Dornette v. Allais

I am of the opinion that William Woodward by the provisions in his deeds and the corporate charters accepted by him showed that he contemplated he was creating a public trust, eventually to be controlled and administered solely by public officials; and that, such event having long since occurred, the trust is at present a public trust in the strict legal sense of that phrase. This fundamental conclusion determines the rights and duties of the parties to this action.

In Article III of the Ordinance of 1787, enacted by Congress for the government of the Northwest Territory of which Ohio is a part, it is recited that "religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." When Ohio sought statehood in 1802, the Constitution which it submitted to Congress as a condition of its admission into the Union as a state provided in Section 3, Article VIII:

"But religion, morality and knowledge, being essentially necessary to good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision, not inconsistent with the rights of conscience." And by Section 25 of the same article, equality of educational opportunity was insured by the provision that "no law shall be passed to prevent the poor * * * from an equal participation in the schools, academies, colleges and universities within this state, which are endowed * * * from the revenue arising from donations made by the United States, for the support of schools and colleges."

While the Legislature passed some laws in harmony with this faith in the efficacy of education, this faith had had very little manifestation in deeds at the time William Woodward executed the first trust deed in 1826. No common or public school system had been established. However, there could be no doubt that in Ohio education was regarded as a public or governmental function. From the provisions of his deeds, there can be no doubt that William Woodward so regarded it.

In his deed of 1826 to Lewis and Cogswell he declared the trust to be for "forwarding and maintaining a free school for the education of the poor children of the city of Cincinnati." This trust was to be administered by Lewis and Cogswell and one other trustee "to be elected annually on the first Tuesday of May in each year by the qualified voters of the city of Cincinnati to hold his office for one year and until his successor shall be elected and qualified in such manner as shall be hereafter provided by the Legislature of the state of Ohio." He also provided that if for any reason Lewis, Cogswell or their successors failed to nominate a successor, then the vacancy should be filled by appointment by the mayor and aldermen of the city of Cincinnati (or if there were no mayor and aldermen, then by the Court of Common Pleas) and in that event the term should be for seven years, and it is clear that from that time on the sole power of appointment would, according to the terms of the deed, rest in the mayor, aldermen and voters of the city of Cincinnati.

The deed also imposed a duty upon Lewis and Cogswell to obtain from the Legislature an act of incorporation as soon as convenient, and, when such act was passed, to transfer all the property to the corporation, but if the act of incorporation was refused, the trust was not to be void, but was to continue and be administered by the trustees, Lewis and Cogswell and a third to be elected at the time and in the manner determined by the city council.

It will be observed that William Woodward by the terms of this deed fully manifested his desire that the state through its Legislature and its municipal officers should take part in the administration of this trust, and that, upon the death or resignation of Lewis and Cogswell or their nominees, the entire control of the trust should rest in those appointed by public officers.

A third trustee was appointed and, on the application of the trustees, the Legislature on January 24, 1827, passed an act (25 Ohio Local Laws, 62) to incorporate "The Trustees of the Woodward Free Grammar School," composed of three trustees and their successors as therein provided. The act described the beneficiaries more specifically and included children between the ages of five and sixteen years residing in the city of Cincinnati, who had no parents or other near relatives living within the limits of the city of sufficient ability to provide them with an education, and included also such children whose parents or other near relatives, although of sufficient ability, utterly neglected or refused to provide them with instruction. The trustees were authorized to admit any child upon payment of a reasonable sum as tuition. If the fund was not sufficient to educate all the described children within the city of Cincinnati, then the trustees were required to select an equal number from each ward of the city.

It was provided in the act that the land should remain forever subject to the trust and that every conveyance thereof should be utterly void and of no effect: "Provided however, that the said trustees and their successors, shall have power to make beneficial leases, of all or any part of the said lands, for the term of fifteen years each, or for a longer period, if the extended lease contain a clause of revaluation, every fifteen years." There was no such provision in the deed of 1826 from Woodward to Lewis and Cogswell.

By Section five of the act, a detailed method of selecting the trustees was prescribed. All trustees nominated by Lewis and Cogswell or their successors were required to be citizens of the city of Cincinnati and freeholders therein at the time when it became necessary for them to act as trustees. The third trustee was required to be an elector of the city of Cincinnati and was required to be elected on the first Tuesday of May of each year by the qualified electors of the city. As to the duties of the trustees it was provided:

"It shall be the duty of the said trustees to lease the said lands, in the most beneficial manner, and as soon as a sufficient sum of money shall be raised thereby, to locate and erect a commodious building, to be used and occupied as a school house; to procure teachers of good morals and well qualified to instruct, and to receive so many of the above described children, as the said building will accommodate, and the state of the funds will allow; they shall keep the building in good repair, and on the first day in each year, shall render a full and true account to the mayor and aldermen of the city of Cincinnati, and in case there be no mayor and aldermen, to the aforesaid Court of Common Pleas, of all moneys received by them, and all dues and demands owing to them as such, together with an account of all their expenditures and disbursements, and also of all surplus moneys in their hands, or in the hands of any treasurer appointed by them, belonging to the said trust; and the said trustees shall have power to appoint, annually, some good and responsible person, resident within the city of Cincinnati, to be their treasurer, requiring of him such security, for the faithful discharge of his duties, as they shall deem sufficient. It shall be the duty of such treasurer, to receive and keep safely, all moneys delivered to him by the trustees on account of the said trust, and to enter the same in a book to be provided for that purpose, wherein he shall also keep an account of all disbursements made by him, to the order of the trustees or otherwise, which book shall always be open to the inspection of the said trustees, and he shall moreover render an account of the same, as well as of all his doings in respect to the said trust, to the trustees, at least ten days before the time appointed for them to account with the mayor and aldermen, as aforesaid."

The control of the trustees was set forth in section six as follows:

"That the mayor and aldermen of the city of Cincinnati, or in case there shall be no mayor and aldermen, the Court of Common Pleas for Hamilton county, shall have power to call upon the said trustees for, and compel them to render, on the first day of January, in each year, an account of the rents, issues and profits of the said lands, and of all expenditures on account of the said trust, and also of all surplus moneys, debts, dues and demands, in their hands, or in the hands of their treasurer, arising out of and belonging to the said trust, and such account audited and allowed by the said mayor and aldermen, or said court, shall be a good and effectual discharge to the said trustees; but in case the said trustees, or either of them, on application made as aforesaid, shall refuse to render his or their account as aforesaid, then he or they shall be considered as having abandoned the trust; and the said mayor and aldermen, or the said Court of Common Pleas as aforesaid, may proceed to appoint his or their successor or successors, as is provided in the fifth section of this act; and shall also have full power to compel the said trustee or trustees to account for the same, by an action at law or a suit in chancery, and apply the proceeds of the said action or suit, to the purposes aforesaid."

The mayor and aldermen were authorized to appoint visitors to examine the school and report to them.

The deed had required all teachers to be believers in the doctrines of the Christian religion. This was omitted from the act of incorporation, and it was expressly provided that the benefits of the trust should not be confined to any particular religious sect or sects.

It will be observed here that the act of incorporation changed in material respects the terms of the trust as set forth in the deed, and also brought the trustees under greater control of the public officials — either the mayor and aldermen, or in lieu thereof, the Common Pleas Court. It also carried the provision under which all the trustees would, sooner or later, be appointed by the mayor and aldermen, or the court. It required political action in the election of the third trustee, but continued for the time being the control in nonpolitical hands.

By deed dated March 24, 1828, William Woodward, Samuel Lewis and C. Cogswell joined in a deed transferring the title to this real estate to the trustees of the Woodward Free Grammar School. The only effect of their deed was to confirm in the corporation the title that had been conveyed to Lewis and Cogswell by the deed of 1826.

By 1830, those interested were considering the establishment of a high school. To further that end, Woodward executed a deed consenting to a change in the purpose of the trust, so that a high school could be conducted with the trust funds. In this deed he authorized the trustees to procure an alteration in their charter "so as to allow them in their corporate character to establish a high school — for the uses and education of that description of children and young men as is pointed out in the first deed above referred to, the said William Woodward declaring hereby his assent to such alteration of the charter aforesaid, as shall by the trustees and their successors in office and by the General Assembly of the state of Ohio, be thought most likely to extend the advantages of learning and science among those who have not the means of procuring such advantages themselves, proportioning the advantages thereof equally in the different wards of the city of Cincinnati, without regarding religions, or opinions or differences of opinion, or any other subject."

Later, in the same year, Woodward conveyed an additional tract of land to Lewis and Cogswell "in consideration of the better educating the rising generations" upon the proviso that a high school building be erected thereon and a high school maintained therein "to be called the Woodward High School of Cincinnati"; and the trustees were directed to make application to the Legislature for authority to transfer the funds of Woodward Free Grammar School for the purpose of erecting and maintaining the high school which was to be managed by five trustees appointed as follows:

"Samuel Lewis and Osmond Cogswell, are hereby empowered to hold their offices during their lives and nominate their successors severally by deed or will duly executed, and their successors are to continue to nominate their successors in the same way forever. And if it shall so happen, by reason of death, resignation, or any other cause, that either of the places of the said two trustees should at any time become vacant, such vacancy or vacancies to be filled by appointments to be made by the Court of Common Pleas of said county every seven years and until his or their successors should be duly appointed. The other three trustees to be judicious men, citizens of the city of Cincinnati, to be appointed by the city council of the said city, to hold their office after such appointment three years and until successors shall be duly appointed; that is, there shall be three persons selected to fill said places and named in the act of incorporation, viz.: Lewis Howell to continue in office three years from the first week in May next, Oliver Lovell to remain in office two years from the same time, and J.P. Foote to remain in office one year from the same time; and at the expiration of their terms as aforesaid, the city council aforesaid shall supply their places by appointment, so that there shall be one appointment each year for the succeeding three years, and so on forever."

The next act was the granting of a corporate charter by the General Assembly. It was, in reality, an amendment of the charter theretofore granted to Woodward Free Grammar School. It incorporated the five persons named in the Woodward deed, conferred upon them the corporate name of The Woodward High School of the City of Cincinnati, and conferred upon them and their successors the usual powers of a corporation. The method of appointing successor trustees of the high school, set forth in the Woodward deed and already set forth herein, was incorporated in the charter. The trust was declared to be for the benefit of children residing in the city of Cincinnati, and such children only as have no parents living within the limits of the city of sufficient ability to provide for their instruction. The same limitation on the powers to dispose of the real estate was continued. As to the duties of the trustees, it was provided:

"It shall be the duty of said trustees to lease the said lands in the most beneficial manner, and as soon as a sufficient sum of money is raised, thereby to locate and erect a commodious building, to be used and occupied as a school house; to procure teachers and professors of good morals, and well qualified to instruct and educate as many of the above described children, as the state of the funds will allow; they shall keep the buildings in good repair; and on the first day in each year shall render a full and true account to the said city council, of all moneys received by them, and all dues and demands owing to them as such, together with an account of all their expenditures and disbursements, and also all surplus moneys in their hands, or in the hands of any treasurer, appointed by them, belonging to said trust; and the said trustees shall have power to appoint annually, some good and responsible person, resident within the said city of Cincinnati, to be their treasurer, requiring of him such security for the faithful discharge of his duties, as they shall deem sufficient. It shall be the duty of such treasurer to receive and keep safely all moneys delivered to him by the trustees on account of the said trust, and to enter the same in a book to be provided for that purpose, wherein he shall also keep an account of all disbursements made by him to the order of said trustees, or otherwise, which book shall be open to the inspection of said trustees; and he shall, moreover, render an account of the same, as well as of all his doings in relation to said trust, on the fifteenth day of December, in each year.

"Sec. 6. That the city council aforesaid shall have power to call upon said trustees for, and compel them to render, on the first day of January in each year, an account of the rents, issues and profits of the said lands, and of all expenditures on account of the said trust, and also of all surplus moneys, debts, dues and demands in their hands, or in the hands of their treasurer, arising out of, and belonging to, said trust; and such account, audited and allowed by said city council, shall be a good and sufficient discharge to said trustees; but in case the said trustees, or either of them, on application made, refuse to render his or their account as aforesaid, then he or they shall be considered as having abandoned the trust, and his or their places shall be filled as hereinbefore directed; and the said city council shall compel the said trustees, by action at law or in chancery, as the case may require, to render the account aforesaid * * *."

The school was made strictly nonsectarian.

The corporation was made, in effect, the successor of the Woodward Free Grammar School with enlarged powers.

The last incorporating act was later amended to authorize the corporation to establish a college department under the name of The Woodward College of Cincinnati, but it was expressly provided that the trustees should not be discharged from any of the duties imposed by the law to which it was an amendment.

As the donor, the trustees and the General Assembly all consented to these various steps, there can be no doubt as to their validity and binding effect. And, therefore, to the extent that the earlier deed or act of incorporation conflicts with the later act of incorporation, the latter must control. As a result, we have a corporation, created for the public purpose of educating poor children, controlled by five trustees, three of whom are nominees of the mayor and aldermen of Cincinnati and the other two nominees of the first donor of property to the corporation until such time as they resign or die without naming their successors, or are removed by the mayor or aldermen for dereliction of duty, whereupon, the mayor and aldermen become the sole appointing power, and all of such trustees as a board are required to account annually to the city council. It should be said here that the right of Lewis and Cogswell to name their successors has long since lapsed. All the plaintiffs claim title to their positions by virtue of appointment by the Common Pleas Court, acting under a law passed in 1883, which will be noticed later.

In 1846, the Legislature passed an act to organize and classify the common schools of Cincinnati, and in this act the trustees and visitors of the common schools were authorized, by and with the consent of the city council, to contract with any person or persons "whether in their individual, corporate or judiciary [fiduciary] capacity, or with any institutions in relation to any funds for school purposes that may be at the disposal of such person or persons, or such institution for the education of all such children in the common schools of said city."

In 1851, a tripartite agreement between the trustees of Woodward college and high school, the board of trustees of the Hughes fund and the Trustees and Visitors of Common Schools of Cincinnati was entered into. This agreement recited the enabling provision of the act of 1846, also, that Woodward college and high school and the trustees of the Hughes fund had property and money intended for the furnishing of "high school education to the poorer portion of youth which they are desirous to unite with the city school fund under * * * a general plan which will secure high school instruction to all the youth of the city of both sexes." The parties then contracted for the establishment of two high schools called Cincinnati Woodward High School and Cincinnati Hughes High School "to be under the direction of a board of trustees" composed of six members selected by the trustees and visitors of the common schools from their number, the five Woodward trustees and two Hughes trustees, "which board shall have the usual power of trustees for the management of said schools." The trustees and visitors of common schools agreed to supplement the income from the Woodward and Hughes funds with sufficient money as "will furnish high schools that will accommodate and educate all the white youth of the city as may apply for admission to such high schools." The board of trustees and visitors retained the power to fix the standard of admission and the curriculum. The power to appoint the teachers and others performing any duty or service connected with the high schools was lodged in the tripartite board which became, in time, to be known as the Union Board of High Schools, and it was given power to recommend salaries, but the fixing and paying of salaries and all other expenses were placed in the trustees and visitors of the common schools and the income from the Woodward and Hughes funds were to be paid quarterly to such city officers as shall have charge of other city funds "to be applied toward the support of the high schools of the city aforesaid." No time was fixed for the continuance of the arrangement, but provision was made for the restoration of the status quo ante upon the failure, neglect or refusal of the trustees and visitors to comply with their engagements. This, however, could only be accomplished by the Woodward trustees paying the board of education the value of the high school building.

In 1883, the General Assembly passed an act amending the act of 1831 to incorporate the Woodward High School of Cincinnati. The only important feature of this amendment was to transfer the power of appointment of all five trustees from the mayor and aldermen to the Court of Common Pleas of Hamilton county and fix their terms at five years.

There was a subsequent amendment in 1895 of the agreement of 1851, in which the purpose recited was "to maintain and increase the friendly relations existing between the board of education and the Union Board of High Schools and to secure for the public common and high school system of Cincinnati unity in government and management." It was then agreed that all high schools should be under the exclusive control and management of the Union Board of High Schools, the funds appropriated by the board of education for high school purposes to be expended by the union board without interference by the board of education, but the Union Board of High Schools was required to account annually to the board of education. The representation of the board of education upon the Union Board of High Schools was increased from six to seven, thereby giving it a majority of its own nominees. The superintendent of schools was given supervision of the high schools with power to appoint and remove teachers so long as that was the law, subject, however, to the consent of the Union Board of High Schools, and if the law was changed so that the power could not be conferred upon the superintendent, then the Union Board of High Schools should appoint and remove teachers. The Union Board of High Schools was given authority to fix salaries of teachers and all other employees. The parties continued the agreement of 1851, except as modified, but fixed no limit to its duration.

The parties continued to operate under the agreement and the modification from 1851 to about 1936. There were, without doubt, during the period some clashes, and the extent of control wavered between the board of education and the Union Board of High Schools, but as the years passed the board of education restricted progressively the scope of the management of the curricular and intermural management by the union board until its function was reduced to little more than that of an advisory body. This resulted not because of any violation of the terms of the agreement or any usurpation of power, but because of a more aggressive exercise by the board of the power conferred upon it. The Woodward trustees disputed this power and finally in retaliation withheld the income from its funds for the last several years. However, the board of education still continues to use the Woodward high school building which it erected on the land conveyed by Woodward to the Woodward college and high school for a high school site and the Woodward trustees have not initiated any proceeding to fix the value of the building.

I think the following observations on the legal relation established by the parties are sound:

(1) As all parties thereto consented to the various deeds and charters executed during the life of Woodward, they were all bound thereby. The provisions of the prior documents were modified to the extent that the latter conflicted therewith. This would not involve the impairment of the obligations of a contract. Section 10 of Article I of the United States Constitution only prevents a state from passing a law impairing the obligation of a contract. It does not prevent the parties from changing the obligation by mutual consent.

(2) The trust as modified was for the purpose of providing nonsectarian education for the children of Cincinnati between 5 and 16 years of age, whose parents could not or would not provide for their instruction — a public purpose, the administration of which the state and its political subdivisions had constitutional power to assume.

(3) From the beginning the purpose was public, and from the beginning Woodward provided for participation of the public, acting directly by election of a trustee, or through the mayor and aldermen, in the administration of the trust.

(4) As Woodward broadened the class of beneficiaries, he increased the participation of the public in the administration of the trust.

(5) Woodward gave the mayor and aldermen power to appoint a majority of the trustees and provided contingencies in which they would appoint all, and those contingencies came to pass long ago, so that for more than a half century the trust has been administered by nominees, either of the mayor and aldermen, or the Court of Common Pleas.

(6) No provision as to duration of the arrangement between the board of education and the trustees of the Woodward college and high school was stipulated, but, by providing that, upon the neglect or failure of the board of education, the Woodward college and high school could cancel it, there was manifested a knowledge that it might not be perpetual and that its duration was dependent upon the faithful observance of its terms by the board of education and the election of the Woodward trustees to terminate it. The power of the board of education to terminate it was necessarily implied, as no board could bind itself or its successor in such a matter.

To sustain the agreement by attributing a lawful intent, the silence of the parties as to the duration of the arrangement should be construed as indicating a purpose to retain that discretion required to sustain the validity of the plan.

(7) No provision for forfeiture upon violation of any term of the trust was made, and no estate in reversion created upon the failure of the trust.

(8) The Woodward trustees have neither paid nor tendered as payment to the board of education the worth of the building erected on the Woodward site nor taken any proceeding to have its worth determined, as provided in the agreement.

The validity of the agreement of 1851 is assailed on two grounds.

It is said that the board of education had no power to surrender control over the expenditures of tax money and to delegate its discretion over the operation of the public schools. For several reasons the basis of the contention is unsound.

In the first place the contract related to education which comes within the police power of the state. Neither the state nor any political subdivision could, by any contract, divest itself of power over that subject matter. And, of course, taxation and tax funds also come within that sovereign power, which, had it been attempted, could not have been bartered away.

In the second place, a careful reading of this agreement discloses that the board of education retained control over the fiscal affairs of the school and also over the entire administration. Although it employed the Union Board of High Schools as an agency, it retained power to control its discretion at all times.

There is no novelty in the thought of combining public effort and funds with private effort and funds dedicated to public purposes. Many instances of such cooperation are recorded in the law books. The local trust created by the will of Charles McMicken is one of the most famous. Perin v. Carey et al., Exrs., 65 U.S. (24 How.), 465, 16 L. Ed., 701. It is true that there the city of Cincinnati was the devisee in trust, but the will provided that the trust should be administered through directors appointed by the municipal government. Under the Woodward deeds and charters in the instant case the conveyance in trust was to trustees appointed by either municipal or county authority. I can see no difference in the extent of public control resulting. And, in the case of the McMicken trust, public funds and property have been combined with the trust funds to create and operate the University of Cincinnati. Incidentally, it should be noted that it was held that there could be no reverter of such trust property, the only effect of the violation of the terms of the trust being to give to a court of equity jurisdiction to compel a restoration of the property to the purposes of the trust. Cityof Cincinnati v. McMicken, 6 C.C., 188, 190, 3 C.D., 409.

The University of Cincinnati is not the only municipal college having its origin in private benefaction later to be maintained by private trust funds combined with public funds raised by taxation. Several other instances are mentioned in Elliott Chambers' College and the Courts, Chapter XII, that chapter being devoted to a consideration of municipal universities. The fact that we are considering a high school and not a college or university can make no difference in the application of the principle. The duty of the state to provide for common and high school education was recognized long before the power to maintain a college or university was conceded.

So our conclusion is that the board of education had power to enter into the agreement of 1851.

Now, was that agreement beyond the power of the Woodward trustees? It is said that it was a diversion of the funds from the purpose of the trust, and that McIntire's Admrs. v. City ofZanesville, 17 Ohio St. 352, requires that conclusion. It is true that it was there held, under the circumstances in that case, as to a trust fund created "for the use and support of a `poor school' or `institution,'" that "any permanent appropriation of the proceeds of such fund, to aid the public schools of the city of Zanesville, and thus lighten the taxes assessed upon the property of the city, would be a perversion of the fund from the legitimate objects of the donation; and a discontinuance of such appropriation will be directed."

But to say that, because the court there held that the permanent appropriation of the fund for the support of the public schools was a diversion of the fund from the purposes of the creator of that trust, we are required to hold that the arrangement in the instant case between the board of education and the Woodward trustees is a diversion of this fund, begs the question. It assumes that the purposes of the trusts and the manner of their administration are the same, which an analysis of the documents refutes.

To start with, there was no permanent appropriation of the Woodward funds and property to public school purposes. In fact there was an express provision for cancellation of the agreement under certain circumstances, one of which being the failure of the board of education to furnish high school instruction to all the youth of the city which, of course, included the "poor children." And there is no suggestion that the board of education has failed to perform this duty and it appears in the record that the board of education has spent several hundred times more of public money than the Woodward income in furnishing high school instruction to all the youth of Cincinnati.

But above and beyond this distinction between the McIntire and Woodward trusts is the disclosed intention of the respective founders as to the manner of administering them. The McIntire will specifically named a private trustee to administer the trust. In no way did McIntire manifest the slightest intention of giving any public authority any part in the administration of the trust. In contrast, Woodward provided for political action and public participation from the beginning. He provided for the election of one trustee at a regular municipal election. Then he made a provision for the selection of a majority of the trustees by the mayor and aldermen, coupled with a provision under which they would select all trustees and this provision became operative long ago. Woodward showed a disposition in favor of public control.

That poor children such as were the objects of his bounty are receiving much more benefit and this through an agency clearly contemplated seems clear. These considerations render inapplicable the case of McIntire's Admrs. v. City of Zanesville,supra, and clearly demonstrate that the trustees were authorized to enter into the agreement of 1851.

I conclude, therefore, that both parties had capacity to enter into the agreement of 1851, and that its provisions were and are lawful in all respects.

One other subject requires consideration before answers to the questions propounded are attempted, and that is whether the special act of 1883 increasing to seven the number of trustees of the Union Board of High Schools nominated by the board of education and conferring the appointing power of the Woodward trustees upon the Common Pleas Court of Hamilton county is valid and binding upon the parties.

In considering this act we should keep in mind that Woodward contemplated that the appointing power would rest at last in public officers, and that the public would have full control of the administration of the trust. We should also remember that all parties, the board of education and the trustees of the Woodward fund at the time, acquiesced in the change and their successors continued to acquiesce therein for almost a half century — and still do. And it should also not be overlooked that the founder of the trust had in mind that the power of appointment might be shifted to the Court of Common Pleas in the event there should be no mayor and aldermen. It should also be noted that the founder had no power to impose this duty of appointment upon any public official. It was political or governmental power to be exercised by the sovereign beyond the control of any individual. It helps to solve the problem by understanding that the effect of the act providing for the appointment by the Court of Common Pleas was to deny that power to the mayor and aldermen.

From all this it would seem that the condition had in substance arisen justifying the exercise of the power by the Court of Common Pleas if it was capable of receiving the power under the Constitution, and if the act purporting to confer such power conforms to the Constitution in other respects.

The constitutional provision (Section 26 of Article II), requiring all laws of a general nature to have a uniform operation throughout the state, does not inhibit special acts to control single transactions or local conditions. 8 Ohio Jurisprudence, 603, Section 466 et seq. This statute seems to fall in that category. The situation was unique and its duplicate could not be found elsewhere in the state. Furthermore, the parties to this action are prevented by estoppel and waiver from raising the question of constitutionality. 8 Ohio Jurisprudence, 180, Section 78 et seq.; 40 Ohio Jurisprudence, 702, Section 10;Armstrong v. Treas. of Athens County, 10 Ohio, 235, 242.

There is no express prohibition against conferring appointing power upon the courts. Such acts have been passed and courts have accepted the burden, and the validity of their appointments have not been questioned. 32 Ohio Jurisprudence, 917, Section 57. Certainly, the appointees are in no position to challenge their own title.

My conclusion is that the power of appointment of the trustees of Woodward college and high school resides in the Court of Common Pleas of Hamilton county.

I come now to a consideration of the substance of the declaratory judgment required by my conclusions.

Before proceeding, however, to do so, it might be well to expressly state that my conclusions sustain all the acts and proceedings of the parties and leave only an interpretation of their meaning and legal effect. There has been no departure from the purposes of the founder of the trust and there would be no departure by a continuance of the arrangement so long as the board of education continues to furnish education for all the children of Cincinnati.

My associates, by attributing to William Woodward a progressive intent to abandon every field of education into which he had encouraged the public to enter and then to explore for virgin soil in the educational domain, now attribute to him an intent to wander outside that field to establish not a trust for educational purposes, but one for eleemosynary purposes, by holding that the fund should be used to pay for the necessaries of life of students attending the University of Cincinnati. I find nothing in the acts of William Woodward upon which to predicate the conclusion that he had any such continuing progressive intent.

Furthermore, the conclusion reached by my associates that the agreement of 1851 was beyond the power of the parties and, therefore, void rests upon the assumption that they tried to bind themselves beyond their legal power, which is an unwarranted assumption. Rather the presumption should be indulged they intended that their cooperation should be within the limits of the law and the construction should be placed upon it that would so limit it. My associates, in effect, say that the parties could not bind themselves in certain respects, but that because they did bind themselves in those respects, the entire agreement is void — which is a classic non sequitur.

The appellants bring in question on this appeal only two of the declarations of the trial court. In the first declaration, the court declared that the provisions of the contract of 1851, providing for tuition-free high schools, were invalid, and that the Woodward trustees had no legal authority to transfer the income to the Cincinnati board of education to apply toward the public schools of the city of Cincinnati. In my opinion, as already stated, the contract is valid and, therefore, the Woodward trustees have the power to cooperate with the Cincinnati board of education in the manner provided in that contract and in that way contribute the Woodward fund to the larger fund of tax money expended for the education of the poor children of Cincinnati.

The other challenged declaration was that the Woodward trustees had no power to use any of the funds to establish or maintain a playground in connection with Woodward High School, or to sell any of the real estate for the purpose of securing funds for that purpose.

In my opinion the Woodward trustees do have the power to expend funds to establish and maintain a school athletic field and playground in connection with Woodward High School, and, if authorized by a court of competent jurisdiction, could sell any of the real estate under their control and reinvest the funds in such an athletic field and playground. Rolfe Rumford Asylum v.Lefebre, 69 N.H. 238, 45 A. 1087. Of course, the fund could not be diverted to the purchase of a public park. However, it is clear that the Woodward trustees are in no position to disturb the present use of the real estate forming the site of Woodward High School. They have taken no steps to have the value of the building determined.

For these reasons, I am of the opinion that the judgment should be reversed and judgment entered in this court in accordance with this opinion.