UNLAWFUL MUNICIPAL AID TO A STREET RAILWAY COMPANY.

Court of Appeals for Hamilton County.

#### Harth v. City of Cincinnati et al.*

Decided, April 12, 1920.

*Constitutional Law*— Statutory *Provision for Replacement Toy Municipality of Worn Out Street Raihoay Tracks and Assessing the Cost Against the Company Invalid Because in Wffect a Lending of the City’s Credit.*

Sections 3812-2 and 3812-3, General Code (108 O. L„ 215-218) which provide for the replacement or repair of worn out or- defective rails, ties, etc., of street railway companies in streets of municipalities, when such streets are to be paved, repaired, improved, etc., and in case the railroad companies fail to do so authorize municipalities to make such replacements, repairs, etc., and to assess the' cost against the railway companies, and issue bonds in anticipation of their collection, are invalid, being in contravention of Article VII, Section 6, of the Constitution of Ohio, which prohibits municipalities from raising money for or loaning their credit to any joint stock companies, corporations, or associations.

*Walter M. Schoenle,*for plaintiff.

*Saul Zielonka,*City Solicitor, and *William Jerome Kuertz,*Asst. City Solicitor, -for defendants.

*

 Affirmed by the Supreme Court, June 22, 1920.

Hamilton, J.

Heard on appeal.

The plaintiff, Edward J. Harth, as a taxpayer of the city of Cincinnati, Hamilton county, Ohio, on January 23, 1920, in writing, requested the city solicitor of Cincinnati to file proceedings in a court of competent jurisdiction to enjoin the defendants from proceeding further under the resolutions of the- city council of Cincinnati, passed November 18, 1919, declaring the necessity of requiring the Cincinnati Street Railway Company *434and the Cincinnati Traction Company to renew and replace rails, etc., along Freeman avenue, under the ordinances of the city of Cincinnati passed November 2-5, 1919, and December 23, 1919, being ordinance No. 344-1919 and ordinance No. 388-1919, and to enjoin the city auditor from delivering to the trustees of the sinking fund of the city of Cincinnati -the assessment bonds for the improvement of Freeman avenue by the construction of rails, ties, road-bed and tracks, authorized under ordinance No.' 388-1919, in the sum of $60,800, which the board of sinking fund trustees had agrees to purchase.

The solicitor refused to bring the action requested, and the plaintiff as such taxpayer of said city brought the action on behalf of the city in the superior court of Cincinnati for purposes as stated in the above request to the city solicitor, and, by the petition, challenged the constitutionality of the statute of the state of Ohio passed April 17, 1919, found in 108 O. L... part 1, 215 to 218, inclusive, which is the authority for the ordinances and resolutions above referred to.

The defendants filed demurrers to the petition on the ground that the petition did not state facts sufficient to constitute a cause of action against them. The court below sustained the demurrers to the petition, and, the plaintiff not desiring to plead further, judgment was entered in favor of the defendants and the petition was dismissed. Thereupon, the plaintiff appealed the ease to this -court.

The question for determination involves the constitutional- or provisions of the Constitution limiting or prohibiting an as-April 17, 1919, and found in 108 O. L., 215.

In substance, this statute provides that where a municipality finds it necessary to improve a street by paving, repaving or resurfacing, and in said street there are located railroad rails, ties, roadbed or tracks of a street railway company, which rails, ties, roadbed or tracks have become worn out or defective, and, upon notice, the street railway company fails or refuses to renew, replace or reconstruct the rails, ties, roadbed or tracks in accordance with the plans and specifications furnished by the municipality, the municipality may proceed to make such *435reconstruction, and assess the costs thereof against said railway company; and, apon failure of the company to pay the assessment of the C'ost in cash, the municipality may, by ordinance, provide for the payment of said assessment in not to exceed ten annual installments with interest thereon, and bonds of the city’ may be issued in anticipation of collection of said installments. Tt is further provided that for any unpaid installments due after the expiration of the company’s franchise the company shall not be liable, unless it continues to use the track or tracks after such franchise has terminated.

Council of the city of Cincinnati has proceeded under this statute by legislation to the point of issuing and delivering bonds of the city of Cincinnati in the sum of $60,800, the estimated cost of the labor and material for replacing the rails, ties and tracks of the street railway company on Freeman avenue, Cincinnati, and the bonds have been accepted by the sinking fund trustees of the city, but delivery thereof has not been made.

The petition asks for an injunction against the delivery of the bonds and against further proceeding under and by virtue of said statutes and ordinances relating thereto.

Article 7, Sec. 6, of the Constitution of Ohio, provides:

> “No laws shall be passed authorizing any county, city, town or township, by vote of its -citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or to loan its credit to, or in aid of, any such company, corporation or association.”

The question for determination is: Does the statute authorize a municipality to raise money for, or loan its credit to or in aid of a street railway company or companies? If so, it necessarily contravenes Art. 7, Section 6, of the Constitution of Ohio, and the statute and all proceedings thereunder would be invalid.

It is urged in defense of the statute that tire purpose of the statute is to enable the municipality, while the street is undergoing improvement, to place the tracks, rails, etc., of the street railway company in good condition, thereby avoiding the’ frequent tearing up or damage to the street after the improvement *436is made, and that by doing the work all at one time better results are obtained.

However laudable the motive may be it is not within the province of the court to consider the wisdom or laudability of a purpose, and these considerations can have nothing to do with the authority of a municipality to loan its credit, if it does' so. ‘ ‘ The constitution is the superior law arid the ultimate criterion. The court’s sole duty is to enforce it.” *State*v. *Cincinnati St. Ry.,*97 Ohio St., 283, 309.

Stripped of all verbiage and considered from the standpoint of legal interpretation only, we find this situation. Under authority of the statute in question the city notified the street railway company that on certain streets under improvement its rails, ties, tracks, etc., were worn out and defective; that the city had made all necessary surveys and estimates of the cost of replacing these tracks, rails and ties, both for labor and material ; that if the railway company did. not within the time named in the ordinance furnish the material and labor to replace the tracks, rails, ties,- etc., the city would proceed to contract on its own responsibility to have this material furnished and work done; that when completed it would be the property of the railway company and the company would be given an opportunity to pay the cost thereof in cash, but if it did not do so the city would permit it to pay for the same in ten equal annual installments; that to raise the initial money to pay the costs of the construction to the contractor the city would issue its bonds, pledging the full faith and credit of the city to the payment of the bonds; and that the city would take a lien on all the property of the company to secure the payment of the installments as they should become due.

In effect the city further said to the street railway company that in ease its franchise expired before all installments were paid it would be relieved from the further payment of any installments unless it continued to use the tracks after the franchise expired.

Under what guise or analysis of facts can it be claimed that this is not a furnishing of money or loaning of the credit of the *437city? It is not a part of the street improvement. If it were, this cost could be assessed upon the abutting property.

The assertion that it would give long life to the street by preventing the street car company from tearing up the tracks or laying defective materials only argues an excuse for the violation of an express inhibition of the constitution.

It is urged that the proceeding is authorized by the police power possessed by the municipality, but police power is only authorized for the benefit of the health, morals, and, perhaps, in some instances, safety of the people. Certainly the replacing of worn out rails and ties of the railway company can in no wise be construed as affecting the public health or morals of the community. The question of police power has no place in the consideration of this case.

If the statute in question were to be upheld as not violating the provisions of the constitution, then a statute providing that a municipality may at the time of the improvement of the street relay new gas pipes, new conduits, new water mains, if the water system is privately owned, and the issuing of .bonds under such circumstances, would likewise be constitutional. And, if a municipality may do all these things under the present statute, or similar statutes, then it becomes at once apparent that the city may be furnishing the money or loaning its credit to the maintenance of all public utilities. This illustration is suggested to show where such statutes might lead, and brings the proposition to the very groundwork of the reason of the constitutional inhibition.

In the case of *Taylor*v. *Ross*Co. (Comrs.), 23 Ohio St., 22, at page 83, the court says:

> “Where public credit or money is furnished, to be used in part construction of a work, which, under the statute authorizing its construction, must be completed, if completed at all, by other parties out of their own means, who are to own or have the beneficial control and management of the work when completed, the public money or credit thus used, can only be regarded, within the meaning of the constitutional provision in question, as furnished for, or in aid of such parties.”

*438While the main question in that case was a joint transaction, which is prohibited, the principle applying to the instant ease is clearly stated. In this ease the city is advancing the money to the contractor, and issuing its bonds, pledging the full faith and credit of the city to their payment, and when the work is completed the ownership is absolutely in the street railway company. The mandate of the constitution is that such aids shall never be authorized.

While it may not at first be apparent that the statute under consideration manifests an intent to authorize the municipality to raise money or to loan its credit directly, examination and reflection shows that it does so indirectly. It. is axiomatic that what the General Assembly is prohibited from doing directly, it has not power to do indirectly. *Taylor*v. *Ross Co. (Comrs.), supra,*and *Wyscaver*v. *Atkinson,*37 Ohio St., 80.

The assessments contemplated and the bonds sought to be issued are not assessments for street improvements,' but the proceeding is an attempt to assess or issue bonds of the city for the payment of the work and material for replacing, relaying and repairing worn out and defective rails, ties and tracks, the private property of the street railway company. This we hold to be raising money for or loaning its credit to the street railway company, which is prohibited by Art. 7, Sec., 6, of the Constitution of Ohio. We, therefore, hold that supplementary Secs. 3812-2 and 3812-3, G. C., of Ohio, reported in 108 O. L., 215, passed April 17, 1919, contravene Art. 7, Sec. 6, of the Constitution of Ohio, and are therefore invalid, and that all proceedings conducted by the city under and by virtue of the authority contained in said statutes are void.

A perpetual injunction will be granted.

Shohl, J., concurs.

Cushing, J.,

dissenting. I do not concur in the opinion of the majority of the court. Their determination of the case is based solely on a consideration of Art. 7, Sec. 6, of the Constitution, and an extract from the' opinion in the case of *Tailor**439v. *Ross Co. (Comrs.),*23 Ohio St., 22, at page 83. They have not considered Art. 13, See. 6, relating to the powers of cities in assessment cases.

The facts in *Taylor*v. *Ross Co. (Comrs.), supra,*were that a statute authorized a county, township or municipality to levy taxes not above a given per cent, on the taxable property of the locality, for the purpose of building so much of a railroad as can.be built for that amount, and it was in fact a gift to the railroad company.

The questions that have been litigated under Art. 8, Sec. 6, of the Constitution, have been the use of money or credit of the municipality in private enterprises for profit, or as bonuses. These are both clearly prohibited.

In the case of *State*v. *Cincinnati Street Railway Co.,*97 Ohio St., 283, 303, the court in its opinion quotes with approval from *Walker*v. *Cincinnati,*21 Ohio St., 14, 54:

> ‘ ‘ The mischief which this section interdicts is a business partnership between a municipality or subdivision of the state, and individuals or private corporations or associations. It forbids the union of public and private capital or credit in any enterprise whatever. In no project originated by individuals, whether associated or otherwise, with a view to gain, are the municipal bodies named permitted to participate in such manner as to incur pecuniary expense or liability. They may neither become- stockholders nor furnish money or credit for the benefit of the parties interested therein.”

Justice Brewer delivering the opinion of the court in *Pleasant Township*v. *Aetna Life Ins. Co.,*138 U. S., 67, at page 75 (34 L. Ed., 864), approves the language of the *Supreme*Court of Ohio in *Walker*v. *Cincinnati, supra.*At page 69 he says:

> “This provision was inserted in the constitution, and adopted by the people, in view of the fact then and since well known in the history of all states, particularly in the West, that municipal bonds to aid railroads were freely voted in expectation of large resulting benefits — an expectation frequently disappointed. It was a declaration of the deliberate judgment of the people of Ohio that public aid to such *quasi*public enterprises was unwise, and should be stopped.”

*440In case tbe city is empowered to construct a completed street for tbe convenience of tbe public, for travel by vehicle and street car^ it proposes to charge the part of the cost it has determined is for the benefit of the railway companies to them.

It is claimed by the city that the statutes and ordinances are within the provision of the Constitution authorizing it to make improvements and levy assessments to pay for them, and that the necessity for an improvement and the authority to levy assessments to pay for it are by the Constitution vested in the legislative branch of the government and can not be interfered with by a court.

In *Scovil*v. *Cleveland,*1 Ohio St., 126, Judge Ranney, at page 137, quotes from the opinion of Chief Justice Marshall in *Providence Bank*v. *Billings,*29 U. S. (4 Pet.), 514 (7 L. Ed., 939).

> ‘1 The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. * * »:< p0yrer may ke abused, but the interest, wisdom and justice of the representative body, and its relations with its constituents, furnish the. only security against unjust and excessive taxation, as well as against unwise legislation.”

In *Hill*v. *Higdon,*5 Ohio St., 243, Judge Ranney, in passing on the authority of the legislative body to levy or authorize assessments, says at page 244:

> “The subject is very important in its practical bearings, and not without' serious difficulty; and for myself I am bound to admit, that the: doubts which I at first entertained have not been entirely removed. But it is not upon *doubts*that this case is to be decided. The .question can only be solved by a construction of several provisions of the constitution; and a proper construction can- only be given, when the *intention*of those who framed and adopted that ■ instrument is ascertained. We are bound to presume that the Generál Assembly have continued to pass laws, conferring this' authority, upon a settled conviction of their power to do so; and it-is only when a *clear*incompatibility between tbe constitution and'the lay is made to appear, that the courts are authorized to interfere.”

*441In *Parsons*v. *Columbus,*50 Ohio St., 460, 467, Judge Minshall quotes with approval the following language:

> “This obviously enjoins upon the legislature the duty of providing suitable and proper restrictions upon the enumerated powers; but in what these restrictions shall consist, and how they shall be imposed, are subjects left to the discretion or sense of duty of the legislative department, with the exercise of which the courts can not interfere.” ; ,

In *Walker*v. *Cincinnati,*21 Ohio St., 14, the fifth proposition of the syllabus is:

> ‘! The authority and duty to prevent an abuse of the powers of taxation and assessment by municipal corporations, is entrusted by the Constitution to the General Assembly, and not to the courts of the state. And the power of the legislature to authorize local taxation can not. be judicially denied on the ground that the purpose for which it is exercised is not' local, unless the absence of all special local interest is clearly apparent.”

The question in this case, as I understand it, is whether the statute and ordinance amount to loaning credit under Art. -7, See. 6, or to an assessment proceeding under Art. 13, See. 6, of the Constitution.

Article 13, Sec. 6, is as follows:

> “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.”

In addition to authorizing the organization of cities, it directs the legislature to pass laws restricting their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit.

Loaning credit, .used in this provision of the Constitution, must be in connection with the powers granted — among, them levying assessments.- Assessments shall be levied when the coun*442cil shall have declared that the improvement is conducive to the public convenience or welfare. Sec. 3812, G. C.

Heretofore assessments have only been levied on real property abutting the improvement. I have not found any cases, or provisions of the constitution limiting or prohibiting an assessment on property within the municipality, particularly when it has been benefited by the improvement.

A consideration of the apparent conflict in the use of the words “loaning credit” in Art. 7, Sec. 6, and Art. 13, Section 6, leads to the conclusion that they are not in conflict.

Article 7, Sec. 6, is a general provision limiting the power of the legislature in its enactment of laws.

Art. 13, Sec. 6, is special, being limited to subjects specified —among them that of1 assessments.

It is the law that all provisions of an instrument, if they *part'*must be given effect, and where two provisions of a constitution are in conflict, one being general and the other special, and the special relates to a particular subject or subjects, its provisions are to control over the general provision.

Judge Shauck in delivering the opinion of the court in *Akron*v. *Roth,*88 Ohio St., 456, 461, says:

> “The rule is that special provisions relating to a subject will control general provisions in which, but for special provisions, the subject might be regarded as embraced.”

In *People*v. *Metz,*193 N. Y., 148, 149, 157 (24 L. R. A., 201n), the court said:

> “In construing a constitution all its provisions relating directly or indirectly to the same subject must be read together and any amendment in conflict with prior provisions must control, as it is the latest expression of the people.”

This ease is cited in *People*v. *Cassidy, 50 Col.,*at page *520.*

Judge Shaw in *Mascolo, In re, 25*Cal. App., 92, says:

> “A construction which raises a conflict between parts of a constitution is inadmissible when by any reasonable interpretation they may be made to harmonize, and in case of irreconcil*443able repugnancy tbe provision last in order of time should prevail.”

In *Hoag*v. *WasMngton-Oregon Corp.,*75 Ore., 588, 613, the Court says:

> “It is a familiar rule of construction that, where two provisions of a written constitution are repjugnant to each other, that which is last in order of time and in local position is to be preferred.”

There is no question but that the proper construction of streets, including railway tracks, is for the welfare of the public. It saves the expense to the property owners and taxpayers of frequent repair and resurfacing of streets. The convenience of the public is promoted by having streets and car tracks suitable for rapid transit. The determination of the question of public welfare and convenience is vested in the legislative branch of the government.

The conclusions deducible from decided 'eases and the considerations stated are that the legislation in question is within the purview of Art. 13, See. 6, of the Constitution, and that that section governs; that the convenience of the public, the wisdom and justice of such legislation, rest in the legislative branch of the government, with which the judicial branch may not interfere; that the legislation here complained of is not clearly in violation of constitutional prohibition, and must therefore be upheld.