ARMORY FOR NATIONAL GUARD.

[Franklin Circuit Court,

September Term, 1894.]

Stewart, Shauck and Shearer, JJ.

#### * David E. Daniel v. Columbus (City) et al.

Law for Columbus is Invalid.

The act passed April 27, 1893, entitled “An act to provide for the erection of an armory and market building in cities of the first grade of the second class,” is void, because:

1. It provides, for taking the property of the city of Columbus without compensation.

2. The erection of an armory for the use of the national guard is a general purpose of the state, which cannot be made the subject of a local imposition.

On Appeal from the Court of Common Pleas of Franklin county.

The facts alleged in the petition, and admitted in the answer, are, that the plaintiff is a resident and taxpayer in the city of Columbus; that said city is a. city of the first grade and second class, and the other defendants are the members-of the board of public works of said city, the commissioners of Franklin county, the auditor of- said county, and the members of the "armory and market building commission in said city.” The plaintiff requested the director of the department of law of said city, and the prosecuting attorney of the county, to bring this action, and that request was refused by both of said officers.

On November 26, 1847, one Thomas Asbury, for a valuable considerationv conveyed to said city a rectangular piece of land, 62£ feet wide and 410 feet long, lying in the central portion of said city, the grant being "for a market space forever, and for no other purpose,” habendum being:

“To have and to bold said premises, with tbe appurtenances, unto tbe city of Columbus, for a market house forever, and for no other purpose, except what may be done over the market house. And it is hereby expressly stipulated that should the said city ever abandon said premises as for a market space, or any part thereof, then said premises or such part thereof shall revert to said Asbury, his heirs or assigns, etc.”

On acquiring said property, said city built thereon a market house, and there is now thereon a market house 40 feet in width and 410 feet in length.

On April 27, 1898, the general assembly passed an act entitled "An act to provide for the erection of an armory and market building in cities of the first grade of the second class, and to repeal an act therein named.” Its provisions are in substance as follows:

Section 1. “The *mayor*of *cities*of the first grade "of the second class, and the commissioners of the county containing such city, shall appoint a commission of five members to be known as the “armory and market building commission,” three to be appointed by the county commissioners and two by the major.

SEC. 2. Provides for the qualification of the members of the commission, aud authorizes them “to appoint a clerk, architect, superintendent and other necessary employees, and fix their compensation, which shall be paid out of funds in the county treasurj-, to the credit of said commission, on the warrant of the county auditor.” The other sections *of*the act are as follows:__

*294“Sec. 3. Said commission shall erect and furnish, within such city of the first grade of the second class, an armory and market building, such portion of the first story of which, as the commission shall set apart and designate, shall be used exclusively for market purposes, and the remainder of such building shall be maintained under the control and direction of such commission, for the free use of the resident Ohio national guard, local posts of the grand army of the Republic, and other organizations composed of the surviving soldiers and sailors of the war of the rebellion in such county, and other public assemblies.

“ SEC. 4. Any existing market space or place in such cities may be selected and utilized by such commission as a site for such building, and in case it be found necessary to remove any existing building or buildings that may be found upon such market space, such commission may receive competitive bids for the purchase and removal of the same, under such conditions and regulations as the commission may prescribe, and the proceeds arising from such sale shall be deposited in the county treasury to the credit of such commission.

“ SEC. 5. If, in the opinion of the commission, the market space so selected for such site is insufficient in area for the purpose of such building, it shall have authority to purchase or to appropriate such adjacent lots and lands as it may deem necessary for such purpose, by a proceeding instituted in the name of such commission, which, for the purposes of such proceeding, shall be deemed and considered a corporation .against the owner of such lots and lands, in the probate court of such county, and such proceeding and the appropriation of such property shall be governed by the provisions contained in Chapter VIII, of Title II, of Part III, Rev. Stat., but ho such lots or lands shall be taken until the owner thereof has first been compensated therefor in money. And the title to the property so purchased or appropriated shall ever be held in trust by said commission for the uses and purposes of such armory and market building.

“ Sec. 6. The portion of the first story of such building which may be set aside and designated for market purposes, as hereinbefore provided, shall always be used for market purposes, and shall be under the control and direction of the authorities of such cities of the first grade of the second class, having charge of the markets and market spaces thereof.

“ Sec. 7. “In the letting of the contract or contracts for the construction of such building, including the materials and labor therefor, said commission shall be governed by the provisions of the statutes relating to the construction of public buildings, and especially the provisions contained in Chapter I, of Title VII, or ] of] Part 1, Rev. Stat., and the acts amendatory of and supplementary thereto.

“ SEC. 8. The plans of such building shall be such as to provide for a drill room, so arranged as to serve also as an assembly hall for conventions and public assemblies, and other rooms requisite for the accommodation of the national guard, and for the safekeeping of the arms, equipments, uniforms and other military property furnished by the state, and rooms in which to preserve relics and mementoes of war, and for the use of the Grand Army posts and other organizations of ex-soldiers and sailors, and may contain additional rooms for rental purposes, under control of said cqmmission for the purpose of providing revenue to meet the expense of maintaining such building; provided, however, that such plans shall be subject to the approval of the inspector of armories, whose appointment is provided for in sec. 3085, Rev. Stat.

“ Sec. 9. For the purpose of raising money to defray the cost and expense of purchasing or appropriating such lots and lands and constructing and furnishing such building, the commissioners of such county shall issue and sell, according to law, the bonds of such county, amounting, in the aggregate, to the sum of seventy-five thousand dollars; and the board of public works of cities of the first grade of the second class shall issue and sell, according to law, the bonds of such cities, amounting, in the aggregate, to the sum of thirty-seven thousand and five hundred dollars; and the moneys arising from such sales of bonds shall be deposited in the tre'asury of such county to the credit of such “ armory and market building commission ” for the uses and purposes contemplated by this act.

“ Sec. 10. In the issuance, sale and redemption of such bonds, the county commissioners shall be governed by the provisions of secs. 871, 872, 873, 874 and 875, Rev. Stat., except such bonds may be made to run for such length of time as such commissioners may deem proper, not exceeding fifteen years. Such bonds issued by the board of public works of such cities of the first grade of the second class shall be payable in. not more than fifteen years, bear interest at a rate of not more than five per cent, payable semi-annually, and shall be signed by the mayor and the director of accounts or auditor, and have the corporation seal affixed thereto. In no case shall such city bonds be sold for less than their par value, and shall" be sold to the highest and best bidder, after thirty days’ notice in at least two newspapers of general circulation in the county in which such cities may be situated, stating the rate of interest and length of time-the bonds have to run, with time and place of sale; and additional notice may be published outside of such county. To pay the principal and interest on such bonds, the councils of such cities shall, annually, levy upon all the taxable property of such cities, a tax sufficient in rate and amount to pay the interest and provide a sinking fund to pay such bonds at maturity, and such tax may be additional in rate and amount to all other taxes authorized to be levied by such cities for any and all other purposes.

“SEC. 11. That.the act passed March 21, 1887, entitled ‘ An act to provide for the erection of a memorial armory building in the county of Franklin, and to create a fund to pay for and maintain the same be and the same is hereby repealed.”

*295With a view to carrying out the provisions of said act the board of public works are about to sell bonds of the city, and the commissioners to sell bonds of the county, and the members of the armory and market commission are about to take possession of said market space, to remove the market house therefrom, and to erect in its stead a building a portion of which is designed for a state armory for the accommodation of the infantry, cavalry and artillery of the militia ol the state.

The prayer of the petition is that the defendants be enjoined from the performance of these acts.

The case is submitted on demurrer to the answer and the amendments thereto.

*

 The judgment in this case was affirmed by the Supreme Court in 53 O. S., 658, on the opinion of the Circuit court, and is cited with approval by the Supreme Court in Hubbard v. Fitzsimmons, 57 O. S., 436, 449.

Shatjck, J.

Although this act has been carefully scrutinized by able counsel and patiently examined by us, some reasons for adjudging that it is repugnant to the constitution may have escaped notice.

Prominent among the purposes to be accomplished under this act is the construction of a drill room and armory for the use of the national guard of the state, the third section providing that:,

> “ Such portion of the first story as the commission shall set apart and designate, shall be used exclusively for market, purposes, and the remainder of such building shall be maintained under the control and direction of such commission for the free use of the resident Ohio national guard, etc.”

This building, according to the provisions of the fourth section, is to be erected upon the lands acquired by the city for market purposes, and its erection is to be preceded by the removal of the present market house, which the city has erected upon the premises so acquired. The act does not contemplate the consent of the inhabitants of Columbus to this diversion of their oroperty, nor that compensation shall be made therefor.

It is true that the legislature is vested with authority to determine to what extent and for what purposes municipalities may acquire and hold property. But this does not imply legislative authority to seize the property which they have lawfully acquired. Looking to the substance of things, the property which a municipality acquires and holds for purposes of this character is the property of all its inhabitants. The constitutional provisions protect alike the property of municipalities, private corporations and natural persons. *People*v. *The Comrs.,*28 Mich., 240; *State v.*Haben, 22 Wis., 660.

We do not attempt to answer the argument of counsel for the defendants that property held for a public use may be appropriated to another consistent use. What they have undertaken to defend in this case is not an act of appropriation, but an act of spoliation.

Another purpose manifested by the clear provisions of the act is to charge upon the taxpayers of Columbus and Franklin county, the cost of erection of the proposed building, which shall be adapted to and used for a drill-room for the national guard of the state and for the preservation of their arms. The general assembly might well conclude that such a building is essential to the efficiency of-the militia of the state. The duty of providing for the organization and maintenance of the militia is charged upon the state authorities by the provisions of section ten of article three, and sections three and five of article nine of the constitution. But the expenses incident to the performance of a duty of this general character cannot be made the subject of a local imposition. This conclusion was reached and well sustained in *State*v. Brinkman, 3 Ohio Circ. Dec., 710. The purpose to be accomplished by this expenditure is common to the state at large, and the taxes by which it is to be met, must, in obedience to the requirements of section two of article twelve of the constitution, be levied by a uniform rule upon all the taxable property within the state. *Wasson*v. *Comrs.,*49 O. S. 622.

*296*PaulJoties*and *Booth & Keating,*for plaintiffs.

*R. A. Harrison, George S. Peters*and *George B. Okey, contra.*

No conclusion which we might reach upon other questions presented would avail the defendants. It should not be inferred that we hold that section seven of article ten of the constitution permits the granting of the power of local taxation for a purpose of this character, or that the act would not violate the conditions upon which the market space was conveyed to the city, or that the provisions of the fifth section of the act, making the armory commission a body corporate for the purpose of appropriating additional ground, is not repugnant to section one of article thirteen of the constitution.

The demurrer to the answer is sustained, and, the defendants not desiring to plead further, a perpetual injunction is granted as prayed for.