As

what stipulations and conditions its contracts shall contain, although such contracts may, as in this case, relate only to matters of purely local improvement. This is a misapprehension of the legislative authority, for no such right or power has been delegated to, or is possessed by, the general assembly. said in Taylor v. Porter, 4 Hill, 144: "Under our system of government the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government, it can only exercise such powers as have been delegated to it; and when it steps beyond that boundary its acts, like those of the most humble magistrate in the state who transcends his jurisdiction, are utterly void. Therefore, as the security of life, liberty, and property lay at the foundation of the social compact, to say that the grant of legislative power includes the right to attack private property would be equivalent to saying that the people had delegated to their servants the power of defeating one of the great ends for which government was established; this end being the protection of the absolute right to life, liberty, and property.". Again, counsel for plaintiff in error are mistaken in the assumption that the statute here under consideration is, and should be regarded as, a mere direction by the sovereign authority, the state of Ohio, to one of its agents, the city of Cleveland, that contracts made by said city in certain cases and for a certain character of work, are to be made in a particular way. In the case of People v. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605, a statute distinguishable in no essential feature from the statute here under consideration was before the court of appeals of that state for review, its constitutionality having been challenged. O'Brien, J., in that case, in discussing the proposition we are now considering, speaking for the majority of the court, says: "Nor is it entirely true that the statute is a mere direction by the sovereign authority to one of its own agencies to contract in certain cases in a particular way. It is all that, no doubt, and very much more, since it affects personal and municipal rights in many directions that are of vastly more importance than the mere form of a contract to perform municipal work. It is true enough that a city is an agency of the state to discharge some of the functions of government, but these terms do not adequately describe its true relation to the state or the people. A municipal officer directing a local improvement is not the agent of the state. He is the agent of the city, and the city alone is responsible for his negligence or misconduct. If the authorities in charge of the streets of a city are agents of the state, the city ought not to be held liable for their acts or omissions. * * * The city is a corporation possessing all the powers of corporations generally, and cannot be deprived of its property

without its consent or due process of law any more than a private corporation can; and, since its revenues must be used for municipal purposes, it is difficult to see how the legislature can make contracts for it which involve the expenditure of these revenues without its consent." And further in the same opinion it is said: "The right which is conceded to every private individual and every private corporation in the state to make their own contracts and their own bargains is (by this statute) denied to cities and to contractors for city work; and, moreover, if the latter attempt to assert such right, the money earned on the contract is declared forfeited to the city without the intervention of any legal process or judicial decree. * The contractor is a private individual, engaged in private business. When he enters into a fair and honest contract for some municipal improvement, that contract is property entitled to the same protection as any other property. It is not competent for the legislature to deprive him of the benefit of this contract by imposing burdensome conditions with respect to the means of performance, or to regulate the rate of wages which he shall pay to his workmen, or to withhold the contract price when such conditions are not complied with in the judgment of the city. When he is not left free to select his own workmen upon such terms as he and they can fairly agree upon, he is deprived of that liberty of action and right to accumulate property embraced within the guaranties of the constitution, since his right to the free use of all his faculties in the pursuit of an honest vocation is so far abridged. * * * The exercise of such a power is inconsistent with the principles of civil liberty, the preservation and enforcement of which was the main purpose in view when the constitution was enacted. If the legislature has power to deprive cities and their contractors of the right to agree with their workmen upon rates of compensation (or the number of hours that shall constitute a day's labor), why has it not the same power with respect to all private persons and private corporations? That question can be answered in the language which this court used when a case with features somewhat similar was under consideration: 'Such legislation may invade one class of rights to-day and another to-morrow, and, if it can be sanctioned under the constitution, while far removed in time, we will not be far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed, and the reaping of grain, and governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since in all civilized lands regarded as outside of governmental functions.'"' As suggested by counsel for defendant in error, the statute here under con

sideration absolutely ignores the fact that municipal corporations in their property rights, and their power to make contracts for local improvements for the benefit of their own citizens, are entitled to the same immunities and are protected by the same constitutional guaranties which shield the property of individuals or private corporations from legislative aggression. In considering the rights and powers of municipal corporations in the case of New Orleans, M. & C. R. Co. v. City of New Orleans, 26 La. Ann. 481, the supreme court of Louisiana says: "A municipal corporation possesses two classes of powers and two classes of rights,-public and private. In all that relates to one class, it is merely the agent of the state, and subject to its control. In the other it is the agent of the inhabitants of the place, the corporators; maintains the character and relations of individuals, and is not subject to we absolute control of the legislature, its creator."

In the case of Atkins v. Town of Randolph, 31 Vt. 237, Judge Barrett, announcing the opinion of the supreme court of Vermont, states the proposition as follows: "It is true, as was urged in argument by the learned counsel for plaintiffs, that in some respects legislatures have power in respect to municipal corporations that they have not in respect to private corporations, or individuals. They may alter or abolish municipal corporations at pleasure, but yet not so as to defeat the pecuniary rights of individuals as against such corporations, or as depending upon their existence. The legislature has the same power in respect to private corporations when that power is reserved in the law creating them. So far as a municipal corporation is endowed by law with the power of contracting, and, as such, is made capable of acquiring, holding, and disposing of property, and subject to the liabilities incident to the exercise of such power and capacity, thus being vested with legal rights as to property in contracts and improvements, and subject to legal liabilities in respect thereof, to be ascertained and enforced by suit in the ordinary judicial forums, with the same principles and by the same means as in the case of a private corporation, such municipal corporation must stand on the same ground of exemptions from legislative control and interference as a private corporation. As to third persons who seek to enforce pecuniary liabilities against towns arising upon contract, such towns are merely private corporations or individuals, and in this respect they are not affected by the purely municipal public and political features that appertain to their corporate existence in virtue, and in reference to which alone they are subject to the absolute control of legislation." And to the same effect is the case of People v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202.

This distinction as to the powers delegated to municipal corporations was clearly recognized and commented upon by this court in the case of Western College v. City of Cleveland, 12 Ohio St. 375. In that case Judge Gholson, announcing the opinion of the court, at page 377, says: "It is the duty of the state government to secure to the citizens of the state the peaceful enjoyment of their property, and its protection from wrongful and violent acts. For the proper discharge of this duty power is delegated in different modes. One of these is the establishment of municipal corporations. Powers and privileges are also conferred upon municipal corporations, to be exercised for the benefit of the individuals of whom such corporations are composed; and, in connection with these powers and privileges, duties are sometimes specifically imposed. It is obvious that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect persons and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation, and its adaptation to the purposes of residence or business. As to the first, the municipal corporation represents the state, discharging duties incumbent on the state; as to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done or omitted is governed by the same rule of responsibility which applied to like delegations of power; as to the second, the rules which govern the responsibility of individuals are properly applicable." See, also, City of Cincinnati v. Cameron, 33 Ohio St. 366.

The liberal quotations, in this opinion, from the authorities above cited need no further apology upon our part than to say that, if the principles there announced and the conclusions there reached are correct,and we believe they are, and adopt them,they conclusively refute and answer the contention of plaintiff in error that the statute under consideration in this case does not restrict the right of liberty to contract, and is in the nature only of a direction by a principal to its agent.

Again, stripped of its provisions, except so far as they relate to contractors and subcontractors, the first section of the statute under consideration reads as follows: "It shall be unlawful for any contractor, or subcontractor for any part of any public works of, or work done for such state, or political subdivision thereof, or any person, corporation or association whose duty it shall be to employ or to direct and control the services of such laborers, workmen or mechanics, or who has in fact, the direction or control of the services of such laborers, workmen or mechanics, to require or permit them, or any

of them, to labor more than eight hours in any one calendar day." Thus it is apparent that this statute, which is peremptory in terms, is more than a mere direction by a principal to an agent, and that its provisions apply not only to officers and agents of the state of Ohio, but that they apply with equal force to all persons who would enter into contracts with the state or any of its political subdivisions, and undertakes to limit and restrict such persons in their right to contract by prohibiting the making of contracts for day's work of more than eight hours. What the terms and stipulations of a contract shall be is matter to be determined by the contracting parties, and the right has not been delegated to, nor is it within the power of, the general assembly by mandatory laws to prescribe the terms and provisions that shall be inserted in contracts that may be made between persons legally competent to contract. Doubtless the legislature might, in the absence of contract between the parties, prescribe the number of hours' labor that should constitute a day's work; but it is not in the power of the legislature by the enactment of a positive law to abridge the right of parties to fix by contract the number of hours that shall constitute a day's work, nor to deny effect to the stipulations and agreements of the parties themselves touching such matter, except only as the exercise of such power may be authorized for the common welfare; and the right to so exercise this power of restraint extends only to matters affecting the public welfare or the health, safety, and morals of the community. The number of hours' labor that shall be performed in a day is an important factor, and constitutes an essential part of every contract of service, and to deny effect to the stipulations or agreements between employer and employé touching the number of hours the employé shall labor each day is, in effect, either to impair the obligation of their contract or to deny to them the right to stipulate or contract touching that matter. The latter is the right denied by the statute here in question. It is, we take it, axiomatic, that in service contracts the right to contract necessarily includes the right to fix by agreement the number of hours that shall constitute a day's work for the person employed; but by the terms and provisions of this statute the parties are not left free to negotiate respecting this matter between themselves, but the number of hours which shall constitute a legal day's work for the laborer employed on work done for the municipality is, by this statute, arbitrarily fixed and determined, and the statute further provides just what stipulations in this respect shall, by the contracting parties, be incorporated in their contract, and enacts that noncompliance with the provisions of said statute shall be deemed a misdemeanor punishable by fine or imprisonment, or both, at the discretion

of the court. The privilege of making and entering into contracts is more than a mere license or liberty. It is a property right. It is an essential incident to the acquisition and protection of property, and is such right as the legislature may not arbitrarily and without sufficient cause either abridge or take away. In the case of Palmer v. Tin

gle, decided by this court, and reported in 55 Ohio St. 423, 45 N. E. 313, the second clause of the syllabus is as follows: "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 the general assembly in such cases is not conclusive."

ror.

There is one other claim of counsel for plaintiff in error upon which they seem to place some reliance that should perhaps be briefly noticed, and that is as to the matter of estoppel on the part of defendant in erCounsel for plaintiff in error say in their brief: "It is plain that the municipality itself cannot complain, for, as has been shown above, it is merely an agency of a higher power, to wit, the state, and can only contract as it is authorized by that power to do; nor can the contractor be heard to complain, for the city, in pursuance of its granted powers, and under restrictions imposed by the act in question, in effect said to him and all others, when it invited bids for the performance of the work, "The statute is one of the conditions which must be complied with, and an obligation which must be assumed by the contracting party.' The contracting party (the Clements Bros. Construction Co.) was not compelled to bid. It did so voluntarily, with full knowledge, and, when awarded the contract, executed it voluntarily, knowing all of its provisions, and assumed the obligations and conditions imposed by the statute." It would, perhaps, be a sufficient answer to this claim of plaintiff in error to say that the stipulation referred to became a part of the contract not because of any voluntary agreement between the parties that it should be inserted therein, but because the statute forcibly injected it. And that such is the fact we think sufficiently ap pears from the language of the contract which immediately follows such stipulation. That language is: "The foregoing stipulation is made by reason of and to conform to the requirements of an act of the general assembly of the state of Ohio, to provide for limiting the hours of daily service of the laborers, workmen and mechanics employed upon public works, or of work done for the state of Ohio, or for any political subdivision thereof, providing for the insertion of certain stipulations to any contracts of public works,' etc., passed April 16, 1900, to the extent that the provisions of said act are

applicable in the performance of this contract." But, further, upon this proposition, as especially pertinent, we quote again from the opinion of Justice O'Brien in the case of People v. Coler, above cited. He says: "The fact that certain provisions of the labor law were actually incorporated into the contract signed by the contractor cannot change or add anything to the strength of the position assumed by the city. The relator is not estopped by the agreement when there is no element of estoppel in the case, and the question is with respect to the validity of the statute, and not the construction or effect of the contract in that regard. If the law is valid, it governs the contract and the rights of the parties, whether actually incorporated into writing or not, since all contracts are assumed to be made with a view to existing laws on the subject. If it is not valid, the contractor has not made it so by stipulating in writing to obey it, and prescribing the penalty for his own disobedience, which is the forfeiture of all rights under the agree ment. It is not in the power of the legislature to protect an invalid law from judicial | scrutiny by providing that it must receive the assent of the parties to every contract to which it relates. * Courts in such cases are not bound by mere forms, but must look at the substance of things, and, so viewing this transaction, it would be idle to attempt to deceive ourselves with the idea that the question involved in this appeal arises out of the stipulations of the parties to the contract, or is governed by them, rather than the provisions of a statute. The contract is in the form that we find it not because the parties so elected to contract, but for the reason that the statute would not permit them to contract in any other way."

As to the further claim of plaintiff in error that, "even if the provisions of the statute were not actually inserted therein, they would be read into the contract as a part of the law of the state," for answer we need only refer to the third paragraph of the syllabus of Palmer v. Tingle, 55 Ohio St. 433, 45 N. E. 313, which syllabus is as follows: "While a valid statute regulating contracts is, by its own force, read into and made a part of such contracts, it is otherwise as to invalid statutes." As bearing more or less directly upon the questions herein considered, in addiiton to the authorities above cited, the following cases will be found instructive: State v. Loomis, 115 Mo. 307, 22 S. W. 350, 21 L. R. A. 789; Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354; Ex parte Kuback, 85 Cal. 274, 24 Pac. 737, 9 L. R. A. 482, 20 Am. St. Rep. 226; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621, 25 Am. St. Rep. 863; Com. v. Perry, 155 Mass. 117, 28 N. E. 1126, 14 L. R. A. 325, 31 Am. St. Rep. 533; Low v. Printing Co., 41 Neb. 127, 59 N. W. 362, 24 L. R. A. 702, 43 Am. St. Rep. 670; People v. Gillson, 109 N. Y. 389, 17 N. E. 343, 4

Am. St. Rep. 465; In re House Bill No. 203, 21 Colo. 27, 39 Pac. 431; In re Eight-Hour Bill, 21 Colo. 29, 39 Pac. 328; State v. Lake Erie Iron Co., reported in 33 Wkly. Law Bul. 6, and affirmed by this court, 51 Ohio St. 632; 1 Marsh v. Poston, reported in 35 Wkly. Law Bul. 327, affirmed by this court in 54 Ohio St. 681, 47 N. E. 1114; Railway Co. v. Gilmore, 4 O. C. D. 366, 8 Ohio Cir. Ct. R. 658.

Our conclusion in this case is that the statute relied upon and pleaded by plaintiff in error as a defense to the claim of defendant in error is unconstitutional, because in conflict with sections 1 and 19 of the bill of rights. And therefore such statute cannot avail the city as a defense to shield it from liability to defendant in error for the amount due said defendant in error under its contract. The circuit court was right in sustaining the demurrer to the answer and in rendering judgment against the city, and that judgment is therefore affirmed.

BURKET, C. J., and SPEAR, DAVIS, SHAUCK, and PRICE, JJ., concur.

(67 Ohio St. 166)

GRANT v. VILLAGE OF HYDE PARK. (Supreme Court of Ohio. Nov. 18, 1902.)

EMINENT DOMAIN-LAND FOR STREETS-DAMAGES-CHANGE OF GRADE-RIGHT TO JURY -VERDICT-APPEAL-REVIEW.

1. In a proceeding brought by a municipality to condemn land for a street, the inquiry necessarily embraces not only an ascertainment of compensation to the landowner for the land taken, but damages to the residue of the abutting land of such owner.

2. The question of what is to be appropriated is determined by the resolution of the council, and the application filed in court in conformity therewith. And where the application makes a general demand for an appropriation for street purposes, and prays that a jury be impaneled to make inquiry into and assess the compensation to be paid the landowners, and the inquiry proceeds on such application without amendment, the effect of the judgment of condemnation is to give to the municipality the right to use the land taken for all street purposes, including the right to establish a reasonable and proper grade. Hence the question of probable future grade of the street is a proper subject of inquiry in the ascertainment of damages to the residue of the land.

3. The council of such municipality has not power, by an ordinance passed while the condemnation suit is being tried, to change the terms of its resolution and of its application so as to ask to appropriate more or less than is therein demanded.

4. Where, in such case, testimony has been received tending to establish a number of different methods of grading the street, as bearing upon the probable and reasonable grade which the municipality may in the future adopt, and the jury has, upon the whole case, found for the landowner substantial damages to the residue of his land, and has returned the same in a general verdict, and has at the same time returned a special verdict, in answer to interrogatories submitted, to the effect that damages are allowed on account only of a future

1 Memorandum decision, and not published in Northeastern Reporter.

grade that might be established, and the street improved in accordance with it, and that, if the street should be improved on a grade which would not necessitate a cut in excess of five feet, there would be no damage, it is error for a reviewing court to disregard the general verdict as to such damage, and to hold that that verdict is controlled by the special verdict, and upon that ground set aside the amount found in the general verdict as the damages the party will sustain to the residue of the land by reason of the appropriation.

(Syllabus by the Court.)

Error to circuit court, Hamilton county.

This is an appropriation case. The proceeding was commenced in the court of common pleas by the village of Hyde Park against the plaintiff in error, Nathan Grant, and John Kilgore and Mary Kilgore, as owners of the land sought to be appropriated. The application to appropriate and assess compensation was filed under favor of section 2235 et seq., Rev. St. It recited "that its council, by ordinance duly passed on September 13, 1899, declared its intention to, and did, appropriate for such use for street purposes, for opening a street to be known as 'Avery Lane," " property specifically described, a portion of which was owned by Grant, and the remainder by the Kilgores. The strip was 50 feet in width, extending from Observatory place westerly to Columbian avenue, a distance of about 390 feet. The prayer was that "a jury be impaneled to make inquiry into and assess the compensation to be paid by the plaintiff for the property appropriated as above set forth, and that upon payment possession be awarded," etc. Proper notice was given the defendants, and at the time fixed a jury was impaneled, and a trial had. Divers exceptions were taken by the plaintiff to the admission of testimony and to the charge of the court to the jury, which will be noticed in the opinion. A verdict was returned in favor of Grant for $750, value of land taken, and $1,250 for damages to the residue. A lesser amount was returned in favor of the other parties. In response to interrogatories, a special verdict was also returned, finding that damages to residue were allowed on account only of a future possible grade that might be established, and the street improved in accordance with such grade, and that, if the street should be improved on a grade which would not necessitate a cut in excess of five feet, there would be no damage to the residue of the property. Error being prosecuted to the circuit court, that court found that it appeared from the record of the proceedings that the village only condemned the right to make a cut five feet in depth, and that, therefore, by force of the special verdict, no damage accrued to the residue of the land. It thereupon adjudged that so much of the judgment below as awarded damages to the residue of the land be set aside and held for naught, but that the judgment of the common pleas be in all other respects approved and confirmed. To obtain reversal of the judgment

of the circuit court, and an affirmance of that of the common pleas, this error proceeding is brought. Reversed.

John Healy and F. H. Kinney, for plaintiff in error. Burch & Johnson and Edward Colston, for defendant in error.

SPEAR, J. To a full understanding of the issue made and tried in the common pleas, it is proper here to state that the landowners contended that, in determining the question of damage to the residue of their lands, the jury should be informed by testimony touching the question of a probable grade of the street. It was further urged that a natural grade would be one which would bring the west end of Avery lane on a level with Columbian avenue. On the other hand, it was contended by the plaintiff that the question of grade did not properly enter into the inquiry,—that being a matter calling for a subsequent proceeding, when it should be proposed by the village to improve the street,and that damages, if any, by such improvement, would then be awarded the landowners, including the matter of grade. In addition to this, it was shown that the fall from the level of the ground at the east end of the proposed street to the grade of Columbian avenue, its western terminus, was about fifty feet, and that the grade suggested would be wholly impracticable and unreasonable. The court overruled the objection of the village to the introduction of testimony respecting the probable grade, and evidence was introduced pro and con by both parties on that subject. The village further insisted that it was not its purpose to make a cut in excess of five feet, and that in that case there would be no damage. It also, during the trial, asked leave to amend its application by setting forth therein that there is no intention or desire to make any grade on this street that will necessitate a cut in excess of five feet along the center line of the street at any time in the future. This application was overruled, and the cause ordered to proceed on the theory of the law already adopted. After the evidence of the landowners had closed, the plaintiff offered in evidence a certified copy of an ordinance, passed in council the evening before, which purported to declare that there was no intention of the council at any time to fix a grade which would necessitate a cut in excess of five feet, and disclaiming any intention at any time of ever establishing a grade which will require a cut in excess thereof; also purporting to authorize and direct the solicitor to consent to the entry of a judgment in the case pending, perpetually enjoining the plaintiff, its successors or assigns, from ever establishing a grade in excess of five feet; also further authorizing the solicitor to make such further agreement, and have the same made an order of court, as would fully protect Grant from any damage he might suffer by reason of a grade being established