1. By an Act of the Legislature of Ohio passed Feb. 16, 1846, it
was provided that, upon the fulfillment of certain terms and
conditions by the proprietors or citizens of the Town of Canfield,
in Mahoning County, the county seat should be "permanently
established" at that town. Those terms and conditions having been
complied with, the county seat was established accordingly. On
April 9, 1874, the legislature passed an act providing for the
removal of the county seat to Youngstown. Certain citizens of
Canfield thereupon filed their bill setting forth that the act of
1846, and the proceedings thereunder, constituted, within the
meaning of the Constitution, an executed contract the obligation of
which was impaired by the later act, and praying for a perpetual
injunction against the contemplated removal.
Held: 1. that
no such contract existed; 2. that the act of 1846 was a public law
relating to a public subject with respect to which the legislature
which enacted it had no power to bind a subsequent one; 3. that if
that act and the proceedings under it constituted a contract, it
was satisfied on the part of the state by establishing the county
seat at Canfield, with the
Page 100 U. S. 549
intent that it should remain there; 4. that there was no
stipulation that the county seat should remain there in perpetuity;
5. that the practical interpretation of the phrase "permanently
established," which has been in long and frequent use in the
statutes of Ohio with respect to county seats established otherwise
than temporarily, is, though by no means conclusive, entitled to
consideration.
2. In the interpretation of statutes like that of 1848,
supra, the rule is that, as against the state, nothing is
to be taken as conceded but what is given in express and explicit
terms, or by an implication equally clear.
The controversy relates to the removal of a county seat in Ohio
from one town to another.
The case, briefly stated, is this: on Feb. 16, 1846, the General
Assembly of that State passed "An Act to create the County of
Mahoning." The first section creates the county and defines its
boundaries, including among other towns Canfield and Youngstown,
and declares that it "shall be known by the name of Mahoning, with
the county seat at Canfield."
The fifth and eighth sections are as follows:
"SEC. 5. That the court of common pleas and supreme court of
said county shall be holden at some convenient house in the Town of
Canfield until suitable county buildings shall be erected."
"SEC. 8. That before the seat of justice shall be considered
permanently established at Canfield, the proprietors or citizens
thereof shall given bond with good and sufficient security, payable
to the commissioners of said county, hereafter to be elected, for
the sum of $5,000, to be applied in erecting public buildings for
said county, and that the citizens of Canfield shall also donate a
suitable lot of ground on which to erect public buildings."
To secure the permanent establishment of the county seat at
Canfield, numerous citizens of that town -- some of whom are
plaintiffs in this suit -- in compliance with the provisions of
said sec. 8, duly executed their bond for $5,000, which was
accepted by the county commissioners. A suitable lot of ground on
which to erect the county buildings was also, by their procurement,
conveyed to the county.
Thereupon said citizens erected on the lot a commodious
courthouse suitable for the transaction of the public business of
the county, at a cost of more than $10,000, which, on June 29,
1848, the commissioners accepted in behalf of the
Page 100 U. S. 550
county, in full satisfaction of the bond, and as a full
compliance with said sec. 8, and thenceforward the courthouse was
used as a seat of justice, and Canfield continued to be the county
seat of the county.
April 9, 1874, the General Assembly of the State of Ohio passed
the following act:
"An Act to provide for the removal of the seat of justice of
Mahoning County from the Town of Canfield to the City of Youngstown
in said county."
"SEC. 1. Be it enacted by the General Assembly of the State of
Ohio, that from and after taking effect of this section of this act
as hereafter provided, the seat of justice in the County of
Mahoning shall be removed from the Town of Canfield, and shall be
fixed, until otherwise provided by law, at the City of Youngstown,
in said county."
"SEC. 2. That the foregoing section of this act shall take
effect and be in force when and so soon as the same shall be
adopted by a majority of all the electors of said Mahoning County,
voting at the next general election after the passage thereof, and
when suitable buildings shall have been erected, as hereinafter
provided."
"SEC. 3. That the electors of said Mahoning County, at the next
general election after the passage of this act, shall endorse or
otherwise place on their tickets either the words 'for removal' or
'against removal,' and if a majority of all the electors of said
Mahoning County, voting at said election, shall vote for removal,
the first section of this act shall thereafter be considered and
holden to be adopted by such majority,
provided that all
tickets upon which the words 'for removal' shall not be endorsed or
otherwise placed shall be taken and considered as votes 'against
removal' as fully as though the words 'against removal' were
endorsed or otherwise placed thereon."
"SEC. 4. That judges and clerks of election in the several
townships, wards, and voting precincts in said county at the said
general election shall cause all votes that may be so given for or
against removal to be correctly counted, in doing which, all
tickets upon which the words 'for removal' are not endorsed or
otherwise placed shall be counted as votes 'against removal,' and
shall enter and certify in their respective poll books of said
general election the number of votes so counted for as well as
against such removal, which poll books shall be returned and opened
as required by the act regulating said general election and the
opening
Page 100 U. S. 551
of the returns thereof; and the officers opening the same shall,
at the same time they make, certify, and sign the abstracts
required by law, also make, certify, and sign a separate abstract
of all votes so returned for or against removal, showing the number
so given in each township, and the footings or aggregate number
given in all the townships, which abstract shall be forthwith
deposited in the clerk's office of said county, and be by him
forthwith recorded in the journal of the court of common pleas of
said county, which record, or a duly certified copy thereof, shall
be taken and received as evidence for all purposes as the result of
said election."
"SEC. 5. That in case a majority of the electors of said County
of Mahoning shall vote 'for removal,' as heretofore provided, the
seat of justice and county seat shall be deemed and taken to be
removed from Canfield in said county to the City of Youngstown in
said county, and to be located at said City of Youngstown,
provided however, that nothing in the act shall be so
construed as to authorize the removal of said seat of justice to
the City of Youngstown until the citizens of the City and Township
of Youngstown, and of sufficient size and suitably located to
accommodate the courthouse, jail, and necessary offices for said
county, and shall have erected thereon, or shall have caused to
have erected thereon, and completed thereon, suitable buildings for
courthouse, jail, and all offices and rooms necessary for the
transaction of all the public business of said county, at a cost
for said buildings of not less than $100,000, and to the
satisfaction and acceptance of the commissioners of said county,
and all such buildings shall be fully completed within two years
from the date of the election at which this act shall be ratified,
and said commissioner shall not, nor shall any other authority of
said county, levy any tax on the taxable property of said county
for said land or building,
provided that the citizens of
Youngstown may, within said two years, build said public buildings,
and tender the same to said county commissioners."
"SEC. 6. It shall be the duty of the sheriff or coroner, as the
case may be, to cause proclamation to be made to the qualified
electors of said county of the time of holding said election, in
the same manner as by law he is required to do in other elections,
notifying said electors to vote as aforesaid on the question by
which this act is submitted to them."
"SEC. 7. The sections of this act subsequent to the first
section shall take effect and be in force from and after their
passage. "
Page 100 U. S. 552
At the next general election a majority of votes cast in the
county was in favor of the removal.
Thereupon Newton, and a number of other citizens of the Town of
Canfield, filed their petition in the Court of Common Pleas for
Mahoning County praying for an injunction restraining the board of
county commissioners from removing the county seat to Youngstown.
The court denied the injunction and dismissed the petition. That
decision having been affirmed by the supreme court of the state,
the petitioners brought the case here.
Page 100 U. S. 556
MR. JUSTICE SWAYNE delivered the opinion of the Court.
It is claimed in behalf of the plaintiffs in error that the act
of the 16th of February, 1846, and what was done under it,
constituted an executed contract which is binding on the state; and
that the act of April 9, 1874, and the steps taken pursuant to its
provisions, impair the obligation of that contract, and bring the
case within the contract clause of the Constitution of the United
States. Art. I, sec. 10.
These allegations are the ground of our jurisdiction. They
present the only question argued before us, and our remarks will be
confined to that subject.
The case may be properly considered under two aspects:
Was it competent for the state to enter into such a contract as
is claimed to have been made?
And if such a contract were made, what is its meaning and
effect?
Undoubtedly there are cases in which a state may, as it were,
lay aside its sovereignty and contract like an individual,
Page 100 U. S. 557
and be bound accordingly.
Curran v. State of
Arkansas, 15 How. 304;
Davis v.
Gray, 16 Wall. 203.
The cases in which such contracts have been sustained and
enforced are very numerous. Many of them are cases in which the
question was presented whether a private act of incorporation, or
one or more of its clauses, is a contract within the meaning of the
Constitution of the United States. There is no such restraint upon
the British Parliament. Hence, the adjudications of that country
throw but little light upon the subject.
The
Dartmouth College Case was the pioneer in this
field of our jurisprudence.
The principle there laid down, and since maintained in the cases
which have followed and been controlled by it, has no application
where the statute in question is a
public law relating to
a
public subject within the domain of the general
legislative power of the state, and involving the
public
rights and
public welfare of the entire community
affected by it. The two classes of cases are separated by a broad
line of demarcation. The distinction was forced upon the attention
of the court by the argument in the
Dartmouth College
Case. Mr. Chief Justice Marshall said:
"That anterior to the formation of the Constitution, a course of
legislation had prevailed in many, if not in all, of the states,
which weakened the confidence of man in man, and embarrassed all
transactions between individuals, by dispensing with a faithful
performance of engagements. To correct this mischief by restraining
the power which produced it, the state legislatures were forbidden
'to pass any law impairing the obligation of contracts' -- that is,
of contracts respecting property, under which some individual could
claim a right to something beneficial to himself, and that since
the clause in the Constitution must, in construction, receive some
limitation, it may be confined, and ought to be confined, to cases
of this description -- to cases within the mischief it was intended
to remedy."
"The general correctness of these observations cannot be
controverted. That the framers of the Constitution did not intend
to restrain the states in the regulation of their civil
institutions, adopted for internal government, and that the
Page 100 U. S. 558
instrument they have given us is not to be so construed, may be
admitted. The provision of the Constitution never has been
understood to embrace other contracts than those which respect
property, or some object of value, and confer rights which may be
asserted in a court of justice. It never has been understood to
restrict the general right of the legislature to legislate on the
subject of divorces. . . . If the act of incorporation be a grant
of political power, if it create a civil institution to be employed
in the administration of the government, or if the funds of the
college be public property, or if the state of New Hampshire, as a
government, be alone interested in its transactions, the subject is
one in which the legislature of the state may act according to its
own judgment, unrestrained by any limitation of its power imposed
by the Constitution of the United States."
The judgment of the Court in that case proceeded upon the ground
that the college was
"a private eleemosynary institution, endowed with a capacity to
take property for purposes
unconnected with the
government, whose funds are bestowed by individuals on the
faith of the charter."
In the later case of
East Hartford v. The Hartford
Bridge Company, 10 How. 511, this Court further
said:
"But it is not found necessary for us to decide finally on this
first and most doubtful question, as our opinion is clearly in
favor of the defendant in error on the other question -- namely
that the parties to this grant did not by their charter stand in
the attitude towards each other of making a contract by it, such as
is contemplated in the Constitution, and so could not be modified
by subsequent legislation. The legislature was acting here on the
one part, and public municipal corporations on the other. They were
acting, too, in relation to a
public object, being
virtually a highway across the river, over another highway up and
down the river. From this standing and relation of these parties,
and from the
subject matter of their action, we think that
the doings of the legislature as to this ferry must be considered
rather as
public laws than as
contracts. They
related to public interests. They
changed as those
interests demanded. The grantees likewise, the towns being
mere organizations for
public purposes, were liable to
have their public powers, rights,
Page 100 U. S. 559
and duties
modified or
abolished at any moment
by the legislature. . . ."
"It is hardly possible to conceive the grounds on which a
different result could be vindicated, without destroying all
legislative sovereignty, and checking most legislative improvements
and amendments, as well as
supervision over its subordinate
public bodies."
The legislative power of a state, except so far as restrained by
its own constitution, is at all times absolute with respect to all
offices within its reach. It may at pleasure create or abolish
them, or modify their duties. It may also shorten or lengthen the
term of service. And it may increase or diminish the salary or
change the mode of compensation.
Butler v.
Pennsylvania, 10 How. 402.
The police power of the states, and that with respect to
municipal corporations, and to many other things that might be
named, are of the same absolute character. Cooley, Const.Lim., pp.
232, 342;
The Regents v. Williams, 4 Gill & J. (Md.)
321.
In all these cases, there can be no contract and no irrepealable
law, because they are "governmental subjects," and hence within the
category before stated.
They involve
public interests, and legislative acts
concerning them are necessarily
public laws. Every
succeeding legislature possesses the same jurisdiction and power
with respect to them as its predecessors. The latter have the same
power of repeal and modification which the former had of enactment,
neither more nor less. All occupy, in this respect, a footing of
perfect equality. This must necessarily be so in the nature of
things. It is vital to the public welfare that each one should be
able at all times to do whatever the varying circumstances and
present exigencies touching the subject involved may require. A
different result would be fraught with evil.
All these considerations apply with full force to the times and
places of holding courts. They are both purely public things, and
the laws concerning them must necessarily be of the same
character.
If one may be bargained about, so may the other. In this
respect, there is no difference in principle between them.
Page 100 U. S. 560
The same reasoning, pushed a step farther in the same direction,
would involve the same result with respect to the seat of
government of a state.
If a state capital were sought to be removed under the
circumstances of this case with respect to the county seat,
whatever the public exigencies, or the force of the public
sentiment which demanded it, those interested, as are the
plaintiffs in error, might, according to their argument,
effectually forbid and prevent it, and this result could be brought
about by means of a bill in equity and a perpetual injunction.
It is true a state cannot be sued without its consent, but this
would be a small obstacle in the way of the assertion of so potent
a right. Though the state cannot be sued, its officers, whose acts
were illegal and void, may be.
Osborn v. Bank of the United
States, 9 Wheat. 738;
Davis v.
Gray, 16 Wall. 203.
A proposition leading to such consequences must be unsound. The
parent and the offspring are alike.
Armstrong v. The
Commissioners, 4 Blackf. (Ind.) 208. was, in some of its
features, not unlike the case before us. The act declared that
"so soon as the public buildings are completed in the manner
aforesaid,
at the place designated, the same shall
be
forever thereafter the permanent seat of justice of said
county of Dearborn."
Certain private individuals there, as here, had stipulated to
build a courthouse, and their compliance was a condition precedent.
The condition had been performed. It was held that "the act did not
create a contract." The subject was fully considered. It was held
further, that a subsequent legislature might competently pass an
act for the removal of the county seat so established. In that
case, both had been done and both were sustained. The reasoning of
the court was substantially the same with ours touching the eighth
section of the act of 1846 here in question.
Elwell and Others
v. Tucker, 1
id. 285, was also a case arising out of
the removal of a county seat. The court said,
"the establishment of the time and place of holding courts is a
matter of general legislation, respecting which the act of
one session of the General Assembly cannot be binding on
another."
See also Adams v. The County of Logan, 11 Ill. 336, and
Bass v. Fanthroy, 11 Tex. 698. They are to the same
effect.
Page 100 U. S. 561
Secondly, but conceding, for the purposes of this opinion, that
there is here a contract, as claimed by the plaintiffs in error,
then the question arises what is the contract, or in other words to
what does it bind the state?
The rules of interpretation touching such contracts are well
settled in this Court. In
Tucker v.
Ferguson, 22 Wall. 527, we said:
"But the contract must be shown to exist. There is no
presumption in its favor. Every reasonable doubt should be resolved
against it. Where it exists, it is to be rigidly scrutinized, and
never permitted to extend either in scope or duration beyond what
the terms of the concession clearly require."
There must have been a deliberate intention clearly manifested
on the part of the state to grant what is claimed. Such a purpose
cannot be inferred from equivocal language.
Providence
Bank v. Billings, 4 Pet. 514;
Gilman v.
City of Sheboygan, 2 Black, 510.
It must not be a mere gratuity. There must be a sufficient
consideration, or, no matter how long the alleged right has been
enjoyed, it may be resumed by the state at its pleasure.
Christ Church v.
Philadelphia, 24 How. 300. No grant can be raised
by mere inference or presumption, and the right granted must be
clearly defined.
Charles River Bridge v. Warren
Bridge, 11 Pet. 420.
"The rule of construction in this class of cases is that it
shall be most strongly against the corporation. Every reasonable
doubt is to be resolved adversely. Nothing is to be taken as
conceded but what is given in unmistakable terms or by an
implication equally clear. The affirmative must be shown. Silence
is negation, and doubt is fatal to the claim. This doctrine is
vital to the public welfare. It is axiomatic in the jurisprudence
of this court."
Fertilizing Company v. Hyde Park, 97 U. S.
659.
The eighth section of the act of 1846 declares, "That before the
seat of justice shall be considered permanently established at the
Town of Canfield, the proprietors or citizens thereof shall" do
certain things, all of which, it is admitted, were done in due
time. This is the whole case of the plaintiffs in error. It will be
observed that there is nothing said about the county seat
remaining, or being
kept, at Canfield
forever or
for any
Page 100 U. S. 562
specified time, or "permanently." At most, the
stipulation is that it shall be
considered as permanently
established there when the conditions specified are fulfilled.
If the legislature had intended to assume an obligation that it
should be
kept there in perpetuity, it is to be presumed
it would have said so. We cannot -- certainly not in this case --
interpolate into the statute a thing so important which it does not
contain. The most that can be claimed to have been intended by the
state is that when the conditions prescribed were complied with,
the county seat should be then and thereupon "permanently
established" at the designated place. We are therefore to consider
what is the meaning of the phrase "permanently established."
Domicile is acquired by residence and the
animus manendi,
the intent to remain. A
permanent residence is acquired in
the same way. In neither case is the idea involved that a change of
domicile or of residence may not thereafter be made. But this in no
wise affects the preexisting legal status of the individual in
either case while it continues. So the county seat was permanently
established at Canfield when it was placed there with the
intention that it should remain there. This fact, thus
complete, was in no wise affected by the further fact that thirty
years later the state changed its mind and determined to remove,
and did remove, the same county seat to another locality. It
fulfilled at the outset the entire obligation it had assumed. It
did not stipulate to keep the county seat at Canfield perpetually,
and the plaintiffs in error have no right to complain that it was
not done. Keeping it there is another and a distinct thing, in
regard to which the eighth section of the act is wholly silent. In
Mead v.
Ballard, 7 Wall. 290, land was conveyed on the 9th
of August, 1848, "upon the express understanding and condition
"that a certain institution of learning then incorporated "shall be
permanently located on said land," between the date of the deed and
the same day in the succeeding year. The trustees passed a
resolution, within the year, locating the institution on the
premises, and at once contracted for the erection of the necessary
buildings. The buildings were completed, and the institution was in
full operation by November, 1849.
In the year 1857 the buildings were destroyed by fire and
Page 100 U. S. 563
were not rebuilt. A part of the land was sold by the grantee.
The heir of the grantor sued in ejectment to recover the premises.
This Court, speaking by MR. JUSTICE MILLER, said:
"It is clear to us . . . that when the trustees passed their
resolution locating the buildings on the land, with the intention
that it should be the permanent place of conducting the business of
the corporation, they had permanently located the institution,
within the true construction of the contract. Counsel for the
plaintiff attach to the word 'permanent' a meaning inconsistent
with the obvious intent of the parties -- that the condition was
one which might be fully performed within a year. Such a
construction is something more than a condition to locate. It is a
covenant to build and rebuild; a covenant against removal at any
time; a covenant to keep up an institution of learning on that land
for ever, or for a very indefinite time. This could not have been
the intention of the parties."
In
Harris v. Shaw, 13 Ill. 463, land was conveyed on
condition that the county seat should be "permanently located" upon
it. The location was made accordingly with that intent, but some
years later the county seat was removed. The grantor sued to
recover the land. The court said it was no part of the contract
that the county seat should remain for ever on the premises; that
the grantor must be presumed to have known that the legislature had
the power to remove it at pleasure, and that he must be held to
have had in view at least the probability of such a change when he
made the deed.
There is no point arising under either the former or the present
Constitution of Ohio which in our judgment requires any remark.
The results of the elaborate research of one of the counsel for
the defendants in error show that the phrase "permanently
established" is a formula in long and frequent use in Ohio, with
respect to county seats established otherwise than temporarily. Yet
it is believed this is the first instance in the juridical history
of the state in which such a claim as is here made has been set
up.
This practical interpretation of the meaning of the phrase,
though by no means conclusive, is entitled to grave and respectful
consideration.
Judgment affirmed.
