Walker v. City of Cincinnati. it is an encroachment upon the functions and powers conferred by the State constitution on other departments of the government, and therefore impliedly withheld from the general assembly. The only questions, therefore, with which we have to deal, are: 1st. Whether the act is within the general grant of legislative power which the constitution declares to be vested in the general assembly; and, 2d. Does it contravene any of the limitations upon the exercise of legislative power, which are either expressed or clearly implied in any of the provisions of that instrument. And before we can answer the former question in the negative, or the latter in the affirmative, our convictions must be clear and free from doubt. Lehman v. McBride, 15 Ohio St. 573; C.W. & Z. R. R. Co. v. Com. of Clinton Co., 1 id. 77, and authorities there cited. Let us then consider, first, whether this act is within the general scope of legislative power, independent of special constitutional prohibition. That it is within the legitimate scope of legislative power to authorize a municipality of the State to aid in the construction of a public improvement such as a railroad, by becoming a stockholder in a corporation created for that purpose, and to levy taxes to pay the subscription, must be regarded as fully settled in this State by repeated adjudication. In the case of C. W. & Z. R. R. Co. v. Com. of Clinton County, 1 Ohio St. 77, the subject was very fully considered; and it was held that, as the State may itself construct roads, canals, and other descriptions of internal improvement, so it may employ any lawful means and agencies for that purpose, among which are private companies incorporated for the construction of such improvements. And it was said that, for much stronger reasons, counties might be authorized to construct works of a similar kind, of a local character, having a special relation to their business and interests. And as the State might construct or authorize the counties to construct these works entire, or create corporations to do it entire, it was held that, as a question of power, each might be authorized to do a part. The validity of subscriptions to the stock of railroad corporations made by counties, cities, towns and townships of the State, under special legislative authority, has been drawn in question in many cases which have since come before this court, and in none of them has the authority of the legislature to grant such power of subscription been doubted. Steubenville & Indiana R. R. Co. v. Trus Walker v. City of Cincinnati. tees, 1 Ohio St. 105; Loomis v. Spencer, id. 153; Cass v. Dillon, 2 id. 607; Thompson v. Kelley, id. 647; Ohio ex rel. Moran v. Commissioners of Clinton Co., 6 id. 280; State ex rel. Garrell v. Van Horne, 7 id. 327; State ex rel. Smead v. Trustees of Union Township, 8 id. 394; Trustees of Paris Township v. Cherry, id. 564; Treadwell v. Commissioners, 11 id. 183; S. C., 12 id. 596; Goshen Township v. Shoemaker, id. 624; Commissioners of Knox Co. v. Nichols, 14 id. 260; Fosdick v. Village of Perrysburgh, id. 472; Shoemaker v. Goshen Township, id. 569. And the cases in which such legislative authority has been upheld by the courts of last resort in other States are too numerous even for reference. A list of more than fifty of such cases may be found in Judge COOLEY's treatise before referred to, p. 119, note 4. If we even admit that all these decisions have been unwise, yet it is clearly too late to overrule them in this State. Were the question a new one, and properly determinable by the judgment of a court, we should perhaps concur in opinion with Judge REDFIeld, that subscriptions for railway stock by cities and towns do not come appropriately within the range of municipal powers and duties. Yet he is constrained to add that "the weight of authority is all in one direction, and it is now too late to bring the matter into serious debate." 2 Redf. on Railways, 398, 399, note. And if, in the absence of constitutional prohibition, a municipal corporation may be authorized to aid, by stock subscriptions, in the construction of a railway which has a special relation to its business and interests, upon what principle shall we deny that it can be authorized to construct it entirely at its own expense, when its relation is such as to render it essential to the business interests of the municipality? And upon the question of fact whether a particular road is thus essential to the interests of the city, this court in the case of the C. W. & Z. R. R., already referred to, quote approvingly from the case of Goodin v. Crump, 8 Leigh, 120, in which it was said: "If then the test of the corporate character of the act is the probable benefit of it to the community within the corporation, who is the proper judge whether a proposed measure is likely to conduce to the public interest of the city? Is it this court whose avocations little fit it for such inquiries? Or is it the mass of the people themselves the majority of the corporation, acting (as they must do if they act at all) under the sanction of the legislative body? The latter assuredly." And in Sharpless v. Mayor of Philadelphia, 21 Penn. St. 147, it was Baid by C. J. BLACK: "If the legislature may create a debt and lay taxes on the whole people to pay such subscriptions, may they not with more justice and greater propriety, and with as clear a constitutional right, allow a particular portion of the people to tax themselves, to promote in a similar manner a public work in which they have a special interest? I think this question cannot be answered * in the negative." * I cannot conceive of a reason for doubting that what the State may do in aid of a work of general utility, may be done by a county or city, for a similar work, which is especially useful to such county or city, provided the State refuses to do it herself, and permits it to be done by the local authorities." The question in that case was upon the validity of subscriptions of stock made by the city of Philadelphia in aid of two railroads. One of these was the Hempfield road, which had its eastern terminus at Greensburg, three hundred and forty-six miles west of Philadelphia. Both subscriptions were sustained, and the court said: "It is the interest of the city which determines the right to tax her people. That interest does not necessarily depend on the mere location of the road." * * But it is not our business to determine what amount of interest Philadelphia has in either of these improvements. That has been settled by her own officers and by the legislature. For us it is enough to know that the city may have a public interest in them, and that there is not a palpable and clear absence of all possible interest perceptible by every mind at the first blush. All beyond that is a question of expediency, not of law, much less of constitutional law." By the act under consideration, no railroads are authorized to be constructed, except such as have one of their termini in the city which constructs them. And that a city has no peculiar corporate interest in such channels of commerce as lead directly into it, is a proposition which, to say the least, is very far from being clearly true. And as the public or corporate interest in an improvement, rather than its particular location, determines the question as to the right of taxation for its construction, the fact that the road contemplated in the present case will lie mainly outside of this State, can make no dif ference. The right of eminent domain cannot be exercised, nor the road constructed in or through other States, without their permission and authority; and the act in question contemplates nothing of the kind. But, when such consent is given, we suppose the par Walker v. City of Cincinnati. ticular direction given to the road can have no bearing on the question of corporate power to construct it. It is also to be borne in mind, that this is not a case in which the legislature has determined a particular public improvement to be of a local character, and has imposed the burden of its construction on an unwilling municipality. But it is the case of an authority given to a city to exercise its powers of taxation only for the construction of an improvement which the local authorities have declared to be essential to the interest of the city, and even that cannot be done till a majority of its people have sanctioned the measure by their deliberate votes. The towns and cities of the State are not the creations of the constitution. It recognizes these municipalities as existing organizations, properly invested by immemorial usage with powers of assessment and taxation for local purposes of a public character, but which were nevertheless subject to control and regulation by the State, and that these powers might be abused unless properly restricted. The constitution itself provides where the power of preventing such abuse shall be vested. It declares, in article 13, section 6, that "the general assembly shall provide for the organization of cities and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse of such power." It is very clear, that this constitutional mandate cannot be enforced according to judicial discretion and judgment. In the very nature of the case, the power which is to impose restrictions, so as to prevent abuse, must determine what is an abuse, and what restrictions are necessary and proper. As is said by the learned author, from whose treatise we have before quoted: "The moment a court ventures to substitute its own judgment for that of the legislature, in any case where the constitution has vested the legis lature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference. The rule of law upon this subject appears to be that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes Walker v. City of Cincinnati. within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights." Cooley's Const. Lim. 167, 168. We do not mean to say that every legislative enactment is necessarily valid unless it conflict with some express provision of the constitution. Undoubtedly, the general assembly cannot divest A of his title to property and give it to B. They cannot exercise judicial functions. They can impose taxes only for a public purpose. For it is of the essence of a tax that it be for a public use. Nor can they by way of taxation impose a burden upon a portion of the State only, for a purpose in which that portion of the State has no possible peculiar local interest. But to justify the interference of a court upon any of these grounds, the case must be brought clearly and beyond doubt within the category claimed; and such we are persuaded is not the case in respect to the act in question. We have been referred to recent adjudications in several States, which are supposed to sustain the claim that taxation cannot be authorized for the construction of a railroad in cases like the present. In the case of Whiting v. Sheboygan Railway Co., 25 Wis. 167, it was held that " a statute levying a tax for the sole purpose of making a direct gift of the money raised to a mere private railway in which the State or the tax payers have no ownership, is unconstitutional." The case from Michigan of The People ex rel. The Detroit & Howell R. R. Co. v. Township of Salem, 20 Mich. 452 (4 Am. Rep. 400), proceeds upon the same grounds. But, in the case now before us, the road is the property of the tax payers who furnished the means to build it. The recent decisions in Iowa are in conflict with the former uniform line of decisions on the subject in the same State, and in all the cases referred to in either of those States, the reasoning upon which the decisions rest is in conflict with what we cannot but regard as the settled law of this State. We are brought to the conclusion that there is nothing in the general purport and main object of this act which places it outside of the sphere of legitimate legislative power. We proceed to consider whether it is in conflict with any of the express limitations imposed by the constitution. It is claimed that the general assembly, in the act in question, by |