Argument of George Hoadly, For the Board of Education. IF YOUR HONORS PLEASE-When, this case was reserved for hearing in general term and it was agreed that the argument should proceed this day, it was suggested by a member of the Court that among the questions to be now considered would be that of the legal existence of the Board of Education of the city of Cincinnati. My friend who opened the argument for the plaintiffs has omitted to refer to this point. I do not choose to follow him, but purpose to begin my part of the discussion with its consideration, for the suggestion came from the Court, and may be renewed where we can not reply. How frequently and often how properly are cases here decided upon grounds not discussed by counsel. I do not care to spend much time upon the proposition that there is an estoppel against the plaintiffs who have sued the Board as a lawfully constituted body, precluding them from denying its official existence. I have in my hand the pamphlet reprint of the decision of the Supreme Court in the case of The State of Ohio against The Cincinnati Gas Light and Coke Company, the report of which will appear in the 18th Ohio State Reports, in which it was held that even in quo warranto against a corporation, its corporate existence can not be questioned or denied, if the writ be directed against it by its corporate title. In such cases the question becomes one of forfeiture, not of corporate existence. The citation of this case is all that is needed to prove that the official character of the Board of Education can not here be denied. If a plaintiff suing a corporation, if the State seeking to forfeit a charter for abuse or non-use, may not say, "Here is no corporation," Minor et al. v. Board of Education of Cincinnati et al. neither may those who seek to enjoin the action of corporate officers deny their title to such offices. The remedy is in quo war ranto. Nor do I care to inquire whether the effect would not be decisive against the injunction. Yet, surely, if my clients are not lawfully clothed with the powers which the law appears to confer upon the Board of Education of Cincinnati, there would seem to be no necessity for this remedy. It is suggested that the act of 1853, which creates the Board, is unconstitutional, because it is a special law conferring corporate powers. I am aware that the first section of that act does, in terms, confer upon the corporate authorities of the city of Cincinnati, by name, certain powers and duties with reference to the matter of education of children within the city. But, your Honors, though put in this form, the work of education is, as Judge Stallo justly observed, no part of the proper corporate action of the city. It is the office of the State, not of municipalities, and when a city or village acts, it acts as the representative of the State. The powers of education and school government are not conferred upon councils, the ordinary legislative assemblies of municipal corporations, but upon separate boards. Upon no other principle can the levy and distribution of the State school fund be justified. Upon no other principle can that otherwise oppressive system of taxing by the rule of wealth, and distributing by the rule of numbers, be justified. I do not know how it now is, but years ago, when Mr. King was president of the School Board, the matter was investigated, and it was found that more than seventy thousand dollars were annually collected within the limits of this county, and expended in counties like Van Wert, Paulding, and the like, where the number of children within the school ages was greater, relatively to the taxable value of property, than here. This is done because Ohio acts as a State, being, in matters of education, a unit, collecting in all counties on the basis of wealth; expending in all counties on the basis of numbers needing education; a system just, if the principle be admitted, but unconstitutional and unjust if education be a corporate function. Nor do I purpose to do more than merely allude to the suggestion that even if the function in question be corporate in its Minor et al. v. Board of Education of Cincinnati et al. character, it is not "conferred" by the act of 1853, but had been previously granted, and was there only defined, explained and systematized. For, in studying the case in my office, I began by admitting to myself the unconstitutionality of the act of 1853, and I soon discovered that this result, apparently so portentous, is productive of no effect upon the existence or powers of the Board, of no effect whatever, not the least, and does, at most, only require it to act by another name. I admit that, in this event, the proper title of the Board is, "The Board of Trustees and Visitors of Common Schools." No other change in the legal positions and relations of the parties follows from the discovery that the act of 1853 is a "special law conferring corporate powers," forbidden by the Constitution of Ohio. If this law be no law, there still stands upon the statute book a law differing from it in no material respect, not repealed by this law, the ancient law of 1834-a law which was, if not written, at least urged and prompted by a man now in his grave, who was himself of that "peculiar style of irreligion" that has been spoken of a man who would not permit his own daughters to enter the school of which they were members until after the conclusion of the morning exercises. I state the fact upon the authority of his widow. Your Honors need not be told that I refer to the author of the common school system of Ohio, the lamented Nathan Guilford. The act of 1853 does not purport to repeal the act of 1834. Your Honors will find the repealing clause of the act of 1853 upon the 779th page of Disney's Laws and Ordinances, edition of 1866. It does not refer to the act of 1834. And why? Refer to the first section of the municipal corporation law of May 3, 1852. You find that it repeals "all acts now in force for the organization or government of any such municipal corporations." (Disney, edition of 1866, p. 62.) And such was the character of the act of 1834. It was the charter of Cincinnati. This first section of the law of 1852, then, repealed it. But not altogether. For by the 109th section of the act of 1852 (Disney, edition of 1866, p. 108), it was provided that “all special acts in relation to any municipal corporation, repealed by the first section of this act, shall notwithstanding, so far as the same affects Minor et al. v. Board of Education of Cincinnati et al. the particular police regulations, or local affairs of any municipal corporation in matters not inconsistent with this act, be and remain in force, as by-laws and ordinances of the particular municipal corporation until altered or repealed by the proper authority thereof." It will not be pretended that the provisions as to schools contained in the act of 1834 are inconsistent with any provision of the act of 1852. Hence they are saved from the force of the repeal, and still govern the subject, if the act of 1853 be laid aside. And in the case of Blanchard v. Bissell, 11 Ohio State, 96, it is expressly decided that the act of May 3, 1852, did not abrogate the school systems then existing, nor repeal the special laws creating them in the several towns and cities of the State. And the 67th section of the general school law of the State (2 Swan & C. 1365), expressly withdraws from the grasp and scope of that act all schools established by special laws theretofore passed, which special laws, it provides, shall not thereby be "repealed, changed or modified in any respect." The Supreme Court, in Blanchard v. Bissell, say that, "The Legislature manifestly intended all special and local school laws to be left untouched, both by the towns and cities act of 1852, and by the general school law of 1853." The provisions, then, of the act of 1834 remained as the law of the schools of Cincinnati, until the substitution of the act of 1853. If this substitution be invalid, the act of 1834 remains. And now, as to the powers conferred by these two statutes, let us compare by reading them together. From the ninth section of the act of 1853 (Disney, edition of 1866, p. 775), I read as follows: "That the said trustees and visitors shall have the superintendence of all the schools in said city, organized and established under this act, and from time to time shall make such regulations for the government and instruction of the children therein, as to them shall appear proper and expedient. * * * ** * * * * * *and generally, do and perform all matters and things pertaining to the duties of their said office, which may be necessary and proper to promote the education, morals and good conduct of the children instructed in said schools. SEC. 10. "That the said trustees and visitors, for the purpose Minor et al. v. Board of Education of Cincinnati et al. of better organizing and classifying the schools under their supervision, shall have power to establish and maintain, out of any fund under their control, such grades of schools other than those already provided for, as may to them seem necessary and expedient, for the above-named purposes, and are hereby authorized to cause to be taught therein such other studies, in addition to those taught in their district schools, and under such regulations as said trustees and visitors may, from time to time, prescribe; provided, however, that said funds shall not be appropriated toward the establishment and maintenance of such other grades of schools so as in any way to impair the efficiency and permanency of the common district schools in said city." SEC. 12. "That the common schools in the several districts of the city (and all other grades of schools authorized or established, and maintained in whole or in part from the school fund of said city), shall, at all times, be equally free and accessible to all white children, not less than six years of age, who may reside in said city, and subject only to such regulations for their admission, government and instruction as the trustees and visitors may, from time to time, provide." * * * * * * * * SEC. 14. "There shall be a board of examiners, composed of seven members, and at the expiration of the respective terms of those now in office the said Board of Trustees and Visitors shall appoint, for the term of three years, suitable persons, residents and citizens of said city, of competent learning and abilities, as examiners of said schools and of the qualifications of teachers thereof, which examiners, when organized by the election of a president, shall constitute and be denominated "The Board of Examiners of Common Schools in Cincinnati," and all vacancies which may occur in said board shall be filled by said trustees and visitors. It shall be the duty of said board of examiners to meet at least once in every month, examine the qualifications, competency and moral character of all persons desirous of becoming teachers and instructors in said schools, as well with reference to their methods of instruction and mode of government, as literary attainments; and any four members of said board shall have power to grant certificates thereof to such persons as in their opinion shall be entitled to receive the same, and no person shall be employed and paid directly or indirectly as teacher or instructor in any of said schools until he or she shall have obtained from said board of examiners a certificate of qualifications as to his or her competency or moral character." By the act of May 4, 1868 (Disney's Laws and Ordinances, edition of 1869, D. 163), the title of the "Board of Trustees and |