Champaign Co. Bank v. Smith.

community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the state to abandon it does not appear."

To the same effect is the language of the court in McCulloch v. Maryland, 4 Wheat. 428, and in Nathan v. Louisiana, 8 How. 82. In Phil. & Wil. R. R. Co. v. Maryland, 10 Bow. 393, Chief Justice Taney says, in delivering the opinion of the court: "This court on several occasions has held that the taxing power of a state is never presumed to be relinquished unless the intention to relinquish is declared in clear and unambigious terms."

The position that the tax in question does not violate the contract of the state to pay interest at a given rate upon the bonds, and the views we have expressed on that subject, are strengthened by the case of Commissioners etc. v. Chapman, 2 Rawle, 77, where it was held by the Supreme Court of Pennsylvania, that a tax imposed under the authority of the legislature, upon a judge's salary, was not in violation of a provision in the state constitution which prohibited the diminishing of such salary during the term of office. The court, per Gibson, C. J., says: "The *prohibition in ques- [57 tion is to be restrained to laws which have a reduction of the salary for their object, and not for their consequence. For the bona -fide purpose of contribution, a reasonable portion of the salary, like any other part of his property, may be applied to the public exigencies."

Without further reference to authorities, which we think are nearly, if not quite, uniform on the subject, we hold that the taxation of the bonds in question involves no violation of a contract, and that the power of the state to tax them, equally with other property, having never been expressly surrendered, still exists in full force.

The objection made by the petition to the constitutionality of the tax law of 1852, in respect to the basis which it provides for the taxation of banks, is fully met by the decision of this court in Exchange Bank of Columbus v. Hines, 3 Ohio St. 1.

Nor does it affect the defendant's justification, that at the time he took the summary measures complained of, another proceeding instituted by him for the collection of the same taxes, under the fifty-first section of the tax law, was pending in the court of common pleas, and that the bank had filed its answer therein. For the law of 1853 took from the defendant the power of proceeding

The State, etc. v. Trustees of Tp. 9, etc.

further under the said fifty-first section, and substituted for that process a much more summary one, which it imperatively required him to adopt. If this law was valid, obedience to it became his duty.

Demurrer sustained, and cause remanded.

BARTLEY, C. J., and SWAN and BRINKERHOFF, JJ., concurred. BARTLEY, C. J., concurred in the judgment, upon the ground, not only that the power of taxation was not in this instance surrendered by mere implication, but he denied that the legislature had the authority to surrender the power of taxation to any extent by express exemption, whether in the nature of a contract or otherwise.

BOWEN, J., dissented.

58] *THE STATE OF OHIO, ON THE RELATION OT THOMAS SHARP AND OTHERS, v. THE TRUSTEES OF TOWNSHIP 9, RANGE 15, OHIO COMPANY'S PURCHASE.

The beneficiaries of the fund "for the purposes of religion," arising from the rent of section 29, in the Ohio Company's purchase, being designated by statute as "every denomination of religious societies:" Held

1. That persons having no system of religious faith, written or traditional, can not be deemed a denomination or sect.

2. That a society having no system of public worship or religious services as a sect or denomination, and being organized for the purpose of maintaining a library, and being in fact a library association merely, is not a religious society within the terms of the statute above mentioned.

MANDAMUS. Reserved in Meigs county.

On the first day of November, 1851, the relators, Thomas Sharp, Jun., Elias P. Davis, and William Green, filed in the Supreme Court of Ohio, for the county of Meigs, their petition for a mandamus, setting forth "that they are members and trustees of a religious society in Columbia township, being original surveyed township No. 9, of range No. 15, in the Ohio Company's purchase, in Meigs county; that said society was organized in 1830, and then gave itself the name of 'The First Moral Religious Society of Co

The State, etc. v. Trustees of Tp. 9, etc.

lumbia Township;' by which name it still exists and is known, having regularly kept up its organization ever since. That up to the year 1849, said society regularly received its dividend, or proportion of the rents of ministerial section 29, appropriated to the support of religion in said township, as they were entitled and still are entitled to do. That on the first Monday of January, A. D. 1850, in order to draw, and to enable the trustees of said original surveyed township to make a dividend to said society, of the rents of 1849, Joshua Wood, who had been appointed, and was agent of the society for that purpose, as well as the secretary of said society, produced and presented to said trustees of the township a duly certified certificate of the names and number of the members of said society, *above fifteen years of age, and residing in said township; [59 which list was received and approved by said trustees, showing the said number of members to be, as it was, 186; but that the said rents of 1849, not having been collected from the treasurer until after the said trustees went out of office in the spring of 1850, the said dividend was not struck or paid, or ordered to be paid, by them; that their successors in office, and the present trustees of said township, Adam Bratton, Joshua Wood, Captain, and Joseph Clive, refuse to make or pay, or order the treasurer of said township to pay said dividend, on the ground, and alleging that said society is not a religious society, and therefore not entitled to the And these relators show, that their said agent presented to said township trustees a like certified list of their members, on the first Monday of January, 1851, showing the number of their members then to be 174, which said trustees likewise received and retained without objection thereto. That although the said rents, for the years 1849 and 1850, are now in the hands of the treasurer of said township, and the same, or at least that part thereof payable to said society, amounting to seventy-three dollars, as relators are informed and believe, has not been paid over or expended by said trustees; and although the said society, by its said agent, has often called upon said present trustees of said township and requested payment thereof; yet they refuse to pay, or cause to be paid, the same or any part thereof, and also refuse to give any satisfactory information as to the amount thereof, the amount due other societies, or the amount of rents so collected."

same.

In accordance with the prayer of the relators, an alternative writ of mandamus was, on the 19th of November, 1851, issued out of

The State, etc. v. Trustees of Tp. 9, etc.

the Supreme Court of the county to said trustees of said township, commanding them to pay over, or cause or order to be paid over to said society, or its lawfully constituted agent, forthwith, the said sum of seventy-three dollars, or such sum as may be the dividend or proportion of said rents, for the years 1849 and 1850, of said society, or to show cause, by the first day of the next term of said court, why they have not paid the same.

The defendants, still refusing to pay the dividend sought by the 60] *relators, returned the alternative writ with an answer, setting forth:

"That the said society, on whose behalf the said relators have instituted and now prosecute this writ, entitled, 'The First Moral Religious Society of Columbia Towhship,' is not a religious society, according to, and within the true sense, meaning, and intent of the ordinance of Congress, of July 23, A. D. 1787, providing that the lot No. 29 in each township, or fractional part of a township, should be given perpetually for the purposes of religion, and the grant and laws in pursuance thereof and in accordance therewith, and the trust thereby created and provided."

The relators reply, that "said society is a religious society within the said intent, sense, and meaning of said ordinance, grant, and laws."

The issue thus made was, with the proofs, submitted to the district court of Meigs county, as the successor of the Supreme Court of the county, and the court found the following facts, specially:

"That the said First Moral Religious Society was organized in the year 1830, under and in pursuance of the act entitled 'an act for the incorporation of religious societies,' passed February 5, 1819. That the society adopted a constitution, of which the following is a copy:

'Constitution of the Moral Religious Society, Columbia Township, Meigs County, Ohio.

'Whereas religion and morality are generally acknowledged as essentially requisite to the well-being, good order, and happiness of society: Therefore, to better promote these great sources of human happiness, we form ourselves into a religious society, agreeably to the act of Ohio for the incorporation of religious societies, passed February 5, 1849, to be governed by different acts of Ohio for the incorporation of religious societies, and the following articles, to wit:

The State, etc. v. Trustees of Tp. 9, etc.

'ARTICLE 1. This society to be known by the name of the First Moral Religious Society, in the township of Columbia, Meigs county, Ohio.

ART. 2. The society shall appoint three trustees, one [61 clerk, and one agent, who shall be treasurer, to be elected by ballot. 'ART. 3. It shall be the duty of the treasurer to take charge of and manage the business of the society agreeably to these articles and such by-laws and regulations as the society shall from time to time establish. The clerk shall make a fair and accurate record of all public proceedings; likewise of all amounts, receipts, and expenditures of the society; the agent to perform such duties as the society shall direct, and as treasurer to receive and safely keep the funds of the society which are to be at the disposal of the society. 'ART. 4. All moneys or funds that shall be expended shall be by the order or direction of the society, and drawn from the treasury on the order of the trustees, which shall be countersigned by the

clerk.

'ART. 5. The officers of the society shall meet on the last Saturday in April annually, and settle up all business of the preceding year.

'ART. 6. The trustees, or, if they shall refuse, any three members, shall have a right to call a meeting of the society by setting up notice in three public places in the township.

'ART. 7. This society shall have a right at all times, two-thirds concurring, to alter, amend, or change these articles; and shall any office become vacant, the trustees, or should there be but one, that trustee and the clerk shall fill the vacancy.'

"Which constitution was signed by its members present at its first organization, being thirty in number, and by others who, from time to time, have become members since. That the society have kept up their organization ever since, its present members numbering one hundred and twenty-four; that a portion of the ministerial moneys, payable to religious societies in said Columbia township, was regularly paid to them, as such religious society, from the time of their organization until the accruing of the funds about which the present controversy exists; that only three dollars of said moneys paid to said society have been expended for preaching, the balance having been appropriated for the *purchase of books for a library [62 and for gratuitous distribution. That the said society has, in pursuance of its resolutions to furnish each destitute head of a family among its members with a copy of the Bible, and each young man and woman with a pocket copy of the New Testament, distributed seventy-two Bibles and seventy-two Testaments; that the remain