Walker v. City of Cincinnati et al.

rent of authorities in other States, that these acts are constitutional. Upon a careful examination of our present constitution, and a comparison of it with the constitution of 1802 and the adjudications of our courts under it, the case appears to our minds clear of doubt.

If, however, the case were doubtful, we should not be justified in pronouncing the acts of the legislature void. The presumption must always be in favor of the validity of the laws enacted by the State legislature, if the contrary is not clearly demonstrated.

The incompatibility must be clear to warrant the setting aside of an act of the legislature duly passed. (C. W. and Z. R. R. v. Commissioners of Clinton County, 1 Ohio St. 77; Lehman v. McBride, 15 Ohio St. 591; 10 Ohio, 235; 11 Ohio St. 641.)

In Lehman v. McBride, our Supreme Court declared "that while it was the right and the duty of the judicial tribunals to give full force and effect to the organic law of the State, and, therefore, to declare null and void any attempted acts of legislation which contravene the limitations imposed by the constitution upon legislative power, yet such judicial interference can not be justified in doubtful cases.

Such is the uniform current of judicial authority. Mr. Cooley, in his work on Constitutional Limitations, 87, 88, lays down the same rule.

It was said in the case of Sharpless v. Philadelphia, 21 Penn. St. R. 164, which arose from an attempt to resist a tax levied to pay a railroad subscription, that an act resting in the discretion of the legislature will be pronounced void, "only when it violates the constitution, palpably, plainly, and in such a manner as to leave no doubt or hesitation in our minds."

And in Cheney v. Hooser, 9 B. Mon. 345, the court declared that a "tax must be considered valid, unless it be for a purpose in which the community taxed has palpably no interest."

Walker v. City of Cincinnati et al.

We are not at liberty to use our judgment as to what is judicious for the State to enact, or for the people of the city to vote. Can we assume judicially that the people of this city have no interest in the Southern Railroad, contrary to the solemn act of the legislature, whose duty it was to pass on this very question, and contrary to the vote of the people? Is this a case in which we can hold that the State legislature has clearly gone beyond its authority? We think not.

The objection has been suggested that the Southern Railroad is to extend a great distance from Cincinnati, and beyond the limits of the State of Ohio. The objection is plausible. But power has often been granted to cities to operate beyond their corporate limits in order to secure something essential to their welfare. The city of New York was authorized to bring the water of the Croton river a distance of forty miles, at the cost of $11,000,000; nor can we suppose that the exercise of such authority for such a purpose would have been prevented if the Croton aqueduct had crossed the line of a State.

Cincinnati has, in several instances, exercised authority granted by the legislature to make costly improvements beyond the corporate limits. The House of Refuge was built under such a law. The Infirmary was beyond the limits, also the Work-house.

The city was authorized to expend funds in the purchase of stone coal in the mines which are not located within the corporation, but in different States, " and in all the necessary agencies for the procuring, transporting, and delivery of said coal" to the city, for the purpose of protecting the citizens against exorbitant prices in the times of scarcity.

Cincinnati, under a law of the legislature, loaned to the Ohio and Mississippi Railroad Company, whose improvement lay principally beyond and outside of the State of Ohio, a large sum of money, and afterwards exchanged its bonds for the stock of the company.

Walker v. City of Cincinnati et al.

Under a like law of the legislature, the city of Cincinnati has already invested $150,000 in the railroad from Cincinnati to Lexington, in the same general direction as that contemplated for the Southern Railroad, and altogether outside the State of Ohio.

If there were a lake of good water on the south side of the Ohio river, and if the legislature and the city itself were of the opinion that the welfare of the city required that an aqueduct should be constructed by the city to draw pure and wholesome water from that source, and the proper legislation were had in Ohio and Kentucky, it can not be doubted that the city could raise the money by taxes, under the authority of such legislation, to do the work.

The fact that it is expected that the Southern Railroad will extend beyond the State line a much longer distance, or that it is not water which is to be drawn by it to Cincinnati, does not change the principle. We do not say that this principle could not be so abused as to require the interposition of the judiciary to restrain it. But we have no evidence on which we can so find in the present case.

The opinion of Judge Cooley in the case of The People ▾ Salem, in the Supreme Court of Michigan, is not inconsistent with the decision we now make. That opinion decided that the levy of a tax to raise money to give to a railroad company, either by loan, or by subscription to the capital stock, to help construct its road, is not a proper use for the taxing power, because it is giving the public fund to a private corporation. (9 Am. Law Reg. 487.)

It has no application to a case where the municipal corporation itself constructs a public work essential to its own welfare, as the learned judge has himself declared in an opinion published since that decision, in which he says, "that the power of cities in Ohio to construct works of internal improvement, with legislative permission, has been settled by judicial decision," and "that there is nothing in the present constitution of Ohio designed to prevent the local authorities from levying taxes for the construction of

Walker v. City of Cincinnati et al.

railroads where their own agencies are employed for the work." Indeed, the opinion coincides entirely with that which we have expressed. Nor is the case of Whiting v. The Sheboygan Railroad Company, in the Supreme Court of Wisconsin, as published in 9 Am. Law Reg. 156, in conflict with our opinion as now announced.

In that case, Dixon, Judge, giving the opinion of the court, held that a municipal corporation could not, under the constitution of that State, loan its funds to a railroad corporation, although he expressed the opinion that it might subscribe to the capital stock of the company, because it became to that extent owner of the improvement, and such ownership made it public property.

It is not necessary that we should consider any such distinction. But we may add that we have found no authority, and have been referred to none, inconsistent with the principles we have expressed.

Upon the whole case, we hold that "the act relating to cities of the first class, having a population exceeding one hundred and fifty thousand inhabitants," passed May 4, 1869, and the act of March 25, 1870, supplementary thereto both of which are recited in the petition, are constitutional and valid—in which opinion we are unanimous.

STORER, J. It might be supposed, in a case of so much importance, that each of the judges would announce an opinion; but Judge Taft had so exhausted the subject, and given the individual views of his associates so fully, combining them with his own, that it is scarcely necessary they should do more than subscribe to his opinion.

There was one idea, however, it might be proper to rofer to here, by the way of illustration, as it was suggested when the case was before the judges in the consultation room. Suppose it was necessary to build a bridge across the Ohio river at this point, could not the legislature au thorize the city of Cincinnati to build it, provided the State of Kentucky would permit the abutments on that side to

C. S. C. REP.-9

Donner et al. v. Dayton and Cincinnati R. R. Co.

be put up? It did not appear to the court there could be any doubt on that point.

HAGANS, J. The present case has been under advisement with the General Term since the month of October; the whole subject has been most carefully considered, in view of the magnitude and importance of the questions involved, as well as the discussion of them that has been had, not only before the court but elsewhere. The result reached is entirely satisfactory to each member of the court.

GEORGE E. DONNER ET AL., Plaintiffs, v. THE DAYTON AND CINCINNATI RAILROAD COMPANY, Defendant.

A railroad company, chartered by special act of the legislature, empow ering the directors, among other things, to transact all the business of the company and to sell and convey real and personal estate, and the right to complete any part of the road and put it in operation which the interests of the road may require, and having a choice of several routes and termini, may sell and convey to a competent vendee a portion of its right of way upon which no work has been done for a money consideration, and in satisfaction of its mortgage indebtedness on its whole line leaving to its creditors the part of its road-bed, upon which the bulk of its means has been expended.

Such a sale and conveyance are not ultra vires, and the corporation is not thereby destroyed.

The vendee of this right of way having acquired and enjoyed all its benefits shall not afterward be allowed to foreclose the mortgage, though he still holds the bonds which the vendor is entitled to have canceled. The mere fact that the property of the corporation was in the hands of a receiver at the time of the sale, can not affect the transaction if bona fide.

RESERVED FROM SPECIAL TERM.-In February, 1847, 1848, and 1849, the legislature passed several acts by which the Dayton and Cincinnati Railroad Company became incorporated. It was known generally as "The Short Line Railroad," and is so designated. It had power to construct a