#### The Alma Coal Company *v.*Cozad, Treasurer.

*Imposition upon private property*— Against *owner for benefit of another*— Prohibited *by constitution*— Act *of April 18, 1904, construed.*

1. The provisions of the constitution forbid not only the taking of the private property of one, but as well the laying of an imposition upon it, for the sole benefit of another.

2. The act of April 18, 1904 (97 O. L., 138), may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a- line fence for the sole benefit of the adjoining proprietor.

(No. 11221

Decided February 2, 1909.)

Error to the Circuit Court of Vinton county.

The coal company filed its petition in the court of common pleas alleging in substance, that it is the owner of a tract of land in Vinton towiiship, Vinton county, Ohio, and that one W. H. Allen is the owner of an adjoining tract; that in the year 1906 said Allen being desirous of having his his lands enclosed, filed his application with the' trustees of the township asking them to view the line dividing his lands from those of the plaintiff and assign to each the share of a partition fence to be constructed and maintained by him. That the trustees complied with that request and ordered Allen to build one-half of said fence and the plaintiff to build the other half; that the plaintiff refused to comply with that order, and that' thereupon the portion so allotted to it was caused to be built and the expense thereof certified to the auditor of the county to be charged *349upon the tax duplicate against the lands of the plaintiff, and that the defendant, the treasurer, said charge having been made, now threatens to collect the same as a lien upon said lands. Plaintiff further alleges that its lands and all of them are wild, uncultivated and unfenced, and that it has no desire or intention to improve, fence or cultivate any portion thereof, and that said fence is of no value or benefit to it whatever. It alleges that there is no authority whatever for said imposition upon its lands, or upon it, and prays that the defendant be enjoined from the collection thereof. To this petition a demurrer was sustained in the court of common pleas and the petition dismissed. In the circuit court the judgment of the court of common pleas was affirmed.

*Mr. J. M. McGillivrciy,*for plaintiff in error.

The statutes, if they are to be construed as authorizing that which is here complained of, are unconstitutional for the following reasons:

a. They are in contravention of Section 19 of Article I, Constitution of Ohio, in that they take from plaintiff its private property, without consent and for a private use.

b. They are in contravention of Section 16 of said Article I, Constitution of Ohio, and of Article V of the amendments to the Constitution of the United States, in that they deprive plaintiff of property without due process of law, and prevents it having a remedy at law for an injury done.

That the money required in this case to pay the assessment is private property will not be questioned, and, if it be found to be taken for a private *350use it will doubtless be conceded as falling within the inhibition of Section 19, Article I, Constitution of Ohio. *Railroad Co.*v. *Keith et al., 67*Ohio St., 279.

The use of the money involved in this action, as appears from the petition, was for the construction of a fence on the line between Allen and the plaintiff, although it is not set forth whether it operates to help make an enclosure for Allen or not.

From the standpoint that it does make an enclosure for Allen, then our money is taken to build a fence for Allen’s benefit; without our consent and without any benefit accruing to us.

In *Shaver*v. *Starrett,*4 Ohio St., 599, the constitutionality of the law in relation to township roads was under consideration, and the language of Thurman, C. J., the eminent jurist writing the opinion, sounds a warning against legislation of that character assailed in this action.

In *Reeves*v. Treasurer, 8 Ohio St., 345, the court merely held that the drainage of lands, on the application of a single person, with no provision as to public interest, convenience or welfare, was a private matter and that private property could not be taken in its location and construction, even though it be based upon the idea that the taking was compensated by benefits derived from the ditch.

The act of April 30, 1869, which provided by Section 4 that if the. probate judge was satisfied that said levee or embankment is necessary for the protection of any such lands, or the welfare of such citizens, or any of them, he should ap*351point viewers and proceed as provided in the location and construction of said levee, was held to be unconstitutional, for the reason that “the public welfare is not within the purview of the act, either in express terms, or by implication.” *Smith*v. *Railroad Co.,*25 Ohio St., 91.

The prosperity of each individual conduces, in a certain sense to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men. *McQuillen*v. *Hatton,*42 Ohio St., 204.

Police power has been defined many times. *State, ex rel.,*v. *Wegener,*77 Minn., 483; 8 Cyc., 863; *Lake View*v. *Cemetery Co.,*70 Ill., 191; Black on Constitutional Law, (2 ed.), 334.

*Mr. James W. Darby,*prosecuting attorney, for defendant in error.

A true conception of the difference between the right of eminent domain, and the police power of the state leads to the solution of the legal problem involved in this action. Cooley on Constitutional Limitations (5 ed.), 649, 706; *Commonwealth*v. *Alger, 7*Cush., 53; *Pollard’s Lessee*v. *Hagan,*3 How., 212.

From these definitions it appears, that the property to be appropriated, under the right of eminent domain must be tangible corporeal property, something that can be taken for the use of the public; taxes, assessments, damages, etc., are not such property. Cooley on Constitutional Limitations (5 ed.), 671.

In this action as disclosed by the petition of the plaintiff there was no tangible corporeal property *352taken — not a foot of land nor an atom of personalty; it follows then, in the light of the foregoing definitions and decisions, and cases cited, that .it was not a case for the exercise of the right of eminent domain and therefore Section 19, Article I, Constitution of Ohio and Article V of the amendments to the Constitution of the United States do not apply.

In the case of *Nichols*v. *Turner et al.,*10 C. C., N. S., 509, the court construes this partition fence law and holds it constitutional, and says on page 511, “Further the repeal of Section 4241, taking away the power of either party to remove his part of the fence is important as tending to show, that enclosure or non-enclosure should thereafter not have any effect and that thereafter there should be no 'devil’s lanes.’ ”

This partition fence law does deal more with the landowner than with the lands, and that makes the law a police regulation. J?he doing away with the “devil’s lapes,” which has always been a very fruitful source of litigation, neighborhood quarrels and controversies, as well as an unsightly monument attesting bad blood and ill-will of the adjoining landowners to the shame and disgrace of the community, is a sufficient reason for enacting and enforcing this partition fence law as a wholesome police regulation. It distinctly falls within the definition of police power,_ which is very broad in its scope.

It was once the policy in Ohio for domestic animals to run at large; fences then were to protect crops against stock rightfully running at large; but with the ever increasing population of *353the commonwealth, conditions have changed, and now the stock must be kept up, and with this changed policy necessarily comes the right to regulate as a police power, the fencing of lands and especially the fence between adjoining landowners, that the rights and obligations of each may be defined and limited and the peace, good order, and tranquillity of the neighborhood may be preserved.

Siíauck, J.

Statutes regulating the construction and maintenance of. fences between the lands of adjoining proprietors when used by both for the purpose of enclosing their lands, have long been in'operation in this state, and their provisions and effect have become quite familiar. But the judgment below in the present case implies the Ariew, that by the act of April 18, 1904, (97 O. L., 138) the general assembly has thought itself empowered to enact that one must submit to an imposition for the construction of his neighbor’s fence, even though his own lands are not otherwise enclosed and he makes no use whatever of the fence to whose construction he is required to contribute, and has no intention whatever of making such use thereof, and that by the act referred to the general assembly has exercised that authority. Some doubt as' to the intention of the legislature will survive a careful analysis of the statute. The first section, as amended by Ihe act referred to, being Section 4239, Revised Statutes, provides, “That the owners of adjoining lands shall build, keep up and maintain in good repair all partition fences between them in equal shares, unless otherwise agreed upon be*354tween them, which agreement must be in writing and. witnessed by two persons * * Section 4242 provides that, “If any party neglects to build or repair a partition fence, or the portion thereof which he ought to build, or maintain, the aggrieved party may complain to the township trustees,” etc. Section 4243 provides that if he fails upon notice, to construct said portion, the trustees shall, upon the application of the aggrieved party, sell the contract to the lowest responsible bidder to furnish the labor and material and build such fence according to. the specifications to be proposed by the trustees, after advertising the same, etc. There are other provisions for reporting to the county auditor the cost of the proceeding', and the cost of the erection of the designated portion of the fence, for the record thereof, etc., and an express provision that they shall be collected as other taxes are collected. The act contains no definition of a partition fence which Avould necessarily include a fence constructed and maintained by one proprietor for his sole use and not used by the other in the enclosure of his lands. It would naturally be expected that an intention to inaugurate so radical a departure from previous legislative policies and so manifest a disregard of the commonly accepted views as to the rights of landowners, would be indicated by the use of language of an unequivocal character. The statute of the state had long applied by appropriate terms to a partition fence “dividing the enclosures of two or more persons.” But some purpose must have prompted the amendment of the statute now under consideration, and no conjecture as to that purpose seems more probable than that made by the *355courts below. No other explanation of the amendment occurs to us or is suggested by counsel. But whatever the intention in fact of the general assembly, as indicated by the terms of the act, may have been with respect to this question, constitutional considerations seem to forbid the interpretation of the act which is implied in the proceedings of the township trustees and in the judgment under review. The powers of the imagination will be exhausted in vain to find a member of society who will be benefited by the imposition which is sought to be made upon the plaintiff, except Allen, the adjoining proprietor who desires to enclose his land. In pursuing inquiries of this character we need not be seriously concerned about forms if we correctly comprehend the substance of things. In the contemplation of the Bill of Rights, a legislative act to transfer title to a portion of the plaintiff’s lands- to its neighbor by compulsion, and without consideration, would not differ from one to assess its lands to an equivalent extent for his exclusive benefit. It would be neither more reprehensible npr less availing.

Upon this aspect of the case two propositions a.re urged in support of the judgment below. It •is said that the act construed as it was in the circuit court, is not an exercise of the right of eminent domain, but only the exercise of the power of levying a tax or assessment, and that these are essentially different powers. That differences between them exist is obvious, and that they are sometimes important is true, but that they are of no importance whatever in the present inquiry is made clear by three propositions which *356are elementary in constitutional law. In the exercise of the right of eminent domain, property can be taken for a public use only. A special assessment can be made only in consideration of a special benefit conferred upon the owner of the property assessed or upon the property itself. The power to levy a general tax may be exercised only for the carrying out of governmental purposes which constitute the only function of the state. Enough upon this subject has been said in *Reeves*v. *The Treasurer of Wood County et al.,*8 Ohio St., 333, and *Railroad Co.*v. *Keith et al., 67*Ohio St., 290.

In support of the judgment below we have the definite proposition that the act, as there construed, is a legitimate exercise of the police power which is confessedly within the constitutional grant of legislative power to the general assembly. Again the vain longing for conceptual definition of the police power is intensified. Counsel are obviously embarrassed by the realization that to the valid exercise of this power it is indispensable that every invasion of a private right must be vindicated by a consideration of the public weal. To meet that requirement, it is suggested that the purpose of the amended legislation is to prevent the occurrance of “devil’s lanes,” which are supposed to provoke neighborhood animosities, and in which live stock, especially horned cattle, are liable to be restrained and injured. Such lanes, instead of being provocative of neighborhood animosities, are indicative of such animosities already in a very high state of development. It v/ill be quite apparent that this conjecture falls far short of helpful suggestion when it is real*357ized that such a lane can not possibly occur when the lands of one of the adjoining proprietors remain wholly without fence.

We do not follow counsel in the present case”, nor the circuit court, in a case cited, in a consideration of the extent of the lands within the state whose owners might be subjected to a like imposition under like circumstances in the view taken of this statute in the courts below. The larger it might appear to be, the more effectively it would divert attention from the really important aspect of the. case. In the opinion of those who framed and adopted our constitutions, and in accordance with the observation and experience of those who have happily enjoyed their protection, private rights in property are subject only to the limit of the public use or the public benefit. In determining the limits of the rights so vested and secured, surveyors’ instruments can not be profitably employed. The record informs us that the plaintiff in the orderly mode appointed seeks relief from a forbidden imposition. Further information is unnecessary. The experiences of courts which have departed from principles of obvious soundness, because the particular cases in which such departures were permitted were not otherwise important, have not been so happy as to invite repetition.

The judgments of the circuit court and common pleas court will be reversed and the demurrer to the petition will be overruled.

*Judgment reversed.*

Crew, C. J., Summers, Spear, Davis and Price, JJ., concur.