Walker v. City of Cincinnati (21 Ohio St. 14, 1871)

Scott, C. J.

The question presented by this case is as to the constitutionality and vaildity of the act of the general assembly of this State, passed March 4, 1869, entitled “An act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants.”

The general scope and purpose of the act is to authorize any such city to construct a line of railroad leading therefrom to any other terminus in the State or in any other-State, through the agency of a board of trustees consisting of five persons, to be appointed by the superior court of such city, or if there be no superior court, then by the court of common pleas of the county in which such city is situated. The enterprise cannot, however, be undertaken until a majority of the city council shall, by resolution, have declared such line of railway to be essential to the interests of the city, nor until it shall have received the sanction of a majority vote of the electors of the city, at a special election, to be ordered by the city council, after twenty days’ public notice.

Eor the accomplishment of this purpose, the board of trustees is authorized to borrow a sum not exceeding ten millions of dollars, and to issue bonds therefor in the name of the city, which shall be secured by a mortgage on the line of railway and its net income, and by the pledge of the faith of the city, and a tax to be annually levied by the council, sufficient with such net income to pay the interest and provide a sinking fund for the final redemption of the bonds.

In pursuance of the authority which this act purports to give, the city council of Cincinnati has resolved, that it is essential to the interests of that city that a line of railway, to be named “ The Cincinnati Southern Railway,” shall be provided between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee ; and this action of the council has been endorsed and approved by a vote of more than ten to one of the electors of the city, at an election duly ordered and held pursuant to the requirements of the act. But, fifteen hundred of the electors of the city voted against the proposed project; and the grave question here presented, on behalf of these unwilling electors and tax payers, is whether it is within the power of the State legislature to authorize the taxation of their property by the municipality for the purpose of constructing such a line of railway, by the means and in the manner prescribed in this act.

The consequences which may reasonably be expected to result from the exercise, by municipal corporations, of powers such as this act purports to confer, both in respect to public and private interests, are so momentous as to make it difficult to overestimate the importance of the question ; and to demand at our hands the most careful investigation and deliberate consideration. This is the first instance, in the history of the State, so far as we are aAvare, in which the general assembly has undertaken to authorize municipalities to embark in the business of constructing railroads, on their own sole account, as local improvements. The railway contemplated in this instance, is several hundred miles in length, extending into other States ; the sum authorized to be expended in its construction is a large one, and should it prove inadequate for the completion of the road, we may reason ably expect it will be increased by subsequent legislation.

These considerations, and the apparent abuse of discre tion involved in declaring such a work to be so far local in its character as to justify its construction by a single city, at the sole expense of its citizens, all give a high degree of interest to the question. But we must bear in mind, that the question is one of legislative power, and not of the wisdom, or even of the justice of the manner in which that power, if it exists, has been exercised. Had we jurisdiction to pass upon the latter question, we should probably have no hesitation in declaring the act under review to be an abuse of the taxing power.

Let us then first inquire, under what conditions it becomes •competent for the judiciary to declare an attempted act of legislation, formally enacted by the general assembly, to be invalid, by reason of unconstitutionality.

Courts cannot, in our judgment, nullify an act of legislation, on the vague ground that they think it opposed to a general “ latent spirit,” supposed to pervade or underlie the constitution, but which neither its terms nor its implications clearly disclose in any of its parts. To do so would be to arrogate the power of making the constitution what the court may think it ought to be, instead of simply declaring what it is. The exercise of such a power would make the court sovereign over both constitution and people, and convert the government into a judicial despotism. Whilst we declare that legislative power can only be exercised within the limits prescribed by the constitution, we are equally bound to keep within the sphere allotted to us by the same instrument. On this subject we cannot do better than to adopt what is so well said by Judge Cooley, in his treatise on “ Constitutional Limitations,” pp. 128, 129, where, in speaking of limitations upon legislative authority, he says: “Some of these are prescribed by constitutions, but others spring from the very nature of free government. The latter must depend for their enforcement upon legislative wisdom, discretion,, and conscience. The legislature is to make laws for the public good and not for the benefit of individuals. It has control of the public moneys, and should provide for disbursing them for public purposes only. Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes, and what does properly constitute a public burden, are questions which the legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the courts, except perhaps where its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful. Where the power which is exercised is legialative in its character, the courts can enforce only those limitations which the constitution imposes, and not those implied, restrictions, which, resting in theory only, the people have been satisfied, to leave to the judgment, patriotism, and sense of justice of their representatives." And he adds on page 171: “Nor are the courts at liberty to declare an act void because, in their opinion, it is opposed to a spirit supposed to pervade the constitution but not expressed in words; ”■— citing People v. Fisher, 24 Wend. 220; Cochran v. Van Surlay, 20 Wend. 381; People v. Gallagher, 4 Mich. 244 ; Benson v. Mayor of Albany, 24 Barb. 252; Grant v. Courter, 24 Barb. 232; Wynehamer v. People, 13 N. Y. 391.

We do not understand it to be claimed that the act in question is an assumption of any of the powers specially delegated to the general government, by the constitution of the United States ; nor that , 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 decía,res to be vested in the general assembly; and, 2nd. 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 affimative, our convictions must be clear and free from doubt. Lehman v. McBride, 15 Ohio St. 291; C. W. & Z. R. B. Co. v. Com. of Clinton Co. 1 Ohio St. 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 rail road, 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. 1 Ohio St. 105; Id. 153 ; 2 Ohio St. 607 ; Id. 647 ; 6 Ohio St. 280; 7 Ohio St. 327 ; 8 Ohio St. 394; Id. 564; 11 Ohio St. 183 ; 12 Ohio St. 596 ; Id. 624; 14 Ohio St. 260 ; Id. 472 ; 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 w.e 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 Eedfield, 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 inter