fessedly entered. Nor does the case present the considerations which determine the liability of a surety upon a negotiable instrument accepted by the payee, thus having the operation and effect intended by the surety. Nor can Black's undertaking be likened to a general letter of credit. The reference to letters of credit is, however, appropriate, because they have been the foundation of many interesting cases upon the subject of the liability of sureties. Counsel seem to agree that guaranties and letters of credit are special or general. If a letter of the former character is accepted and acted upon by the person to whom it is addressed, the undertaking of the surety is complete. If the acceptance is by another, or by part only of those to whom the letter is addressed, there arises no contractual relation, for it is the right of one who contemplates assuming the obligation of a surety to determine not only for whom, but also to whom, he will become bound. If in the present instance Black had addressed a letter of credit to the three parties of the first part offering to become bound for the payment of a balance which might become due from Thompson, and his letter had been accepted and acted upon by two of them, but not by the third, would there be a contract of suretyship between Black and the two acceptors? In the courts below it was not perceived, nor is it here, why Black should choose to be bound to the three parties rather than to two of them, but the admonition recurs, the surety is bound only according to the terms of his contract without being answerable to any one for the reasons which induced him to select its terms. Numerous and interesting cases show that the surety may not be held otherwise, even though the obligation upon which it is sought to charge him is not more onerous than that upon which he be came bound or offered to become bound. In Grant v. Naylor, 4 Cranch, 224, 2 L. Ed. 603, a recovery was denied to John and Jeremiah Naylor & Co. on a letter of credit addressed by the maker to John and Joseph Naylor & Co., although it was shown that there was no such house as that addressed. In the opinion the Chief Justice said: "That the letter was really designed for John and Jeremiah Naylor cannot be doubted, but the principles which require that a promise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony, originate in a general and wise policy, which this court cannot relax so far as to except from its operation cases within the principles." A surety upon a promissory note may interpose as a defense against a holder, who has knowledge of the fact that it was the intention of the parties that it should be discounted by a bank where it was made payable, that the note, after being rejected by that bank, was indorsed and put into circulation contrary to the intention of the parties. Numerous decisions of this court illustrate the scope and force of the rule that the surety is entitled to stand upon the letter of his undertaking, including his designations of the persons who may become his creditors. Stone v. Vance, 6 Ohio, 246; Taylor v. Wetmore, 10 Ohio, 490; Clinton Bank v. Ayres & Neil, 16 Ohio, 283; Knox County Bank v. Lloyd's Adm'rs, 18 Ohio St. 352. The law is a technical science, and, since it is the duty of the courts to administer justice according to the law with reference to which the parties are conclusively presumed to have conducted their transaction, a surety who invokes the protection afforded him by established rules should not be denied that protection upon the ground that his defense is technical. Justice administered according to the peculiar views respecting the natural rights of litigants which may be entertained by persons, who for the time being are engaged in the exercise of judicial functions, would not afford a secure foundation for civil institutions. This case seems clearly to be brought within the principles already stated, and within the decisions cited, by the consideration that, in legal effect, Black's formal guarantee indorsed upon the original contract was never accepted or acted upon by the three parties to whom he had offered to become bound, and to whom he would have been bound if they had accepted and acted upon his offer. The These views lead to the approval of Schoonover v. Osborne Brothers, 108 Iowa, 453, 79 N. W. 263, which differs in no substantial aspect from the present case. very careful and analytical opinion of Deemer, J., in that case collects and classifies many other authorities upon the subject presented, and shows that the reasoning upon which the present judgment is sought to be sustained is fallacious. Judgment reversed, and demurrer to the petition sustained. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, and WIL KIN, JJ., concur. (89 Ohio St. 381) (Supreme Court of Ohio. Feb. 10, 1914.), (Syllabus by Editorial Staff.) 1. WITNESSES (§ 212*)-COMPETENCY-PHYSICIANS "COMMUNICATION." Under Gen. Code, § 11494, providing that a physician shall not testify as to a communication made to him by his patient, á "communication" may be, not only by word of mouth, but by exhibiting any part of the body thereof to the physician for his opinion. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 774; Dec. Dig. § 212.*] 2. WITNESSES (§_219*) MUNICATIONS-PHYSICIANS. attorney or physician may be compelled to testify on the same subject." [2] This qualifying clause we hold to mean that there cannot be a waiver except in two ways: First, by an express consent of the patient, or by the patient taking the stand and voluntarily testifying as to the things and matters communicated to his physician, the latter being held to be in effect an express waiver as to that physician. There being no express waiver nor any testimony by the plaintiff, touching the things and matters communicated to such physicians, whose testimony was excluded, we find there was no PRIVILEGED COм- error. A provision of Gen. Code, § 11494, that a physician may testify by express consent of his patient, and if the patient voluntarily testifies the physician may be compelled to testify on the same subject, requires an express consent of the patient by voluntarily testifying as to the matters communicated to his physician. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 769, 781, 782; Dec. Dig. § 219.*] Error to Circuit Court, Hamilton County. Action by one Holzback against Ausdenmoore and others, executors. Judgment for plaintiff, and defendants bring error. Af firmed. William Sander and Stanley Matthews, both of Cincinnati, for plaintiffs in error. Herbert Jackson, of Cincinnati, for defendant in error. PER CURIAM. We have examined the errors complained of as a ground for the reversal of the judgment below. [1] Upon each of the contentions, save one, the law is well settled against the plaintiff in error. That one contention is the question of the admissibility of the evidence of certain physicians touching the nature and seriousness of the injuries of the plaintiff below. The trial court sustained the objection of the plaintiff below to certain physicians testifying for the defendant below as to a diagnosis they had made of the plaintiff's physical condition. The objection was based on section 11494, General Code, which reads: "The following persons shall not testify in certain respects: * ** Or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient." We hold that a communication by the patient to the physician may be, not only by word of mouth, but also by exhibiting the body or any part thereof to the physician for his opinion, examination, or diagnosis, and that that sort of communication is quite as clearly within the statutes as a communication by word of mouth. The same section (11494) contains the following language: Judgment affirmed. JOHNSON, WANAMAKER, NEWMAN, and WILKIN, JJ., concur. (88 Ohio St. 625; 89 Ohio St. 351) STATE ex rel. WALTON v. EDMONDSON, County Auditor. (No. 14247.) (Supreme Court of Ohio. Sept. 30, 1913.) STATE ex rel. BRENNAN, State Treasurer, v. BENHAM, County Treasurer. STATE ex rel. GRANT v. SAYRE, County Auditor. (Nos. 14433, 14434.) (Supreme Court of Ohio. Feb. 3, 1914.) (Syllabus by the Court.) 1. TAXATION (§ 38*) RESTRICTIONS AS TO PURPOSE-CHARITIES-VALIDITY OF Statute. The act of April 2, 1908 (99 O. L. 56), "to provide for the relief of needy blind," now included in section 2962 to 2970, General Code, as amended February 18, 1913 (103 O. L. 60), is a valid exercise of legislative power not repugnant to the federal or state Constitutions. Cent. Dig. § 67; Dec. Dig. § 38.*] [Ed. Note.-For other cases, see Taxation, 2. TAXATION (§§ 38, 303*)-PRIVATE PURPOSES -VALIDITY OF STATUTE. The act of April 28, 1913 (103 0. L. 833), "to create an institution for the relief of the needy blind," requires the expenditure of public funds raised by taxation for a private purpose and also violates section 5, article XII, of the Constitution. It is therefore unconstitutional and void. [Ed. Note.-For other cases, see Taxation, Cent. Dig. 88 67, 497; Dec. Dig. §§ 38, 303.*] 3. STATUTES (§ 168*)-REPEALING STATUTE— EFFECT OF INVALIDITY. Where an unconstitutional statute contains a clause repealing a prior valid law, for which the later statute was a substitute, the repealing clause will also be held inoperative, in the absence of an expressed intention to repeal the prior law without regard to the substitute. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 244; Dec. Dig. § 168.*] (Additional Syllabus by Editorial Staff.) 4. ASYLUMS (§ 2*)-CHARITIES-PUBLIC SUPPORT INSTITUTION." sup As used in Const. art. 7, § 1, providing that "institutions for the benefit of the insane, blind, shall always be ported by the state," the word "institutions" designates the place where and the means by which the afflictions of the persons referred to may be relieved, although the term "institution" "But the attorney or physician may testify by express consent of the client or patient; and if the client or patient voluntarily testifies, the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-32 [Ed. Note. For other cases, see Asylums, Cent. Dig. § 1; Dec. Dig. § 2.* is sometimes used as descriptive of the estab-1 to compel the issuance of the proper warrant lishment where the operations of an association to him under that statute. The order covered are carried on, and at other times is used to designate the organized body. a period prior to the 12th of August, 1913, to a date subsequent thereto; that date being that on which the statute for the relief of needy blind (103 O. L. 833) became effective. The respondent auditor answered, setting respondent was formerly authorized to issue For other definitions, see Words and Phrases, vol. 4, pp. 3661-3663.] Error to Court of Appeals, Hamilton up the repeal of the statute under which the County. Error to Court of Appeals, Franklin warrants of the kind whose issuance is County. Three proceedings in mandamus-one by the State, on the relation of one Walton, against one Edmondson, Auditor of Hamil: ton County, one by the State, on the relation of one Brennan, State Treasurer, against one Benham, Treasurer of Franklin County, and one by the State, on the relation of one Grant, against one Sayre, Auditor of Franklin County. From judgments of the Court of Appeals, relators bring error. Judgment in first case reversed and rendered, judgment in second case affirmed, and writ of mandamus prayed for in the third case allowed. Practically the same subject-matter being involved in the three cases as above entitled, they are considered together. sought to be compelled, and also, by way of separate defense to the entire claim of relator, the making of the demand by the treasurer of state upon the treasurer of Franklin county for the payment and transfer of the entire blind-relief fund of Franklin county to said treasurer of state. To this answer a general demurrer has been interposed here. Alfred Bettman, of Cincinnati, for plaintiff in error in No. 14247. Thomas L. Pogue, Pros. Atty., John V. Campbell and Charles A. Groom, all of Cincinnati, for defendant in error in No. 14247. T. S. Hogan, Atty. Gen., and H. S. Ballard and C. D. Laylin, both of Columbus, for plaintiff in error in No. 14433 and for defendant in error in No. 14434. Edward C. Turner, Pros. Atty., of Columbus, J. M. McGillivray, of McArthur, and H. C. Sherman and Mr. M. B. Earnhart, both of Columbus, for defendant in error in No. 14433. Edward C. Turner, Pros. Atty., of Columbus, J. M. McGillivray, of McArthur, and H. C. Sherman, of Columbus, for relator in No. 14434. In cause No. 14247 the relator sought to compel the auditor to pay him the quarterly payment due him from the blind-relief fund of Hamilton county, in accordance with the provisions of the statute now included in sections 2962 to 2970, General Code. It is conceded that the relator is entitled to the writ prayed for unless the statute referred to is unconstitutional. The common pleas court and the Court of Appeals both held the JOHNSON, J. (after stating the facts as statute unconstitutional, and judgment was above). [1] The constitutionality of two stat accordingly entered. The proceeding here is utes is involved in this case, viz.: The act of to reverse the judgments of the lower courts. April 2, 1908, now included in section 2962 to In the case of State ex rel. Brennan v. Ben- 2970, General Code, with the amendments ham, County Treasurer (No. 14433), the re- thereto, and the act of April 28, 1913 (103 0. lator sought to compel the county treasurer of L. 833), which became effective August 12, Franklin county to transfer and pay over to 1913. As to the first statute, the Hamilton the state treasurer all moneys in the former's county courts held it to be unconstitutional. possession arising out of levies made in They entertained the view that the case was Franklin county, by the commissioners there- ruled by Auditor of Lucas County v. State ex of, for the relief of the needy blind. Defend- rel. Boyles, 75 Ohio St. 114, 78 N. E. 955, 7 ant answered, alleging the unconstitutionali-L. R. A. (N. S.) 1196. In that case there was ty of the act under which the demand was an effective expression of the invalidity of made, the existence of outstanding orders for legislation requiring the expenditure of pubthe relief of needy-blind persons issued under authority of pre-existing law, by proper officers, and that there were claims against the funds in the hands of the defendant which should be provided for and paid out of said fund before any part should be transferred. The relator interposed a general demurrer, which was overruled by the Court of Appeals, and judgment was entered in favor of the defendant. The case of State ex rel. Grant v. Sayre, Auditor (No. 14434) is an original action brought in this court on the relation of John M. Grant, a blind person, holder of an order for relief under the blind-relief law of 1908. The relator prayed for a writ of mandamus lic funds raised by taxation, for a purely private purpose. The statute involved in that case provided that all male blind persons over the age of 21 years and all female blind persons over the age of 18 years, who had been residents of the state for five years and of the county for one year and had no property or means with which to support themselves, should be entitled to and receive not more than $25 per capita quarterly, from the county treasury, on the warrant of the county auditor authorized by the probate judge, and that under no condition or circumstance should the beneficiary lose his or her benefits or residence by or through removal to any home or institution for the blind not main tained by said county or state. In the anal-, ness, where possible, is one to prevent the ysis of that statute, the court held it to be person from becoming such charge. The ennot a statute making provision for public tire matter is left to the continuing and imrelief to poor persons, but really an act pro- perative supervision of the board of county. viding for the giving of a bounty to a cer- commissioners. Every safeguard has been tain selected class of persons. It is pointed adopted to secure the application of the out in the opinion. money to the support of the individual and to prevent him from becoming a public charge. It is not an indeterminate annuity, unlimited in time or uncertain in its application. The express object and the practical provision of the enactment is to furnish relief to the blind who are poor and needy. It is not questioned that the relief of the poor is a proper public purpose. "That no provision is made in the act to insure the application of the money to the support of the individual, or to prevent him from becoming a public charge, or in any manner to control its use by him. The act does not direct that the payments shall continue during the lifetime of the beneficiary, nor does it limit the time, needs of the donee, or provide for any subsequent inquiry. It is an indeterminate gratuitous annuity, a gift pure and simple, and, being so, the Legislature is without authority to make it from the public funds." In the law which is included in sections 2962 to 2970, General Code, whose validity is here in question, the creation of a blind-relief commission is provided for, whose powers have, by amendment passed February 18, 1913, been conferred upon the commissioners of the several counties. Under this law any person of either sex who, by reason of loss of eyesight, is unable to provide himself with the necessities of life, who has not sufficient means of his own to maintain himself, and who, unless relieved as authorized by these provisions, would become a charge upon the public or upon those not required by law to support him, is entitled to its benefit, if he has become blind while a resident of the state and has been a resident of the county for one year. The law further provides for the surgical removal of blindness, where it is possible. Section 2967 provides that, if the commission is satisfied upon testimony that the applicant is entitled to relief thereunder, it shall issue an order therefor, in such sum as it finds needed, not to exceed $150 per annum, and "such relief shall be in place of all other relief of a public nature." Section 2968 provides that the commissioners may at any time during the year inquire into the qualifications, examine as to the disability and needs of any person theretofore placed on such blind list, and increase or decrease the amount within the limits prescribed; and in case the board finds that any person is not qualified to draw further relief, or that such disability has been removed, in whole or in part, then the board may, at any time thereafter during such year, modify or change the amount theretofore found necessary for such relief, or remove such person from the list qualified to draw any money for relief. It will therefore be seen that this statute seems to have been drawn for the purpose of carefully avoiding the defects in the statute of 1904, pointed out by the court in Lucas County v. State, supra. The relief provided for in the later statute is limited to those who are, or will become, charges upon the public, or upon those not required by law to support them, and is the only public relief that may be given to them. The provision for surgical removal of blind Judge Cooley in his work on Taxation (3d Ed.) p. 204, declares that: "The support of paupers and the giving of assistance to those who, by reason of age, infirmity, or disability, are likely to become such is, by countries, a public purpose.' the practice and common consent of civilized The power to tax for a public purpose is It is a legislative power which by section 1, part of the inherent sovereignty of the state. article II, of the Constitution is vested in the General Assembly. The public purposes and objects to which it is applicable must rest in the discretion of the General Assembly, except as limited by the restrictions imposed by the Constitution. Gholson, J., in Baker v. Cincinnati, 11 Ohio St. 542, says: that the legislative power, as conferred by the "It will be observed that the provision is not Constitution, shall be vested in the General Assembly, but that the legislative power of this state shall be vested. That includes all legislathe state government may require, and we must tive power which the objects and purposes of look to other provisions of the Constitution to see how far, and to what extent, legislative discretion is qualified or restricted." See, also, Mason v. State, 58 Ohio St. 49, 50 N. E. 6, 41 L. R. A. 291. The court will only intervene to prevent an unreasonable or arbitrary exercise of this discretion, or a result in contravention of the fundamental law. Mr. Justice Miller in Loan Ass'n v. Topeka, 20 Wall. 655, 22 L. Ed. 455, in which case it is held that the right to tax can only be used in aid of a public object, says: "And, in deciding whether, in the given case, the object for which taxes are assessed falls must be governed mainly by the course and upon the one side or the other of this line, they usage of the government, the objects for which taxes have been customarily and by long course of legislation levied." Outdoor relief of the poor, as distinct from relief in institutions, was fixed as part of the policy and practice of Ohio 100 years ago. It was early decided in Ohio that the whole subject of relieving the poor, where it is done in pursuance of law, is of statutory origin and depends on statutory regulations. Trustees of Cincinnati Tp. v. Ogden, 5 Ohio, 23; Trustees v. White, 48 Ohio St. 577, 578, 29 N. E. 47. In Trustees v. Ogden, it was held that the overseers of the poor of the proper township "The supreme power of the state, by legislative enactment, has imposed the obligation.' The statute involved in that case was passed in February, 1816. Under section 5 it is provided that: "Any person who becomes blind while resid ing in this state and who has continuously resided in this state for five years prior to his application for the relief herein provided, who, by reason of loss of eyesight, is unable to provide himself or herself with the necessaries of life and has not sufficient means of his or her own so to do, shall be deemed entitled to the benefits and support of the said institution as herein provided." Section 6 provides for the application by the person claiming the relief to the probate In Lucas County v. State the court remarks court; and section 7 provides that the applithat: "Section 1 of article VII, which provides that institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state, is neither a grant nor a limitation of power, but a recognition of the fact that by enlightened people such classes are treated as wards of the state." Such institutions have been fostered and supported for blind children, in order that they may be there trained, educated, and fitted to assist in their support, as well as to enable them to have in some degree the pleasures and advantages of intellectual development. But there has been no law providing for the maintenance of adult blind persons in such institutions. These suggestions would seem to indicate the conception of duty, the public policy, and the general course and usage of our state touching the subject. Since the Constitution has included the blind among those who shall be the objects of the solicitous consideration of the state, and since it has ever been the policy of the state to give assistance to the poor, infirm, and disabled, legislation which defines and classifies poor or needy blind persons as beneficiaries of its provisions and which does not make a capricious, arbitrary, or unreasonable provision should not be denounced by the courts as an unauthorized classification repugnant to the constitutional requirement of uniformity and equality in the operation of laws. The Constitution contains no provision requiring that the relief of the poor shall be conducted and provided for in institutions, nor does it prohibit outdoor relief of the poor. In fact, the entire system for the establishment and maintenance of benevolent institutions and benevolent works of the state has proceeded upon the idea that the Legislature, in the exercise of its general legislative power, was vested with authority to do whatever in its judgment the public welfare demanded, always provided that the thing done should be for a public purpose and should not take public money for the advancement of a purely private object. [2] This brings us to a consideration of the statute passed in April, 1913 (103 O. L. 833). In this act it is provided that there shall be established and maintained in the city of Columbus a state institution, to mean under the act a board for the relief and benefit of the needy blind, the members of which shall cation shall be heard and determined by the probate court, that the probate judge shall thereupon determine the amount of the relief that the applicant is entitled to under said proof, not exceeding the sum of $240 per annum, and "his findings upon said facts shall be final and conclusive unless reviewed, set aside or modified by the board at their discretion." Section 8 provides for the levying of taxes for the purpose of creating a fund for the blind as in the act provided, and also contains the following clause: "After the passage of this act and on the demand of the state treasurer the treasurers of the respective counties shall transfer and pay over to the state treasurer all moneys in their possession or that may thereafter come into their possession under present levies for the relief of the blind." Section 10 repeals sections 2962 to 2970 of the General Code, which constitute the act of 1908, herein before discussed. [4] We think it clear that by the use of the word "institutions" in section 1 of article VII of the Constitution it was intended to designate the places where, and the means by which, the afflictions of the persons referred to may be relieved, although the term "institution" is sometimes used as descriptive of the establishment where the operations of an association are carried on, and at other times it is used to designate the organized body. Gerke v. Purcell, 25 Ohio St. 244. We do not think that the use of the term "institution," in the statute under examination here, in connection with the board which shall administer the relief provided for, contributes anything to the validity of the law. An examination of the law of 1913 will disclose that it is open to many of the objections pointed out by this court in Lucas County v. State, as well as others. There is a broad provision in section 5 that any person, who, by reason of loss of eyesight, is unable to provide himself or herself with the necessaries of life and has not sufficient means of his or her own so to do, shall be entitled to the benefits of the law. Therefore such a person, although he might have children who would be able and be compelled by law to support him, or who actually would be supporting him, or who might have friends or relatives who would be willing to support him, or who would be actually doing so at the |