecuted error in the circuit court, where the judgment of the common pleas court was affirmed. The case comes to this court on error, but the principal error relied on for reversal is the order of the trial court requiring the second defense to be made certain and definite as stated in the order, and striking the defense from the answer for noncompliance therewith.

Gregg, Patton & Gregg, for plaintiff in error. F. A. Chapin, for defendant in error.

PRICE, J. (after stating the facts). The first defense contained in the answer, when stripped of unnecessary verbiage, is a denial of the execution and delivery of the note, the subject of the action; and the second defense pleads generally that the alleged instrument is without any consideration to support it. This being its character, the plaintiff below, by motion, asked the court to require the defendant to make this ground of his defense definite and certain "by setting forth the facts and circumstances connected with said note which render it without consideration and void," and "by setting forth a complete statement of facts upon which said second defense is based." This motion was sustained, and thereby the defendant was required to so reform and amend the plea as to set out "the facts and circumstances connected with said note which render it without consideration and void," and "to set out therein a complete statement of the facts upon which said second defense is based." The defendant did not so amend, and for want of compliance with the order the defense was stricken from the answer. Was this error? is the only important question before us. There can be no doubt that the plea of want of consideration for a note is entirely consistent with a denial of its execution and delivery, for under the liberal provisions of our Code of Practice the defendant may set forth in his answer as many grounds of defense as he may have, whether they are legal or equitable in character, subject to the limitation that such several defenses must be consistent with each other. Rev. St. § 5067. This court held in Pavey v. Pavey, 30 Ohio

St. 600, that in an action on a note the defendant may plead a denial of its execution, I and that there was no consideration therefor. and that it is error in such case to require the defendant to elect upon which of the two defenses he will proceed to trial. If the note is not genuine, as alleged in the first ground, it had no consideration, as alleged in the second ground of defense, and we think that the defendant had not only the right to these consistent defenses, but he had the right to be consistent in his evidence to support them. So, if the instrument sued on is not genuine, what facts and circumstances connected with it could he set out? Indeed, it is difficult to see how the defendant could have complied with the order made in the case without abandoning his first defense, or at least very greatly compromising it. If he should set out "facts and circumstances connected with the note which render it without consideration," the plea so framed might at once be construed as admitting the execution of the instrument; and the very compliance with the order, if it could be complied with, would present an apparent inconsistency between the two defenses. And why should statements of facts be required in this case? The suit is between the payee and the alleged maker of the note. It lacks the usual words "for value received," and is not negotiable in form. Every fact surrounding its execution is, or could be, as well known to the plaintiff as to the defendant. If the note is not genuine, her knowledge about its origin is far superior to his. On the other hand, if the defendant made and delivered it, the plaintiff would not be a stranger to “the facts and circumstances" connected with its execution, and we think there is no necessity for the enforcement of the strict rule laid down by the trial court. We do not intend to unduly circumscribe the discretion and control which the court has over the filing and reformation of pleadings, but to say that, owing to the character of the two grounds of defense, the court erred in sustaining the mo tion complained of and in striking the defense from the answer. The case of Chamberlain v. Railroad Co., 15 Ohio St. 225, is cited to justify the action of the lower court. There were several questions involved in that case, and the least of all was the effect of going to trial without objection, where one of the defenses to a promissory note is a plea in general terms that it is wholly without consideration; and this court there decided that if the plaintiff, without requiring a statement of the facts on which the defense is based, joins issue, any evidence is admissible on the trial that tends to impeach or sustain the consideration. And the distinguished judge announcing the opinion, referring to the general terms of the plea, said: "This the plaintiff might have required to be made more definite by a statement of the facts upon which the defense was based; but he waived this right and joined issue." And

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