Greenville v. Demorest.

of flowage from West Virginia or even Pennsylvania exempts Cincinnati. Besides, the act exempts those Ohio cities "now flowing sewage," etc. A city hereafter constructing a sewer system draining into the Ohio river comes within the provisions of the act and is bound to purify its sewage, notwithstanding contamination from the other states, and although another city of the same character is exempt.

This classification can not, in our opinion, be sustained.

It is urged that the exception and not the act should be stricken down as unconstitutional. Some difficulty always arises in deciding when an exception or limitation should be held void and when the main act is to fall.

In the case of State v. Buckley, 60 Ohio St. 273, 296 [54 N. E. Rep. 272], there is a discussion of this question. The question there was as to the validity of the registration law, which was confined to all of the cities of the state except Mansfield and the cities of the fourth grade of the first class, and the court held that the act was not of uniform operation throughout the state. In the opinion it is said:

"It is urged, however, that if this exception makes the act unconstitutional, the exception should be disregarded, and the act held valid as operating uniformly throughout the state. The answer to this is that the court has no law-making power, and can not extend a statute over territory from which it is excluded by the general assembly. A court can hold a whole act unconstitutional because it is not broad enough, that is, because it is not of uniform operation throughout the state; but it can not extend an act which is too narrow, so as to take in territory which was left out by the general assembly. In the case of an exception, the general assembly never enacted the statute in the excepted territory, and the court has no power to enact it therein."

The same proposition was up in the case of State v. Lewis, 74 Ohio St. 403 [78 N. E. Rep. 523], involving the validity of the tax inquisitor law. Under an act of 1885 the county commissioners were authorized in certain counties of the state to employ a tax inquisitor on certain terms. The act of 1888 created a general authority for the commissioners in any coun

Darke County.

ty of the state to appoint a tax inquisitor at a certain compensation, but in Sec. 4 of the act there was a provision that this act of 1888 should not affect the provisions of the act of 1885. Now, it was contended that inasmuch as this was a separate section which provided that it should not affect the provisions of the act of 1885, the separate section should be declared invalid, and the main act extended to cover the entire state, just as it was argued in this case that we should hold this provision excepting the Ohio river cities unconstitutional and eliminate it from the act and leave the act one in general operation throughout the state. The court held in that case that Sec. 4 was manifestly an exception and qualified Sec. 1. In this case the exception is in Sec. 1 and manifestly an exception. The reason for this is given in the case of Friend v. Levy, 76 Ohio St. 26, 50 [80 N. E. Rep. 1036]. That was a repeal of the direct inheritance law. In the repeal it was provided that estates in which the inventory had been filed were excepted from the repeal. The Supreme Court held that that exception was invalid, and this observation is made:

"The exception being void, the question arises whether the whole act must be declared unconstitutional. The rule of construction is that, where the void parts of a statute were evidently designed as a compensation for, or inducement to, the valid portions thereof, so that the whole taken together warrants the belief that the legislature would not have passed the valid portions alone, the whole statute should be held inoperative."

So in this case we are not able to say that the legislature would have passed this bill if the Ohio river cities had not been exempted from its burdens.

We are therefore of the opinion that the last clause of Sec. 1 is an exception and not a limitation. That there is a clear intention in the act not to extend its provisions to the Ohio river cities, and that to do so by interpretation would be judicial legislation.

The duty of the court is to construe the act as clearly intended, and so construed it is not of uniform operation throughout the state and is therefore unconstitutional.

Greenville v. Demorest.

There is still another constitutional objection. The penalty clause (Sec. 6) prescribes a penalty of $500 against individual members of council for failure to take the steps required or to carry out any order of the state board of health. This in effect stifles the judgment of the local governing board and taxing authority. Such a penalty might legally be charged against an administrative officer, having only administrative duties, but to do so against members of a legislative body is destructive of the fundamental theory of our government and substitutes the state board as the real governing board. Sanning v. Cincinnati, 81 Ohio St. 142 [90 N. E. Rep. 125; 25 L. R. A. (N. S.) 686].

It is true that the penalty clause is not directly in issue in this case, but it is properly before the court by the averment that the state board is threatening to resort to the penalty clause and that members of the council are about to act solely under force of such threats.

We do not express an opinion as to whether or not the unconstitutionality of Sec. 6 destroys the whole act, yet conceding that it only applies to the penalty clause we feel justified in expressing our opinion as to this section, in view of the allegations of the amended petition above referred to.

It is not necessary to express an opinion as to the other points made in argument further than to say that the court is inclined to uphold drastic measures provided by the general assembly for the public health and public safety where the enactment is made in pursuance of the general grant of legislative authority, but such enactment must not be repugnant to any specific provision of the constitution designed for protection of the people at large.

It follows that in our opinion the act under consideration is unconstitutional and void.

The demurrer to amended petition is therefore overruled.
Dustin and Ferneding, JJ., concur.

Hamilton County.

INJUNCTION-MUNICIPAL CORPORATIONS.

[Hamilton (1st) Circuit Court, November 1, 1910.]
Giffen, Smith and Swing, JJ.

*FRED TUKE, A TAXPAYER, v. J. H. SUNDMAKER (DIR).

AWARD OF CONTRACT ENJOINED FOR IRRECONCILABILITY OF PROPOSALS. Injunction lies against award of contract for a municipal improvement under Gen. Code 4328, where the specifications were impossible of enforcement and the bidders were not made aware of the construction which would be placed upon the specifications in determining which was the lowest and best bid.

Maxwell & Ramsey, for plaintiff.

E. M. Ballard, and F. F. Dinsmore, for defendant.

GIFFEN, P. J.

The plaintiff seeks to enjoin the execution of a contract for paving Eastern avenue with wood block treated with a heavy or dead oil of coal tar.

The specifications provided that the oil shall be free from carbon, and it is admitted that a strict compliance with this provision is impossible. It is admitted also that the prior interpretation of this provision allowed two and one-half per cent of free carbon. The construction applied in awarding this contract was not more than three-fourths of one per cent. It is plain, therefore, that the impossibility of complying with the specifications was evidenced by each and every sample of oil submitted with the bids, and left to speculation by the bidders the maximum amount of free carbon permitted. While the director of public service had the per cent fixed in his own mind, it was not known to all the bidders nor to all who might desire to bid. Their information must come from the specifications, unless the construction adopted by the director of public service was known to all. The court will not do a vain thing by undertaking the enforcement of that which is impossible or to reconcile proposals that were confessedly not in compliance with the specifications. We are of the opinion that the director of public service could not legally award a contract to any bidder, because all the proposals as evidenced by the samples of oil submitted failed to comply with the specification as to that material. The execution of the contract will be enjoined.

Smith and Swing, JJ., concur.

*Affirming Tuke v. Sundmaker, 21 Dec. 615.

Marmet Co. v. Cincinnati.

LANDLORD AND TENANT.

[Hamilton (1st) Circuit Court, July, 1909.]

Giffen, Smith and Swing, JJ.

*MARMET Co. v. CINCINNATI (CITY).

1. ADVERTISEMENT OF LAND FOR LEASE IMMATERIAL AS TO MISTAKE IN DESCRIPTION IN LEASE.

A mistake having occurred in the description of land held under lease, it is immaterial that in the advertisement offering the land for lease it was described by both metes and bounds and by occupation, while in the lease as afterward executed it was described by metes and bounds only, since the description by metes and bounds would control that by occupation.

2. LESSEE MAY RESCIND LEASE UPON DISCOVERING MUTUAL MISTAKE IN LEASE.

A mistake in the description of leased premises may be material notwithstanding the lessee has not used the property for the purpose intended at the time the lease was executed; hence, its appearing that the mistake was mutual and that the lessee acted immediately upon discovering it, he is entitled to a rescission of the lease; but no recovery of rents paid can be had while the lessee was in possession and enjoyment of the premises previous to the discovery of the mistake.

ERROR to common pleas court.

Kramer & Kramer, for plaintiff,

John R. Schindel, for defendant:

Cited and commented upon the following authorities: Capelli v. Dondero, 123 Cal. 324 [55 Pac. Rep. 1057]; Farley v. Bryant, 32 Me. 474; Bodwell v. Heaton, 40 Kan. 36; Kilbourn v. Fury, 26 Ohio St. 153; Warehouse Co. v. Ozment, 132 N. C. 839 [44 S. E. Rep. 681]; Gephart v. Belleman, 12 Dec. 133; Bush v. Hicks, 60 N. Y. 298; Gillespie v. Moon, 2 Johns. Ch. (N. Y.) 585 [7 Am. Dec. 559]; Winnipisseogee Lake Cotton & W. Mfg. Co. v. Perley, 46 N. H. 83; Knapp v. White, 23 Conn. 529; Wood v. Hubbell, 10 N. Y. 479; Baxter, In re, 152 Fed. Rep. 137; Park Bros. & Co. v. Blodgett & Clapp Co., 64 Conn. 28 [29 Atl. Rep. 133]; Watson Coal Co. v. Casteel, 68 Ind. 476; Grymes v. Sanders, 93 U. S. 55 [23 L. Ed. 798]; Stearns *Affirmed, no op., Cincinnati v. Marmet Co. 85 O. S. 000; 56 Bull.

428.