Cass v. Dillon (2 Ohio St. 607, 1853)

*Thurman, J.

The decision of this case turns upon a. single question, namely: Was the act of assembly of March 24,1851, authorizing a subscription, by Muskingum-county, to the capital

stock of the Cincinnati, Wilmington and Zanesville Railroad Company, 49 Ohio L. L. 539, abrogated by the new constitution? If it was, the plaintiff is entitled to recover; otherwise, the case is with the-defendant. That the act was valid when passed, and continued to be so until the present constitution took effect, is not denied. But. it is claimed that it was repealed by that instrument; not by any express words, however, but by necessary implication. True, s'ome of the counsel say that the question is not one of repeal. Their-argument is, that all laws now in force, derive their authority from the existing constitution; that no law can be in force whose authority is not thus derived; that, consequently, it is for the defendant, to show that the law in question is saved by the constitution, and not for the plaintiff to show that it is repealed. But this is a mere-distinction, without a difference. The constitution does expressly save all laws not inconsistent with it. None but the inconsistent, then, were abrogated. But how were they abrogated? Not by any express words of repeal, for there are none such. It follows that they fell simply because of their inconsistency. Had they been consistent, they would have continued. Being inconsistent, they ceased,. Now, it matters not whether this be cálled a repeal by implication, as we’think it should be, or a failure-to save them, as counsel would call it. Name it what you please, the rules to govern in deciding-whether a law remains in force, will be the same. No mere difference in names can make a difference in construction. But if names-are important, we doubt not that the abolition of a law, by the constitution, should be called a repeal. The State of Ohio is the same political state now that it was under the old constitution. The new constitution created no new state. It only altered, in some respects, the fundamental laws of a state already in existence; and even this was done pursuant to a prior constitution, under’ whose provisions *the convention was called, and the new constitution framed. It follows, that all laws in force when the latter took effect, and which were not inconsistent with it, would have remained in force, without an express provision to that effect, and all inconsistent laws fell, simply because they were inconsistent ; in other words, all repugnant laws were repealed by implication. If the laws of a conquered country remain in force until repealed, so far as they are consistent with the government of the conquerors, a fortiori is it true that the laws of a state survive a peaceable change of its constitution, effected by its own people, and not varying the general structure of its government, to the full extent to which they are consistent with the new order of things.

But we are not without authority upon this subject, to which it is proper to refer. In the case of Ohio, on the relation of Evans, v. Dudley, 1 Ohio St. 437, the question was, whether the act creating Noble county, survived the taking effect of the new constitution. The court treated it as a question of repeal by implication, and governed by the rules that relate to such repeals. Ranney, J., delivering the judgment of the court, said: “In short, their position is, that the law creacting the county is inconsistent with the present constitution, and was repealed by it when it took effect. Tf such inconsistency is found to exist, after a fair and honest effort to reconcile them, it can not be doubtful which ’must give way, and the conclusion contended for by the relator would inevitably follow. The rule by which we should be guided in pursuing this inquiry is well settled. As repeals by implication are not favored, the repugnancy between the provisions of two statutes must be clear, and so contrary to each other that they can not be reconciled, in order to make the latter operate a repeal of the former. This rule is the result of a long course of decisions, and we know of no reason why it does not equally apply, when the repugnancy is alleged to exist, between a constitutional provision and a legislative enactment. With this principle in view, we proceed to the inquiry: Does such necessary and obvious repugnancy exist between the law creating this county and the constitution ? ”

*That the rule was not too strongly stated by the judge, is apparent from a multitude of cases; and from none more clearly than those of our own state. Thus, in Ludlow’s Heirs v. Johnston, 3 Ohio, 553, we find it said: “ When the provisions of two statutes are so far inconsistent with each other that both can not be enforced, the latter must prevail; but if, by any fair course of reasoning, Me two can be reconciled, both shall stand. When the legislature in'tend to repeal a statute, we may, as a general rule, expect them to do it in express-terms, or by the use of words which are equivalent to an express repeal. No court will, if it can consistently be avoided, determine that a statute is repealed by implication.”

So, in the case of Dodge v. Gridley, 10 Ohio, 178, it was held, that ** when two affirmative statutes exist, one is not to be construed to repeal the other by implication, unless they can be reconciled by no mode of interpretation.”

In the light of this rule, then, let us examine the provisions of the constitution that are said to be repugnant to the continued existence of the law in question.

The first provision to which I shall refer, and upon which the plaintiff seems chiefly to rely, is section 6 of article 8, and is in these words: “ The general assembly shall never authorize any county, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint-stock company, corporation, or association whatsoever; or to raise money for, or loan its credit to or in aid of, any such company, corporation, or association.”

Is there any “necessary and obvious” inconsistency between this section and the law before named, enacted under the old constitution? Are they “so contrary to each other that they cannot be reconciled? Is there no “fair course of reasoning,” “no mode of interpretation,” by which this canbe done? These are the questions to be asked, according to the authorities, and upon the answer that may be given depends the decision of the point.

Now, I-apprehend that instead of there being any such necessary and obvious repugnancy, it requires no little ingenuity *to show any repugnancy at all. So far from there being no fair course of reasoning4 by which the section and the law may be reconciled, all that is required to reconcile them is, to let the section speak according to its terms. Instead of there being no mode of interpretation upon which the law can stand, the most natural and obvious construction in nowise interferes with it. The section plainly refers to future legislation, and to future legislation only. The general assembly it speaks of, is the assembly created by the ■constitution, and not any past assembly. The acts it prohibits, are not subscriptions under existing laws, but the making of any more such laws.

It is said, however, that notwithstanding such are the terms of the section, its spirit is more comprehensive. But when was a statute repealed by the spirit of another, with whose terms it was perfectly consistent? When was an enlarged meaning given to a statute, beyond the import of its words, in order to repeal another statute by implication? We have met with no such case, and none has been pointed out to us. Furthermore, it is not upon the terms alone of the section, that the argument against repeal is founded. It derives great force from a comparison with other provisions, as I shall hereafter have occasion to show. Neither does the spirit of the constitution require what the plaintiff contends for, unless, indeed, we have greatly mistaken the purpose of its framers. That the convention regarded subscriptions of the character in question as impolitic, is certainly true. That the people concurred in this opinion is equally manifest. That it was designed to prevent, in future, the enactment of any law to authorize them, is perfectly clear. But that it was intended to repeal existing laws—that it was meant to prohibit subscriptions already authorized—neither the language nor the history of the constitution warrants us in saying. On the contrary, both the one and the other, as I shall hereafter attempt to prove, repel the idea.

We are referred to section 3 of article 8, forbidding the state to incur debts, with certain exceptions; and to section *6 of article 12, by which she is prohibited from contracting any debt for purposes of internal improvement;, and it is argued that the state being thus disabled, her several parts are equally impotent; that a prohibition upon the state at large, necessarily includes a prohibition upon her subdivisions.

But an examination of the constitution will show that this argument proves too much, and is obviously inconsistent with the provisions and intent of the instrument. First, let us look at sections 1; 2, and 3, of article 8, which are as follows:

“ Sec. 1. The state may contract debts to supply casual deficits or failures in revenues, or to meet expenses not otherwise provided for; but the aggregate amount of such debts, direct and contingent, whether contracted by one or more acts of the general assembly or at different periods of time, shall never exceed seven' hundred and fifty thousand dollars; and the money arising from the creation of such debts shall be applied to the purposes for which it was obtained, or to repay the debts so contracted, and to no other purpose whatever.

“ Sec. 2. In addition to the above limited power, the state may contract debts to repel invasion, suppress insurrection, defend the-state in war, or to redeem the present outstanding indebtedness of the state; but the money arising from the contracting of such debts shall bo applied to the purpose for which it was raised, or to repay such debts, and to no other purpose whatever; and all debts incurred to redeem the present' outstanding indebtedness of the state shall be so contracted as to be payable by the sinking fund hereinafter provided for, as the same shall accumulate.

“Sec. 3! Except the debts above specified, in sections one and two of this article, no debt whatever shall hereafter be created by or on behalf of the state.”

Now, if the limitations imposed by these articles upon the state, are e.x necessitate limitations upon her political subdivisions also, then it follows that the aggregate indebtedness of both state and subdivisions can never exceed $750,000, aside from debts contracted to repel invasion, suppress ^insurrection, defend the state in war, and redeem her present indebtedness. The consequence would be, that if the state herself should become indebted to that amount, none of her subdivisions, while such indebtedess continued, could contract any debt whatsoever, unless it was to repel invasion, suppress insurrection, or defend the state in war. And the converse would be also true, that the state would be equally powerless, if the subdivisions became first indebted to that amount. It is hardly necessary to add that such an absurdity could never have been intended, and that, to say nothing of the mischief it would occasion to counties, cities, and towns, it would practically render null Empower conferred upon the state by the first of these sections.

Section 6 of article 12 is in these words : “ The state shall never contract any debt for purposes of internal improvement.” Does this relate to the subdivisions of the state? If so, they may prove quite inefficient to accomplish a chief end of their creation. A flood washes away a county road and endangers a county bridge. Upon the above construction, the one must remain unrepaired, and-the other unprotected, if there are no funds in the county treasury. Nothing can be done until taxes are laid and collected, though, in the meantime, the injury may increase a hundred-fold, and all travel be interrupted. The streets, or wharves, or water-works of a city may need instant repair; but none can be made unless there, are taxes in the public purse. Is such the design of the constitution? We do not think so. The natural and obvious meaning of these several sections, applies their limitations to the state alone, and not to her subdivisions. And that the state only was intended, is further shown by the fact, that the constitution constantly keeps in view the distinction between her and her parts. The idea, now contended for, that each limitation upon her power is necessarily a limitation upon the power of her subdivisions, does not seem to have entered the mind of the convention. That they did not act upon this idea is very manifest. Hence we find in the constitution, section 6 of article 8, before quoted, notwithstanding it had been previously ^declared by section 4 of the same article that, “ The credit of the state shall not, in any manner, be given or loaned to, or in aid of, any individual, association, or corporation whatever; nor shall the state ever hereafter become a joint owner •or stockholder in any company or association, in this state, or elsewhere, formed for any purpose whatever.” So, too, it is declared (article 10, section 5), that “no money shall be drawn from any county or township treasury, except by authority of law,” although, in a previous pai’t of the constitution (article 2, section 22), a similar provision is found in respect to the treasury of the state.

Again, keeping in view the difference between state debts and expenses, and the debts and expenses of her subdivisions, it is provided (article 12, section 4) that, “ The general assembly shall provide for raising revenue, siifficient to defray the expenses of the state, for each year, and also a sufficient sum to pay the interest on the state debt;” while, by section 5 of article 8, it is declared that, “ The state shall never assume the debts of any county, city, town, or township, or any corporation whatever, unless such debt shall have been created to repel invasion, suppress insurrection, or defend the state in war;” and, by section *1 of.article 10, it is provided that, “ The commissioners of counties, the trustees of townshijDS, and similar boards shall have such power of local taxation, for police purposes, as may be prescribed by law.”

But this is not all. So far was the convention from supposing, that the provisions, relied on by the plaintiff, would operate as limitations upon the political subdivisions of the state, that we find an express provision for restricting, by law, the powers of cities and villages, in respect to taxes, debts, and loans. By article 13, section 6, it is ordained 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 j>ower.” In short, the idea that limitations of the power of the state, as such, operate as ^limitations upon the power of each of her subdivisions, is not the theory upon which the constitution was written. It was not supposed by its framers, that the mathematical axiom that, “ the greater includes the less,” would be an invariable canon of construction, in considering their work. Had such been their thought, there is more than one provision that would have been omitted, as both useless and calculated to mislead. Especially, for those reasons, would section 6 of article 8 have been omitted. But they would have done something more than omit. They would háve inserted provisions to guard against the mischiefs that would result from, such a rule of construction.

I do not mean to say that there is no case in which this rule should apply. But I do mean to say that, in general at least, when the constitution speaks of the “ state,” the whole state, in her political capacity, and not her subdivisions, is intended. That such is the natural import of the language used, no one denies. ' That such must be its construction, to make the constitution consistent with itself, and sensible, is very apparent.

Nor do I mean to assert that any subdivision of the state is, in any sense, sovereign. The construction for which I contend, leads to no such absurdity. That the powers of the subdivisions, as well as of the state herself, are derived from the constitution, is undoubtedly true. But equally true is it that it was competent for the people to confer upon the one, powers not conferred upon the other; and there' is nothing in the least degree irrational, in supposing a grant of power to a subdivision, that is withheld from the state at large.

We are also referred to section 26 of article 2, which provides, that, “All laws of a general nature shall have a uniform operation throughout the state; nor shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the general assembly, except as otherwise provided in this constitution.”

That the first branch of this section has had the effect to *abolish certain laws of a general nature, whose operation was confined to particular localities, I have not the least doubt; but the act under consideration -is not a law of that character.

That it is a public law, of which the courts ex officio take notice, may well be admitted; but it does not follow that it is of a general nature. It is no more of a general nature than would be an act to authorize the construction of a bridge or the erection of a poorhouse. As well might it be said that the act authorizing Hamilton county to build a jail (49 Ohio L. L. 130), was of a general nature, and therefore repealed. All such acts are, of necessity, local in their character. The origin of this section is perfectly well known. The legislature had often made it a crime to do in one county, or even township, what it was perfectly lawful to do elsewhere; and had provided that acts, even for the punishment of offenses, should bo in force or not in certain localities, as the electors thereof respectively might decide. It was to remedy this evil and prevent its recurrence that this section was framed. How far it reaches, it is not now necessary to decide. That it may sometimes be difficult to say whether an act is within its meaning or not, is very probable. But, certainly, it can not be doubted that whore, in the nature of things, the character of an act is necessarily local, the first branch of the section has no application.

Neither does the remaining branch apply to the case before us. For even wore a retroactive operation given to it, which we do not mean to say can be done, it does not touch the law in question, which took effect as soon as passed, and derived none of its validity from a vote' of the people. 1 Ohio St. 88, 89.

Finally, we are reminded that the subscription by the commissioners of Muskingum county was an act of government, and that no governmental act can be of any validity unless authorized by the constitution; for all powers not delegated by that instrument “ remain with the people.” Art. 1, sec. 20.

*The truth of these propositions will not be denied; for nó one protends that the subscription was an individual act, or that there are two constitutions in force in the state. On the other hand, it can not be assorted that to the existence of a power an express delegation is necessary; that a power may bo either expressly granted, or granted by implication, every one will admit. And it will also be admitted that, while we should be careful not to extend the powers of government by far-fetched implications, we should be equally careful not to defeat the purpose of the constitution by a narrow and unreasonable construction.

Now, we have seen that all laws not inconsistent with the constitution are expressly saved by it; and if it be admitted that this provision was adopted with a knowledge that the rules respecting repeals by implication would apply, there is much reason for saying that it ends this controversy. Eor it may be argued that the law in question not being necessarily and obviously repugnant to any specific provision of the constitution, is expressly saved by it ; and that, therefore, the power to make a subscription, under this law, is not one of the reserved rights of the people. But it may be objected that this leaves out of view the provision itself by which rights are reserved; and it may be, and is, said that the true rule is, that no act can be done under authority of previous laws, which could not be authorized by the existing assembly; or, in other words, that all laws that could not now be passed are inconsistent with the constitution.

If this were admitted as a rule, it would nevertheless be found fairly inferable from the constitution that the case under consideration is an exception. But the constitution does not seem to have been framed upon this rule. Its almost universal language of prohibition is prohibitory of acts and not of legislation. Of course, I speak of the terms of the prohibitions and not of their effect. To forbid an act is obviously to forbid the making of a law to authorize it; but the converse is not necessarily true, or, in all cases, probable; for it by no means follows, from a prohibition of ^future legislation, that it was designed to prohibit acts authorized by existing laws.

There might be very good reasons for prohibiting the one and suffering the other; good reasons for saying that so far as such acts are authorized, we will let them be performed, but none shall be performed under the sanction of future laws—the laws already in existence we will not touch, but no more such laws shall ever be passed. Now, these, we think, were precisely the views of the convention. Subscriptions of the character in question were regarded as an evil; but to prohibit those already authorized, would be productive of mischief. It was necessary to choose between two evils, and’ to let past legislation alone was deemed the lesser. Under that legislation, large subscriptions had been made to works not yet completed. The subscribers were not individuals only, but also counties and townships, cities, towns, and villages. They subscribed under the belief that the laws would continue in force, and that other municipalities would also subscribe. Upon the making of such further subscriptions, depended probably the completion of the. works, and the remuneration of the stockholders. To cut off such subscriptions, would be to stop the enterprises, and sink •the sums expended. That this would not always happen, might be very true; but that it would happen often enough to be a serious evil, was certainly believed. Besides, by means of such subscriptions, certain roads had been made, and portions of the state had been largely benefited. To take from other portions the like means, after they had been authorized, would seem somewhat like oppression. And it would also look like favoring the finished roads, by crippling those that were incomplete. Nor is it unworthy of remark, that the adoption of the constitution was by no means certain. That fears were entertained by its friends, is matter of •history. That these fears were felt in the convention, its debates will show. That they had an influence in preventing a prohibition of all subscriptions, there is good reason to believe. It was probably not deemed advisable to incur the hostility of those interested *in unfinished roads, by an abolition of the laws passed foj.' their benefit. It was possibly thought better, even by some who preferred a sweeping prohibition, to lot existing laws alone, rather than, by seeking too much, to lose all.

It is argued, however, that the convention intended to prohibit all subscriptions, because they must have foreseen that, otherwise, the legislature, then in session, could practically nullify the constitutional provisions by authorizing every county and other municipality to subscribe.

To this argument, two answers may be given, either of which is sufficient. 1. That it was not presumable that the legislature would do any such thing; and, 2. That if it was so disposed, the constitution, even upon the plaintiff’s own construction, could not have prevented it. For it did not take effect until September 1, 1851, over five months after the adjournment of the convention; in which intermediate time every county and town in the state, on the line of a projected railroad, might have boon required to subscribe, had the legislature seen fit to order it.

But no such order was made. With the draft of the constitution before them, and with every facility for ascertaining the views of the convention, the legislature gave the same construction to its provisions that we give to them; and although they authorized subscriptions to bo made, they refrained from requiring them; and although they made the votes of the people conditions precedent, they did not appoint the elections before the constitution would take effect.

But we are not left to speculate as to the design of the conven tion. We have much firmer ground to tread upon than legislative interpretation, or the unwritten history of the constitution.

When section 6 of article 8 was under discussion in. the convention, it was distinctly declared, in substance, by. a leading member of the committee that reported it, that it did “not cut off,” but “protected” subscriptions that might be authorized before the constitution would take effect; and this assertion was denied by no one, although many members *took part in the debate. Strong hostility was manifested by several speakers to the policy of all such subscriptions, and all amendments calculated to favor them, more than they were favored by the section as reported, were promptly voted down. The attendance of members was very full, and the opponents of subscription wore a large majority. The subject excited much interest, and the debates upon it were spirited and able. Under such circumstances, if the construction announced by one of the framers of the section was not the true one, it is reasonable to suppose it would have been denied. That it was not denied, I have already stated; I might also have said that its correctness was not even questioned.

Now, although the debates of the convention can never overthrow a plain, unambiguous provision of the constitution, as I have once before had occasion to say at this term, yet they certainly may fortify us in following the natural import of its language, and legitimately aid in removing our doubts.

It is, however, upon the constitution itself that I prefer to rely. I have before said that its almost universal language of prohibition is prohibitory of acts and not of legislation. I have no space, in this already too extended opinion, to refer to these various provisions, nor is it essential that I should. They are familiar to all who have studied the instrument, and will be discovered by any one who will read it. But in section 6 of article 8, the language is changed. Instead of directly prohibiting the act of subscription, as is done but two sections before in the case of the state, it is merely provided that, “The general assembly shall never authorize,” etc. Now, why this change of phraseology, this mere restraint of future legislation, this omission to forbid, in terms, the subscription itself, no matter when authorized, unless existing laws, as declared in the debate before alluded to, were to be “ protected ” instead of being “cut off?” Upon what other hypothesis can this departure from the usual course be accounted for ? Can it be believed that, with the ^subject immediately before them, with a section framed to meet it under consideration, and with the strongest disposition to suppress the evil, so far as policy required, the convention, through mere carelessness, failed to expressly prohibit what they intended to forbid; nay, more, by a change of phraseology, as-striking as it is singular, opened a wide door for saying no such prohibition was designed ? Can it bo believed that a prohibition so important was left to mere inference, when fewer words would have-made it explicit, and that, too, after it had been openly assorted that the true inference was it did not exist ?

Again : The’constitution did not create the municipalities of the state, nor does it attempt to enumerate their powers. It recognizes-them as things already in being, with powers that will continue to exist, so far as they are consistent with the organic law, until modified or repealed. Thus there is no express provision that a county may make a road or contract a debt, yet no one will doubt for a moment that it may do both. Indeed, its power to contract debt is recognized, beyond even the authority conferred by law. It -is clearly assumed in section 5 of article 8, that it may create debts to repel invasion, suppress insurrection, or defend the state in war, although no such power has ever been conferred by statute, so far as I can discover. If it can- thus incur debts, it may, of course, levy taxes to pay them; notwithstanding its only express grant of the taxing power is, by section 7 of article 10, for “police purposes.” The same thing may be said of townships, cities, towns,, and villages.

I mention these matters to show the idea upon which the constitution was framed, and some of its implications. But there is-another provision that bears more directly upon the question at. issue. A loan of credit, by the state or one of her subdivisions, was considered an evil of equal magnitude, perhaps, with that of taking stock. Hence, the state is forbidden to make any such loan to any individual association or corporation whatever (section 4, article 8) ; and if the plaintiff’s construction is right, her municipalities are in like manner ^disabled. But by section 6 of article 13, it is ordained 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.”

Now, why this provision; why this recognition of a power to make a loan of credit, if all such loans are absolutely forbidden? Will it be said that all are not forbidden; that it is only loans to as•sociations or corporations that are prohibited ? Is this the fact ? Is it true that credit may be loaned to a single individual to make a road, but may not to a company ? Is this the construction that the constitution must receive? If it is, it is easy to see that its prohibitions are worthless, or little better than worthless. But it is not by this distinction that the section can be accounted for. We must look for some other reason to explain its existence; and what better reason can be found than that which 'results from the views I have expressed? When-the constitution was adopted, laws were in existence authorizing such loans of credit, and it was not intended to •disturb them. I mean that it was not intended to repeal them by the constitution itself; but, on the contrary, they were left for the action of the assembly. Hence the power to make such laws was properly recognized, and there is no inconsistency betwéen the rec•ognition and the prohibition of the enactment of any more such laws. Btit the same policy that was applicable to cities and villages, was equally applicable to townships and counties; the same policy that required loan laws to be saved, equally required that subscription laws should be left untouched. The legislature could repeal both, provided vested rights wore not destroyed, and in the hands of that body, the subject might be loft. No more such laws could ever be enacted ; and the existing evil would not greatly be increased, by suffering past laws to remain in force.

And hero I may remark, that nothing could be more erroneous than the estimate made by counsel, of the debt that *may yet be incurred, if our views are correct. I have said “ estimate,” though guess would be a more proper word; for it is confessedly made without examination. The amount supposed is $100,000,000 ; which would be an average of over eleven hundred thousand dollars for each county l I doubt exceedingly whether all the subscriptions in the whole state, made, or that will be made, since the constitution took effect, will reach the sum here supposed for a single county. I think, after a somewhat careful examination, that it may be safely affirmed, that such subscriptions can never reach two millions. I believe one million is much nearer the mark. And this is upon the-hypothesis that the laws will remain unchanged. But it is not to-be forgotten that the legislature has a power of repeal, that maybe exercised to prevent further subscriptions; and that ought to be exorcised to the full extent demanded by the public welfare.

In regard to section 19 of article 1, all that need be said is, that it has no reference to the taxing power. 1 Ohio St. 77.

Upon the whole, a majority of the court are of opinion, that the law in question is not inconsistent with the constitution, and is-therefore in force. With all our prepossessions against the policy of these stibscriptions, we are unable to arrive at the opposite conclusion. We can not treat the constitution as a series of mathematical axioms, from which none but infallible deductions are admissible. Nor can we yield our assent to every deduction that may be logically drawn from any one of its generalities. We regard it as a law, subject to the imperfections of legislation; in the construction of which, as of all other laws, the intent of the lawgiver must, if possible, prevail. We have long and faithfully sought to discover that intent, and with great respect for those who differ with us, we believe we have succeeded.

Judgment for defendant.

Ranney, J.,

dissenting.

In the month of December, 1852, the property of the plaintiff, a. resident of Muskingum county, was taken and sold by *the defendant ; and he now prosecutes this suit to recover the amount of money arising from the sale, received and still held by the defendant. The defense rests upon this state of facts: On the 24th day of March, 1851, the general assembly of this state passed an act. to authorize the county of Muskingum to subscribe to the capital stock of the Cincinnati, Wilmington and Zanesville Railroad Company, upon the condition that such subscription should be first approved by a majority of the qualified electors of the county, to be-ascertained at an election held upon notice, for that purpose. This-vote was taken on the 14th day of October, in that year, and a majority voting in favor of the subscription, the commissioners, on. the 25th of the same month, subscribed one hundred thousand dollars, in the name and on behalf of the county, to the stock of the-company; and on the 12th of June, 1852, levied a tax to pay the interest this subscription. The plaintiff refusing to pay the-levy upon his property for this purpose, the defendant, then treasurer of the County, and having the duplicate in his hands for collection, seized and sold the plaintiff’s property, and made the amount ■charged against him therefrom.

No question is made as to the regularity of these proceedings, provided the law continued in force when they were had; but it is claimed, and I think with entire success, that the authority to make the subscription and levy the tax ceased and was absolutely revoked, upon the taking effect of the present constitution of the state, on the 1st of September, 1851.

A majority of the court having come to the opposite conclusion —a result, in my judgment, subversive to a great extent of the principles and policy established by some of the most important provisions of the constitution, designed to prevent a gross abuse of the taxing power, I deem it my duty to state, in such detail, as to be definitely understood, the grounds upon which I dissent from the judgment given in this case.

It is in no way difficult to understand the precise situation of things at the time this constitution took effect. * After the adoption of the constitution by the convention, and while it was pending before the people for ratification, the act was passed. Nothing further was done until it had been ratified and, in pursuance of its provisions, had taken effect.

Then followed in succession the vote, the subscription, the tax, and the levy and sale of the plaintiff’s property. The law depended for its validity upon the constitution of 1802, and while that in■strument continued in force, and measured the. extent of political power with which the government was invested, it has been settled to have been a constitutional and valid law. A law, however, not conferring complete authority to bind the county by a subscription, but dependent for its execution upon the condition that such subscription should be first approved by a majority of the electors.

That constitution was abrogated when the present took effect, .and with it. I insist, fell every particle of legislation inconsistent with the grants of power contained in the one that took its place-.

In other words, what can not now be done by the government in virtue of its own inherent power, and under its own legislation, ■can not continue to be done under authority of legislation enacted •under the former constitution, and in force at the time the present •constitution -took effect.

Such legislation and the constitution can not stand together, and both have effect, and they are therefore inconsistent—opposed to each other: and in such case, no one doubts that the prior, inferior law must give way to the latter, superior constitution. ‘

I think I shall be able to make this very manifest, but before making; the attempt, to avoid misapprehension which might arise from the generality of the proposition, I should say that the prin•ciple does not necessarily cover the mere forms or course of proceeding necessary to be observed in the enactment of law;s.

These relate only to the manner of executing the power, and have present application for that purpose, and where the same end can still be attained, by the observance of other *or additional requisites, or by another course of proceeding, it may well be that laws passed when these were not required, would still continue in force.

Much less does it operate to impair, or in any manner affect rights of j>roporty acquired or vested on contracts made under such legislation while it continued in force. The repeal of a law never has that effect, 1 Ohio St. 565 ; but aside from the general rule, the constitution, in the most explicit language, has extended its protection to all such rights of property, and the moment it took effect, placed the seal of inviolability upon them.

But neither of these considerations intervene to embarrass the present case. It is not protended that a law, in any form, could have been passed since September 1,1851, to authorize the proceedings relied upon as a defense; and it is very properly admitted by the defendant’s counsel, that there was at that date, no rights vested in any one, either by contract or otherwise, to be interfered with by the repeal of the law.

Up to that time there was nothing but a simple, naked, conditional power given to the commissioners to make the subscription.

If this naked power was then revoked, and ceased to exist, it inevitably follows that the subscription was made, and the tax assessed, without authority of law; and they can, therefore, furnish no justification for taking the plaintiff’s property.

Before adverting to the particular provisions of the constitution with which the continued exercise of this authority, in my opinion, became inconsistent, I may be permitted to refer to a few genera] principles, in the light of which they should be read and considered. If these principles should be regarded as too elementary and radical to be introduced into a judicial opinion, or so old as to have become obsolete and unfashionable in this fast age, I hope the offense against good taste may be at least somewhat mitigated, when it is remembered that they have always been deemed of sufficient importance to find a place among the fundamental laws of the state; and to be-characterized by our ^fathers, as the “ groat and essential principles of liberty and free government ” to which “ a frequent recurrence,” “is absolutely necessary, to preserve the blessings of liberty.” Art. 8, sec. 18, const. 1802.

First amongst them in order, and first also in importance, is the' great political truth, that sovereignty belongs only to the mass of the community; or, as expressed in the bill of rights (sec. 2), “all political power is inherent in the people.” In extended communities, for obvious reasons, the direct exercise of this power becomes, impracticable; and this has led to the institution of a subordinate agency called the government; intrusted for the time being, with the exercise of such sovereign power, and such only as is clearly expressed in the instrument of delegation—the constitution. This-seems very plain, and almost too plain to need this formal statement ; and yet it is forgotten or disregarded, as often as the argument is advanced, that a legislative act can only be treated as inoperative when expressly prohibited by some clause or section of the constitution. The question can never be, what might the people, the source of sovereign power, have done or authorized to be done in their name and behalf; but what have they authorized to be done ? As well might any other agent, acting under written instructions, claim to be authorized by his principal, to do whatever he was not expressly prohibited from doing, however foreign it might be to the powers actually conferred. Hence, this court has held : That it is always legitimate to insist that a legislative enactment, drawn in' question, is invalid, either because it does not fall within the general grant of power to that body, or because it is prohibited by some provision of the constitution; and if the former is made to appear, it is as clearly void as though expressly prohibited. 1 Ohio St. 86.

2. It-will not be doubted in the face of the second section of the' bill of rights, or even without it, that the people have the absoluto right, at any time, to resume any portion or all of the political power they had previously delegated, and to construct their government anew, upon such principles *and with such powers as to them shall seem conducive to their happiness and safety.

3. If these principles are correct, and they seem to me nearly self-evident, they enable mo to assume, without a possibility of mistake, that upon the taking effect of the present constitution, all such power previously given, as is not expressly, or by fair implication, delegated to the present government by that instrument, then returned to its source and now remains with the people : and this not only as the natural result of these principles, but by the positive provisions of the constitution; section 20, of article 1, expressly declaring, that “ all powers, not herein delegated, remain with the people.”

Since September 1, 1851, therefore, this constitution and the constitution of the United States, in their several grants of power, contain every particle of political sovereignty that the .people of this state have authorized to be exerted in their name or behalf, over the person or property of any citizen ; and by way of express limitation upon their own powers, they have ordained that no other or further power shall be exerted, even by themselves, except in the mode prescribed for an amendment of these instruments. When an ajipeal is made to the guaranties they afford, against any act of the government' the question must always be, is the power-delegated or not? and in tracing the dividing line between authority conferred and reserved, they should, like every other written instrument, be construed according to the natural import of the language employed, in view of the objects and purposes intended to be accomplished, without any attempt to enlarge the grant from considerations of convenience or necessity:—reasons always advanced by tyrannical rulers to justify usurpation of power, but utterly destructive of all representative government, based upon constitutional limitations.

In the light of these principles, let us now ascertain what powers, applicable to this inquiry, were conferred upon the general assembly by the constitution of 1802; what evils *an experience of half a century had developed; and what remedies for their suppression the present constitution has provided. The spirit and object of its provisions will be thus made apparent; and the duty unquestionable, to so construe it as to suppress the mischief and advance the remedy.

1. The powers of the general assembly, under the old constitution, were made the subject of investigation and decision by this court in the case of the Cincinnati, Wilmington and Zanesville Hailroad Company v. The Commissioners of Clinton County, 1 ■Ohio St. 77; and it was there held that the general grant of “legislative authority,” contained in that instrument, conferred the power ■of providing by law for the construction of works of internal improvement, by the employment of any appropriate means adapted ■to the end in view, and not prohibited by the constitution; and as ■no limitation, whatever, was there found, that corporations might be created for the purpose, and counties, cities, and towns might be authorized, as subordinate agencies in the hands of the legislature, to construct, either in whole or in part, by subscribing to the stock of such corporations, those of a local character, having especial relation to their business and interests. That in this manner, and for these purposes, debts might be contracted, and taxes levied to ■pay them ; and while this court then entertained and expressed the unanimous opinion “that such laws involved a gross abuse of the taxing power,” yet, as the constitution fixed no limit to the discretion of the general assembly upon a subject settled to be within its control, it was thought to be an evil beyond the reach of judicial correction.

2. The results of this unlimited power were most disastrous. It had borne the bitter fruits of impaired public credit, wasteful expenditure, and a large state debt; followed by onerous taxation, already endured for years, without prospect of being materially diminished for many years to come. When money could no longer be borrowed upon the credit of the state, a new and still more dangerous expedient *was resorted to, under the influence of the railroad mania, for increasing the public burdens to an unlimited amount, and involving the municipal divisions of the state in all the frauds and disasters of private corporations, by authorizing the counties, cities, and towns to subscribe to the stock of such companies. Laws for this purpose were passed, without, investigation or reflection, whenever desired by the representation of the locality to be affected, and favorable votes generally obtained; often under the fallacious expectation that small towns were thus to bo made cities; and through the interested pressure created by the depot bwners, stock-jobbers, and railroad officers. Private, property was thus, in effect, placed at the mercy of irresponsible, local majorities; neither under the control of the owner, nor subject to the disposition of the sovereign power of the state, when its appropriation for public purposes was found to be necessary by its whole representation.

With this strong tendency to bankruptcy and ruin, both of money and principle, the convention was called to revise the constitution. '

Intelligent and reflecting men everywhere, demanded a remedy for these growing evils; not by interfering with rights already acquired, or obligations already incurred; but by an effectual reduction of the powers of government, and unequivocal limitations upon its capacity for future action. The convention, in my opinion, has met this demand, in a manner entirely consistent with the public expectation and interest, and in strict accordance with sound principles; and has effectually disabled the state, and all its subordinate divisions, from incurring any debt whatever, for purposes of internal improvement, and especially from becoming stockholders in, or loaning their credit to, any joint-stock company or corporation, or association whatever, unless, indeed, “written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.”

3. In giving effect to this policy, we find it declared (art. 1, sec. 19), that “private property shall ever be inviolate, *but subject to the public welfare,” when compensation is made to the owner in money (art. 2, sec. 28), that “the general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; ” and by art. 8, sec. 7, the faith of the state is solemnly pledged for the payment of the public debt, and ample provisions made for its liquidation as it. becomes due. All these important guaranties were given, to provide against any interference with existing rights and interests.

To enable the government to meet certain other pressing emergencies that might arise, the state is authorized by the first and second sections of the eighth article, under the limitations and restrictions therein expressed, to contract debts to supply casual deficits or failures in revenues; to meet expenses not otherwise provided for, to repel invasion, suppress insurrection, defend the state in war, or to redeem the present outstanding indebtedness of the state.

The 3d section of the same article then provides: “ Except the debts above specified, in sections one and two of this article, no debt whatever shall hereafter be created by, or on behalf of the state.”

“ Sec. 4. The credit of the state shall not. in any manner, be-given or loaned to, or in aid of, any individual, association, or corporation whatever; nor shall the state ever hereafter become a joint owner, or stockholder, in any company or association in this-state, or elsewhere, formed for any purpose whatever.

“ Sec. 5. The state shall never assume the debts of any county, city, town, or township, or of any corporation whatever, unless-such debts shall have been created to repel invasion, suppress insurrection, or defend the state in war.”

And again, in the article on finance and taxation (art. 12, see.. 6), still bearing in mind that the embarrassments of the state had mainly arisen from indebtedness incurred for internal improvements,, and apparently to make assurance doubly sure, it is declared: “The state sha-ll never contract any debt for purposes of internal improvement.”

*The chief object and effect of these provisions, in their, application to the state government, are too manifest to require-comment. In the most explicit and cogent language, they prohibit the state from contracting or assuming, either directly or indirectly, any indebtedness whatever, except for the purjwses allowed in sections 1 and 2 of article 8; and section 4 of article 8 is-equally explicit in denying the right of the state to become a joint owner or- stockholder in any company formed for any purpose-whatever. The moment the constitution took effect, all legislation then existing, authorizing the creation of any such -liability, it is admitted, was instantly repealed and the authority revoked. But it is claimed that these sections only operate to restrain the-state government, as the representative of its sovereignty, from assuming liabilities to bind the whole state, while they leave its-political divisions, under authority of law, free to construct public improvements, and if necessary and deemed expedient, to incur any amount of indebtedness for that purpose.

It is wholly unnecessary in the decision of this case, to determine this question ; since the particular form of indebtedness here attempted to be incurred, is, in my opinion, expressly prohibited by section 6 of article 8, to which I shall particularly allude in the further progress of this opinion; and I have introduced the sections already quoted' chiefly for the purpose of showing the great -care evinced by the convention, to put a final end to what was justly regarded a formidable evil. But if the position is tenable, it must be admitted the constitution contains no guaranty whatever to the tax-payers, against being involved in indebtedness to any extent, for internal improvements, through the medium of the counties, except in the particular mode of loaning their credit, or subscribing to the stock of corporations. I am, therefore, unwilling to pass it in silence, or to suffer the opportunity to escape without saying that I am very far from yielding it my assent. I should hesitate long before coming *to the conclusion that the great object of these provisions could be thus easily and obviously evaded.

I may admit that the precise import of the language employed, when the letter is only regarded, may be open to this narrow construction. But the construction of a penal statute, and a remedial legislative enactment, or constitutional provision, involve very different-considerations; and this case, throughout, furnishes .another and forcible illustration of the absolute necessity, in the .latter class of cases, of comprehending, clearly, the spirit and object of the provision, and of holding that cases within its equity are included within it, and governed by it. However sagacious and intelligent legislators may bo, no human intelligence can foresee the infinite variety of circumstantial variation that may arise in cases to which the reason of the rule extends; and however voluminous .a code of laws may be, such cases can never all be subjected to .a precise description.

If this be true of statutory enactments, how eminently so of con-stitutional provisions, necessarily expressed with brevity, and de.signed to declare great principles in the fewest possible words. To the judicial tribunals belong the duty of applying these principles to individual cases; often a work of difficulty, and requiring the exercise of the highest powers of judgment and discrimination; and in the discharge of this duty, the polar star to guide the judicial mind, should be the object intended to be accomplished by the provision ; and it should be so construed as to preserve this in full vigor, unimpaired by evasion, although in doing so the letter may not be strictly adhered to.

Now, what object was intended to be accomplished by prohibiting the state from contracting “ any debt for purposes of internal improvement?” The answer is plain, palpable, and undeniable, that it was designed to protect the people of the state from the delusion, embarrassment, and onerous taxation to which they had before been subjected. It was not the state as a mere ideal abstraction, unconnected with her *eitizens and her soil, that needed protection; but the state as composed of her people, and their territorial organizations of towns, cities, and counties of which it was made up.

It was not the name of a- state debt against which it was intended to guard, but the burdens which such a debt imposed upon the-property of the citizens of the state. It was not the particular form in which the liability might bo incurred, or whether its payment, was imposed upon all or only a part of the people; but it was intended to give every citizen a constitutional guaranty that no debt was to be contracted for that purpose, which might ultimately involve taxation for its payment, and to afford him a sure protection against the unwelcome visits of the tax-gatherer calling for money to pay such indebtedness, that this section was inserted. Upon any other construction it is scarcely worth the jiarchment upon which, it is written. For, if the legislature may authorize one county to incur such indebtedness, it may authorize all: and if it may authorize them to do it, it may, with still less doubt, require it to be done. And in this way, a debt to any amount may be contracted under-its authority, for a prohibited purpose, with its burden imposed upon all the property and citizens of the state, and subjecting them to the same oppressive taxation as though the payment of the whole was assumed directly by the state. The provision would thus-wholly faily fail to effectuate its manifest and substantial objects, and its protection be reduced to amere shadow; since it would matter little to the tax-payer whether his property was taken to pay a. debt for that purpose, nominally incurred by the county or the-state.

The construction for which I contend is entirely consistent with the language of the section, and, I think, demanded as the result of principles already settled in this court. The legislative power of the state, in the exercise of sovereign authority, can alone authorize the construction of internal improvements. A county is invested with no single attribute of sovereignty, and under the constitution, can not be. When its organization is employed for carrying into effect a law of *that character, it is used as amere instrumentality, a means in the hands of the legislative power, to accomplish its purposes, and can do nothing but execute some subordinate function. 1 Ohio St. 89, 95. In virtue of its own powers, therefore, a county can not construct these improvements, and, of course, can not contract a debt for the purpose. If a debt is contracted, it must, from the nature of the thing, be contracted by the state through its legislative department, whether the payment of the debt is imposed upon the state or the county, or, in the latter case, whether it is voluntarily assumed by the county or forced upon it. What the state can not do directly, .it certainly can not do indirectly. Constitutional and statutory provisions and legal rules, would become little less than a burlesque, if they possessed so little vitality as to be subverted and made powerless by indirect attacks upon the principles they are established to sustain.

Now, it is positively declared: “ The state shall never contract any debt for the purposes of internal improvement.”

It is by no means clear, that the precise language of the section is not invaded, when a debt is authorized or commanded by the law-making power of the state, for this purpose, although its burden is cast upon one or more counties. But if it is not, is it not a sheer and palpable evasion of the spirit and purpose of the provision, to allow the same object to be attained by the use of the interdicted means, imposing the same burden upon a part or all of those intended to be protected, and followed by the same oppressive' taxation ? I think it is ; and such was evidently the opinion of the court of appeals in Kentucky, in the case of Slack et al. v. Maysville and Lexington Railroad Co., 15 B. Mon., upon a provision of the constitution of that state, much less explicit than this, although it did not become necessary in that case, definitely to settle the question. If it is so, and if the constitution, in protecting the people of this whole state from this evil and oppression, has necessarily protected all its organized parts, and every individual citizen, it follows that this attempt to create a debt for internal improvements, under ^legislative authority, is inoperative and void, as it stands c