Foster v. Commissioners of Wood County.

The general and abstract question, whether an act of the legislature be unconstitutional, can not with propriety be presented to a court. The question must be, whether the act furnishes the rule to govern the particular case. What, then, is the effect and operation of the act upon the particular case? and does such effect and operation conflict with any provision of the constitution?

It appears that by acts referred to in the agreed statement, and particularly an act passed the 23d of March, 1850, "to incorporate the Wood County and Western Reserve Free Turnpike Company," that the general assembly, for the purpose of having constructed a road in a particular locality, appointed certain persons commissioners, and that these commissioners and their successors were made a corporation, under the style mentioned, for the purposes of the act. The form of things and the name of things are not often material, and certainly ought not to be regarded in a matter so serious as a question of refusing obedience to an enactment of 544] the legislature. In form *and name the enactment looks like the creation of an ordinary turnpike company, for the benefit of a body of corporators, and in this view might lead to an application to it of principles only applicable to private corporations. When, however, the substance is examined, it appears to be a public corporation, and really only a part of the machinery of the state for the construction and repair of highways; and there is properly no personal and private interest. The officers of the corporation are really county or township officers discharging duties usually discharged by such officers-the construction and repair of a highway for the free use of the public. It is, in terms and in fact, to be a free turnpike road. The only personal interest is that which those who live on land abutting upon a public highway have, as compared with other citizens of the county or state.

It is such interest which sustains the assessment as distinguished from a tax. The same principle is applied in charging upon cities and towns the repair of the highways which pass through them, and in allowing an assessment by the front foot on the real estate abutting upon the highways. The only difference between such cases and the present is, that in the latter the assessment is by the acre. It has the principle of benefit, which is sufficient when ascertained and fixed by law in reference to a particular locality, as compared with other localities, and need not be limited to particular pieces of property as compared with other pieces. If the legislature

Foster v. Commissioners of Wood County.

directs that upon a road being constructed in a particular section of the state, there shall be an assessment on account of the benefit to the locality, of a certain rate per acre, or a certain per cent. on the valuation, this would be equally an assessment as if a commission had been established to ascertain the amount of benefit which each individual owner, as compared with others, would receive. In this view we see no ground to sustain the objection, that what the legislature directed in this case was not an assessment.

*The other ground relied on is, that the act is a special one, [545 conferring corporate powers, and repugnant to the first section of the thirteenth article of the constitution. We do not think it necessary to follow the counsel for the plaintiff in his elaborate argument as to the true meaning of that section of the constitution. We prefer to take the question negatively, and say that this particular case is not embraced, without attempting to lay down any rule as to other cases. We regard this case as somewhat anomalous. We need not decide whether such a corporation could be formed, or its powers as a corporation renewed by a special act, or whether the act passed is to be regarded as a general law or a special act; for we think that the particular thing authorized in this case can, in no proper sense, be deemed a corporate power within the meaning of that section of the constitution.

The public road in a particular locality, for the construction of which a provision had been made before the adoption of the constitution, remained unfinished and unpaid for. It was a duty resting on the government to dispose of this road. For the purpose of its completion, or the payment for labor expended, a law is passed directing the county commissioners to assess for a limited period of years the property immediately benefited. The amount of money so raised, is to be expended under the direction of those having charge of the road. Now, in all this, we are not able to say, certainly not with that clearness and freedom from doubt which such a case requires, that the legislature exceeded its powers and violated the constitution.

The judgment must be for the defendants, that the injunction be dissolved and the bill dismissed.

BRINKERHOFF, C. J., and SCOTT, SUTLIFF, and PECK, JJ., con

curred.

Floyd & Co. v. Smith.

546]

*JOHN FLOYD & Co. v. CHRISTIAN SMITH.

Where a debtor, in contemplation of insolvency, makes an assignment of property in trust to trustees, with the design to prefer one or more creditors to the exclusion of others, such assignment, whether fraudulent or bona fide, by virtue of the act of March 14, 1853, "declaring the effect of assignments to trustees in contemplation of insolvency," is operative to pass title to the assignee, is not void, and can not rightfully be so treated by creditors not embraced within its provisions.

IN error to the district court of Holmes county.

On the 17th day of February, 1855, Christian Smith filed his petition, in the court of common pleas of Holmes county, against Elyzur J. Loveland, stating that on the 14th of February, 1855, said Loveland had, without leave, wrongfully taken certain of his goods, wares, and merchandise, particularly described, to his damage, for which he asked judgment.

At the March term, 1855, of the court of common pleas, the court ordered John Floyd & Co. to be made defendants instead of said Loveland.

May 7, 1855, Floyd & Co. answered, not denying that said Loveland took the property described in the petition, but denied that it was the property of Christian Smith, and that it was taken as such, but averred that it was taken as the property of George F. Smith, by said Loveland, as the sheriff of Holmes county, on a writ issued out of the court of common pleas of said county, in a case pending therein, wherein said John Floyd & Co. were plaintiffs, and said George F. Smith was defendant.

The case came into the district court by appeal, and was there tried at the June term, 1855, and resulted in a verdict for the plaintiff, Christian Smith. Thereupon said Floyd & Co. moved the court to set aside the verdict, and for a new trial, on the ground that the verdict was against the weight of the evidence and con547] trary to law, which *motion was overruled and judgment eutered, and bills of exceptions were taken.

It appears from a bill of exceptions that the following was all the evidence given on the trial:

The plaintiff, to maintain the issue on his part, gave in evidence a certain agreement in writing, which reads as follows:

Floyd & Co. v. Smith.

"This article of agreement made between George F. Smith and Christian Smith, witnesseth, that the said Christian Smith agrees to pay the debts for which he is the bail and surety of the said George F. Smith, to wit, a note of Adam Lane for four hundred dollars with the interest, two notes to John Woods for about four hundred dollars, one note to George P. Smith & Co. for two hundred dollars, one to same for two hundred and fifty dollars, one to same for two hundred and seventy-five dollars, one note to James P. Tanner for two hundred and eighty-five dollars, one to Babcock & Co. for one hundred dollars. And the said George F. Smith hereby sells and conveys to the said Christian Smith all the book, bookaccounts, claims, notes, and demands coming to him, and also the goods, wares, and merchandise belonging to the said George F. Smith, in or at his store at Winesburg, Holmes county, and also a gray horse, a two-horse wagon; and the said George F. Smith is also to execute a mortgage on his real estate to secure any balance that may be due, if the said book-accounts, goods, etc., aforesaid, be insufficient to pay the amount for which said C. Smith is bail, and which he hereby agrees to pay as aforesaid; and the said goods and merchandise is to be inventoried at cost, and also the claims in said books, notes, etc., and if there shall be more realized from the same than what the said C. Smith hereby binds himself to pay, he is to pay the balance to George F. Smith, first deducting enough to pay reasonable costs and expenses.

(Signed,) "February 14, 1855.

"GEORGE F. SMITH, C. SMITH."

*Christian Smith, the plaintiff, was a witness on the trial, [548 and from his cross-examination it was made to appear that the goods, wares, and merchandise transferred to him under the foregoing agreement, were estimated to be worth, at first cost, the sum of twenty-five hundred dollars, and that the good claims assigned to him as aforesaid, were of the value of five hundred dollars, and that the doubtful claims so assigned amounted to eleven hundred dollars; and that said George F. Smith and wife, on the 16th of February, 1855, executed and delivered to said Christian Smith a mortgage on lands particularly described, duly acknowledged, and conditioned according to said agreement, and which mortgage was offered in evidence on the trial. The consideration mentioned in the mortgage was nineteen hundred and twenty-five dollars. It was also proved that the mortgaged premises had cost said George F. Smith at least thirty-five hundred dollars, and that when the mortgage was made, said premises were worth about two thousand dollars. It further appeared that the property covered by the

Floyd & Co. v. Smith.

assignment copied above, and the mortgage, constituted all the property said George F. Smith owned, except certain household goods exempt from execution, and that the mortgaged premises had no other incumbrance upon them at the time, except a certain mortgage to George F. Smith's father-in-law, for between nine and ten andred dollars; that the plaintiff, Christian Smith, was the father of said George F. Smith, and that he had taken all the property mentioned in the assignment and mortgage as security and indemnity for the amount of the "notes mentioned in said written agreement for the payment of which he, the plaintiff, was liable as aforesaid, as security for said George F. Smith."

It was further in evidence that, on the 13th of February, 1855, William Floyd, one of the defendants below, was at Winesburg, where George F. Smith kept his store, endeavoring to get him to pay, or secure to be paid, the claim, which the defendants below 549] then held against him, amounting to three hundred and seventy-seven dollars and fifty-seven cents, and on which the writ of attachment upon which the goods sued for was issued, on February 14, 1855, being the same day on which the written agreement copied above was made, and that when the writ of attachment was levied by said Loveland, then sheriff of Holmes county, on said 14th February, 1855, not more than some four or five hundred dollars' worth had been invoiced between the two Smiths.

It was further in evidence that when said Floyd went to Winesburg, where the Smiths, father and son, lived, to see about his claim against the son, George F. Smith, the latter told Floyd that he would try and get his father to go his security, and went to see his father for that purpose. When he asked his father, he replied that he had already gone his security to a large amount, and insisted on George F. Smith securing him, which he agreed to do; and that the arrangement was committed to writing on the next morning; "and that said C. Smith gave as a reason for taking as much as was included, by saying that he could not know what it was worth. And C. Smith testified that he was liable for George to the amount of nineteen hundred and seventy-five dollars at the time of said sale."

The defendants, to maintain the issue on their part, proved by sid Loveland, then sheriff, that on the 14th of February, 1855, when he executed said writ of attachment, he did not seize upon, nor take by virtue of said writ, any of the goods and merchandise