#### Ohio *ex rel.*The President and Trustees of the Ohio University *v.*John F. Oglevee, Auditor of State.

*1.*The act of March 21, 1881, appropriating money to repair the buildings of the Ohio University, is not within the operation of section 29, article 2, of the constitution, requiring the allowance, by two-thirds of the i members elected to each branch of the general assembly, of claims, the subject matter of which was not provided for by a pre-existing law.

'2. The fact that there was no existing fund in the treasury to which the sum so appropriated could be added, does not prevent the operation of the statute.

13. Funds in the state treasury, arising from taxes levied and collected for “ the expenses of the state,” may be subjected to the payment of such appropriation.

*2Mandamus.

On March 21, 1881, the general assembly passed the following act:

“ An act to appropriate money not otherwise appropriated, to repair the buildings of the Ohio University.

• u Section 1. *Be it enacted by the General Assembly of the ffoate of Ohio,*That the sum of twenty thousand dollars, from any money not otherwise appropriated, is hereby added to the fund now existing in the treasury of the state, for the purpose of repairing the buildings of the Ohio.University.

Section 2. The treasurer of state is hereby directed to pay, on the warrant of the auditor of state, to the treasurer of said university said sum of money in installments not exceeding five thousand dollars.

“ Section 3. This act shall take effect and be in force from and after its passage.”

Afterward, the auditor of state, upon demand duly made, refused to issue his warrant upon the treasury for the first installment of $5,000, claimed by relator to be due under this act, whereupon this proceeding was commenced to compel the issuing of such warrant.

The case is now submitted upon the pleadings and an agreed statement of facts.

*Welch & Welch*and *De Steigner <& Jewett,*for plaintiff:

The act was not in conflict with section 29, article 2, of the constitution. To sustain the objection to the act, for that it is in conflict with the constitution, it must appear that the appropriation is to *“*a claim, the subject matter of which had not been provided for by pre-existing law.”

This is not the case of a claim, in the sense in which the term is used in section 29, nor the case where the subject matter to which the appropriation went, had not been provided for by pre-existing law.

A claim is defined to be “ aright or title, actual or supposed, to a debt, or other thing in the possession of another.” This is an appropriation of money for the payment of repairs of buildings, to be made *in the fut/wre,*not to the payment of a *3claim *for repairs made in the past without authority of law.*The act questioned would sufficiently authorize the subjeet matter (the repairs) to which the appropriation goes (if it had not already been sufficiently provided for before, as will appear from the legislation hereinafter set out). For it is certainly competent in the same act to provide for any subject matter giving rise to a claim in the future and for its payment.

The state and the corporation cannot be viewed as two distinct persons, and, as such, dealing in regal’d to the subject matter to which the appropriation is directed, and giving rise to a claim; on the contrary, the corporation is the instrumentality of the state,.created by it to act for it, in regard to a public and governmental trust; and the acts of the corporation are the acts of the state. In fact the state has jealously provided for, claimed and exercised a supervising control of the corporation at all times.

The “ subject matter ” to which the appropriation went, was to, and in aid of an educational trust arising out of a donation by the United States government, which trust was assumed by the legislature, almost coeval with the first existence of the state, the sacred obligation of which on the state it has recognized in both of its constitutions, and in regard to which it has constantly exercised controlling and supervising power.

As *to the second objection to the issuing of the wa/rrant.*That the taxes were not levied for the purpose to which the $20,000 was appropriated. The law of 1879 (76 O. L. 42), under which the money in the state treasury was levied, is as follows:

. Section 1. “ That there shall be levied anually, taxes for state purposes, on each dollar of valuation of taxable property, as follows.

“ For general purposes, being the expenses of the state, the benevolent, *charitable,*penal, and reformatory institutions, *for the payment of such other charges as maybe made by law,*and for reimbursing to the sinking fund, such sums as have been transferred from that fund one mill and one tenth of one mill, the same to be styled the ‘revenue fund.’

“For the payment of interest, and the constitutional reduc*4tion of the principal of the public funded debt of the state, five tenths of one mill. Said fund to be styled the sinking fund.

“Eor the support of the common schools, one mill. ^ Said fund to be styled the state common school fund.”

We claim that either of the clauses—“ charitable institutions,’5 or, “ for the payment of such other charges as may be made by law,”—was a sufficient statement of the object of the taxation to authorize the application of the $20,000 from the general revenue fund to the repair of the building of the Ohio University.

1. The law of March 21, 1881, both *authorizes*the repairs of the buildings, and so constitutes them “ *charges made by law”*and appropriates the money for their payment, and it is not contended, or if so, cannot be successfully contended that they would not constitute a public and governmental purpose, to which to appropriate a fund raised by taxation in view of the relation existing between the state and the university, and the various provisions of the constitution and state legislature 'touching the university.

As to the third objection, is the act void .for uncertainty ? If the act is valid, but for uncertainty, it would require a very strong case indeed to demand that the court hold the law void for that reason. It must be such an uncertainty that the court, in view of the language of the law, and all- acts *inpa/ri*materia, and surrounding facts, would be unable to gather its meaning.

The intent is manifest, to give $20,000 to the' university for building and repairs.

The punctuation may be disregarded. Whether there was something already in the treasury to which the $20,000 might be added is immaterial. *But*there *was*a fund already in the treasury.

McIlvaine, J.

The first ground of objection to a peremptory writ of mandamus is, that the statute in question, not having been passed by the vote of two thuds of the members elected to each branch of the general assembly, is in contravention of section 29, article 2, of the constitution. The pro*5vision, of the constitution is a follows : “No extra compensation shall be made to any officer, public agent, or contractor, after the service shall have been rendered,_ or the contract entered into ; nor shall any money be paid on any claim, the subject matter of which shall not have been provided for by pre-existing law, unless such compensation or claim be allowed by two thirds of the members elected to each branch of the general assembly.” The contention on the part of the defendant is, that the statute is in violation of the second clause of the above provision.

• The money intended to be appropriated by the act was not in payment of any claim against the state within the meaning of this provision. In the judgment of the general assembly this enactment was passed in the discharge of the duty imposed upon it by section 7 of article 1 of the constitution ; namely, to pass suitable laws to encourage schools and the means of instruction. The Ohio University, an institution of learning, had no claim, in the nature of a debt, against the state, for which payment was demanded; but, being without means to make necessary repairs upon the buildings of the University, she solicted aid from the state, which the general assembly granted, not by way of paying a claim, but as giving generous aid to a needy and worthy institution of learning. There is no constitutional objection to the statute. See *Ohio*ex rel. v. Oglevee, emte, where the the same principle was applied to sustain an appropriation in favor of Longview'Asylum.

2. That there did not exist in the state treasury, at the date of said act, or now, a fund to which the said appropriated sum of $20,000 could or can be added, except an irreducible fund, the interest of which is payable annually to the university. This objection does not interfere with the reasonable and proper execution of the statute. If the general assembly was mistaken concerning the state of the funds in the treasury, the intention to appropriate the sum named in the statute and for the purpose named, is nevertheless clear. The intention was not to create or to increase an irreducible fund in the treasury, the interest of which alone should be paid to the University, but to donate the sum of $20,000 *in ggroesenU,*for the purpose of' making repairs now needed on the buildings of the university ; *6and it would be unreasonable to hold that the institution should lose the proffered bounty, because, unfortunately, it did not possess other means to which this might be added.

3. The third objection is, that there are no moneys in the treasury subject to an appropriation for the purpose named in the act. It is not said or meant that there are no funds in the treasury not otherwise appropriated, but, that, under section 5 of article 12 of the constitution, which provides that “no tax shall bo levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied,” no money in the treasury, though not otherwise appropriated, can be applied to this purpose, for the reason that no tax has been levied or collected for such purpose.

Unappropriated moneys were in the treasury, levied and collected under the act of March 26, 1879 (76 Ohio L. 42), which provides:

> “ That there shall be levied annually, taxes for state purposes, on each dollar of valuation of taxable property, as follows:

> “ For general revenue purposes, being the expenses of the state, the benevolent, charitable, penal and reformatory institutions, for the payment of such other charges as may be made by law, and for reimbursing the sinking fund such sums as have been transferred from that fund, one mill and four tenths of one mill, the samé to be styled the £ revenue fund.’ ”

Now, it is contended that, under the constitutional provision above quoted, none of the funds raised under the above statute can be applied to the payment of relator’s demand. If it were conceded that the phrase “for the payment of such other charges as may be made by law',” is too indefinite to have operation under the provision of the constitution above quoted, and that the “ benevolent and charitable ” institutions referred to ir. the statute are such only as are owned by the state, still we think that taxes levied and collected for “ the expenses of the state,” may be appropriated by the legislature for the purposes named in the act under which relators claim. The object expressed by the words “ the expenses of the state,” are sufficiently definite, and except as limited by other clauses in *7the act, -would embrace the whole “ revenue fund,” and a gratuity, which the state may properly bestow, is, reasonably and literally, an expense of the state, and within the object of taxation so designated.

4. The last objection is, that the statute in question does not make an appropriation of money in the state treasury from which a payment would be authorized. Although very loosely drawn, we think there can be no doubt but that the legislature intended to set apart and appropriate, of the moneys in the treasury and not otherwise appropriated, the sum of $20,000 to be paid to the Ohio University for the purpose of making repairs of the buildings of the university.

*Peremptory writ cmwrded.*