#### Jacob Wyscaver et al. *v.*W. H. Atkinson et al.

Section 6 of article 8 of the constitution inhibits the combination, in any form, of the public funds or credit of any county, city, town or township, with the capital of any other person or persons, corporated or unincorporated, for the purpose of promoting any private enterprise whatever. Hence, the act of April 0, 1880 (77 Ohio L. 119), “Toauthorize certain townships to build railroads and to lease or operate the same,” is unconstitutional and void.

Appeal. Reserved in the District Court of Noble County.

This case and John T. Clark *et al. v.*Alfred Skinner *et al.,*reserved on appeal by the district court of Guernsey county, involving similar questions, have been argued and considered together.

On April 6, 1880, the general assembly passed an act entitled *“*An act to authorize certain townships to build railroads and to lease or operate the same ” *(77*Ohio L. 119).

*“*The act purports to authorize any township which by the federal census of 1810 had, and which by any subsequent federal census may have, a population of 1,684, on the conditions and in the manner set forth in the act, to issue bonds and borrow $20,000, to be repaid by taxation, and to build a railroad not exceeding seven miles in-length.”

Beaver township, Noble county, it seems, is the only township in the state to which this act can apply, and on June 12, 1880, in pursuance of its provisions, the electors of that township, by a vote of 191 against 184, decided in favor of the construction of a railroad, under a notice issued by the trustees of the township, of which the following is a copy :•

“ NOTICE.

“ Whereas, By a law enacted by the sixty-fourth general assembly of the state of Ohio, on the 6th day of April, a. d. 1880, to authorize certain townships to build railroads, to lease or operate the same, authority is conferred upon township trustees to provide for a line of railway within their townships and to borrow as a fund for that purpose a sum not exceeding *81twenty thousand dollars ($20,000), by submitting the same to the approval of the electors of said township.

“ Therefore, in compliance with said law it is

“ *Jiesolved,*By the board of trustees of Beaver township, Noble county, Ohio, That it is hereby declared to be essential to the interest of said township, that a line of railway be constructed, running through said township from the point that the Somerset railway intersects the east line of said township, and terminating where the Bellair, Beaver Valley *&*Shawnee railway intersects the west line of said township, not to exceed seven miles in length, to be known as the Beaver Valley railway, if a majority of said electors voting shall declare in favor of said railway. Therefore the qualified electors of Beaver township are hereby notified to appear at Williamsburg on the 12th day of June, a.d., 1880.

“ Polls to open between the hours of 6 and 10 o’clock a.m., and close at 6 o’clock p.m., to vote for or against said railway.

“ Those voting in favor of said railway shall have printed or written on their ballots Beaver Valley Railway, Yes; and those voting against said railway shall have printed or written on their ballots Beaver Valley Railway, No.

“ Passed May 18, 1880.

“P. W. Hannahs,

Philip Finley,

J. W. Stare,

Trustees.”

Thereupon, said township trustees, navmg executed township bonds to the amount of $20,000, for the purpose of constructing such railroad, W. H. Atkinson, Hiram Hastings, John McDaniel, A. C. Cooper and Nathan House were duly appointed trustees, under said act, for the purpose of constructing said road and disbursing the proceeds of said bonds on account thereof, whereupon the plaintiffs, residents and taxpayers of said township, commenced this action in the court of common pleas of said county against said railroad trustees, the township trustees and the township clerk, to restrain further proceedings under said act.

*82In tlie court of common pleas a perpetual injunction was decreed, as prayed for by the plaintiffs; and on appeal to tlie district court, the case was reserved for decision in this court. The case is now submitted on the pleadings.

*D. S. Spriggs, D. D., T. Cowen*and *St. Clair Kelly,*for plaintiff:

The act and the things proposed to be done under it are in conflict with section 6, article 8 : “ The general assembly shall never authorize, 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 loan its credit to, or in aid ox, any such company, corporation or association.”

We object to the act, that it is proposed thereby to “raise money for, or in aid of, or to loan the credit of the township to, or in aid of ” some other company or association within the prohibition of section 6, article 8, of the constitution. This object or purpose is apparent upon the face of the act itself, and is also shown by the allegations of the petition and answer.

In *Walker*v. *Cincinnati,*21 Ohio St. 14, the supreme court, though it evidently considered the Cincinnati Southern Railway act as an abuse of legislative power, sustained the act, for this reason, among others, that it appeared that the road provided for in that act, and which Cincinnati proposed to build under it, was an entire and independent line of railway, to be wholly built 'and owned in good faith by Cincinnati, on its own sole account, as one of the public works of the city.

The Cincinnati case was supposed to open a way by which railroad projects might evade the law and secure contributions from the municipalities of the state. Soon after came the general act, known as the Boesel law (April 23, 1872), b_y which a county', township, city, or village, under the pretense of building a railroad to be owned by it, was authorized to raise money in aid of the construction of a line of railway. That act having been found unconstitutional, a tide has now set in of special acts, having the same object in view, and *83dressed in.less disguise than in the Boesel law. If thé Beaver township act is valid, then, of course, every county, township, city and village in the state, along the line of a railway that anybody proposes to build, may, under like special acts, contribute money and credit to the project; and thus we have back again, in a worse form, all the evils of municipal subscriptions to railroads that—as is well known and admitted— the present constitution intended to “ cut up by the roots and forever put an end to.”

The Beaver township act is subject to the same objections, so far as this branch of the case is concerned, as the Boesel law. The real object or purpose is as clearly to be seen and is as well known in this case as in that.

As has been frequently said, the constitutional prohibitions are not directed against words nor names; the question is as to the meaning and substance of the act, and not as to its form. The legislature caunot authorize the municipalities to do indirectly what they cannot do directly.- *Taylor*v. *Comm’rs Ross Co.,*23 Ohio St. 22.

The act purports to authorize the township to build a railroad ; and, by its title, purports to authorize the township to lease or *operate*the road. The sum of money provided for building the road, which is *not to exceed*seven miles in length, is $20,000. No provision is made for more money to complete the road if the $20,000 should be insufficient. The -township is said to be the owner of the road, but no provision is made for the township to finish, operate, keep up and maintain, or make any use of the road, except to lease it. All that the township can do under the act, if it does anything, is to make as much road as it can with $20,000. The act does not provide for constructing, equipping, and putting a road in condition for use. Its provision on that subject is : “ They [the board of trustees] *shall expend said fund in*procuring ' the right to construct, and in constructing a railway, with all the proper *appendages,*and, if deemed necessary, a line of telegraph between the termini specified in said resolution. . . .”

The trustees are imperatively required to expend $20,000. *84They are required to expend it “ m,” or towards, the making of a piece of road which is a part of a line of railway which au association of persons is engaged in making. Thereby a contribution of $20,000 is to be made by the township to that line of railway. This is the end and aim and sole purpose of the act. Nothing else is accomplished or secured by it. It is hoped that by this, and other similar contributions by other townships, and by private capital, a line of railway may be built. If the contribution should be paid, there is no certainty that the road hoped for will be obtained. Even if the Beaver township part should be built, with or without the cooperation of private capital, it will not be an independent road, but a dependent part, over which the township could have no control.

In answer to the allegation in the petition that the money is insufficient, defendants say, not that it will be sufficient to put the road in condition for use, but that it “ will, in fact, be sufficient to construct said line of railway *as contemplated and provided for by said actP*"We can have no controversy with this allegation of the answer, for the act only contemplates and provides for the expenditure of the $20,000.

The case of *Taylor*v. *Comm'rs of Ross Co.*is decisive of this case. The two plans—that of the Boesellaw and that of the Beaver township act—are the same ; and the object and purpose of both are the same. The difference is that the B.oesel law is now being cut up into special acts. They are the same in all their material or essential features.

No way is provided by the act, nor by any law, whereby the township can use or operate it; and, as a road so situated can be of no public use or benefit, it cannot be built by taxation. Before a township can be made by an act of the legislature to assume such powers, there must be a total change in its constitutional organization, or in the duties and liabilities of railway companies and common carriers.

Cities have powers of taxation which are recognized by the constitution (section 6, article 18), but which are not expressly granted or defined by it. Townships, on the contrary, can exercise only such power of local taxation as may be conferred on *85them by the legislature for *police*purposes (section 7, article 10). It is said, that by implication, from section 5, article 8, townships have a power not defined to contract debts. In the opinion in *Cass Township*v. Dillon, 16 Ohio St., it is said this implied power is limited to debts to suppress insurrection or defend the state in war; and, in that case, the court said it was unnecessary to decide whether or not the legislature, under section 7, article 10, could authorize townships to levy taxes to pay bounties to volunteers, as the legislature, under its general grant of legislative power, could determine finally for the state and all its subdivisions as to the measures and means necessary and proper for defense in war and against invasion.

The police purposes for which townships may be authorized to levy taxes are such as belong, by ordinary usage and custom, to their local administration. Among these is not included taxation to build a railway; and certainly not, to build a railway to be *owned*by the township. A railway to be of utility must have engines, cars, and managers, and .must be engaged in its appropriate work. If the township is the owner of the road, it .owns, and must be able, if it desires to do so, to avail itself of, the revenues and profits of this work. If such railroad is to be run for profit, and the township is the owner, then the railroad is the private property of the township, and, as to it, the township is a private corporation. It cannot be, as to such property, the *quasi*corporation of the constitution. See Cooley Const. Lim. 4 ed. 206, *et seq.*

If the township railroad is to be built and run by taxation, without profit—not as a private but as a public work—is it to be burdened with the duties and liabilities of ordinary railroads ? If it is, then, until a public fund is provided for that purpose, the inhabitants of the township will probably be individually liable for its negligences, debts and defaults. See Cooley Const. Lim. 298.

As well might the legislature undertake to authorize a township to establish a bank, with the usual banking powers, or a manufacturing establishment, to give employment to the people, as a railway. Such enterprises, on the part of the state, for the benefit of the people, are said to have advocates'in other *86countries, but, as yet, we have only heard of them in the distance.

The alleged ownership of the road by the township is unreal and impossible. The real owner must be found elsewhere.

It follows from these propositions, not only that the proposed expenditure is a contribution within section 6, article 8; but, that it is to be made for a private and not a public purpose, and cannot be made by taxation ; and also, that a railroad is not one of the objects for which the legislature may authorize 'a township to levy taxes within section 7, article 10.

*Harrison, Olds & Marsh,*and *Moses M. Granger*(with whom were *Belford <& Obey),*for defendants:

I. "When the present constitution was adopted, it was recognized law, that the state government might, either by itself, or in conjunction with others, and either for cash or upon credit, construct works of internal improvement; that it might authorize such works to-be constructed by either individuals or corporations ; and that it might empower either counties, townships, or municipalities, to build them, either alone or by aiding others, and either with money or credit. The power of the legislature to authorize counties, townships, and municipalities, to *aid*railroad- companies to construct their roads, was *derived or inferred*from the competency of the legislature to empower such public agencies to *build such worhs enii/re*with their own means and for their own benefit. *C.*W. *& Z. R. R. Co.*v. *Commissioners of Clinton Co.,*1 Ohio St. 77; *S. & I. R. R. Co.*v. *Trustees of North Township,*1 Ohio St. 105; *Loomis*v. *Spencer, 1*Ohio St. 153; *Cass*v. *Dillon,*2 Ohio St. 622; *Walker v. Cincinnati,*21 Ohio St. 14; *Taylor v. Commissioners of Ross Co.,*23 Ohio St. 22.

II. It is as competent for the legislature, under the present constitution, as it was under the former, to empower county and township organizations, as well as municipalities, to undertake and execute any public work of a local character, having a special relation to their position, business and interests, either with public moneys previously raised, or upon the public credit-supported by the exercise of the taxing power. A railway is *87such a public work. Article 8, section 6, of the present constitution, prohibits them from undertaking and executing such works by means of business partnerships or direct unions with individuals or corporations in such a manner as to incur pecuniary expense in the construction of such works. It does not inhibit them from constructing such works with their own means and for their own use or benefit. *Walker*v. *Cincinnati*(supra);*Taylor*v. *Commissioners of Ross Co. (supra); Cass*v. *Dillon (supra).*

III. One of the cardinal objects of the creation of county and township organizations, as well as of incorporated cities and towns, is to provide and furnish the means of travel and transport. *Commissioners of Hamilton Co.*v. Mighels, 7 Ohio St. 107, 119; *Cass*v. *Dillon (supra); C. W. & Z. R. R. Co.*v. *Commissioners of Clinton Co.*(supra); *S. & I. R. R. Co.*v. *North Township*(supra);*Walker*v. *Cincinnati (supra).*In Ohio, township roads have always been held to be public highways ; and, therefore, in the establishment of them, private property may be condemned, in the exercise of the right of eminent domain. *Shafer*v. *Starrett, 4*Ohio St. 494; *Ferris*v. *Bramble,*5 Ohio St. 109.

IV. There is now no question but that a railway is a public highway. In the main purposes and ends which it subserves, a railway is, substantially, the same with common or township roads. It is now an established doctrine, that railroad companies perform a *public*function,—that of furnishing highways. That is to say, a railroad is so essentially public in its character as a highway that it does not lose that character even though it may be constructed by *i/ndi/oidual*enterprise aggregated into a corporation. A railroad built by a state, no one claims would be anything else than a public highway, justifying taxation for its construction and maintenance, though it could be no more open to public use than is a railroad built and owned by a corporation. See *Olcott*v. *Supervisors,*16 Wallace, 678, and cases there cited.

V. Inasmuch as states may directly, or through their political agencies, construct such means of travel and the carrying business as canals, turnpikes, bridges, and railroads, *it folíolos**88that tolls may bo imposed, by the same authority, upon passengers and freight, as remuneration for the construction of the improvements and their maintenance; or the same may be leased to individuals or corporations, for the same purposes. The power of a city to lease the right to use and operate a railroad constructed by the city as one of its local works, was recognized and declared in the cases of *Walker*v. *Cincinnati (supra),*and *Taylor*v. *Commissioners of Ross Co. (supra).*

YI. A public or governmental ownership and management of railroads is an experiment in the United States. It is one of the questions involved in the solution of the momentous railroad problem. But the legislature, if they deem it expedient, have the right to make such experiment. The courts cannot restrain or prevent the exercise of the right. *Walker*v. *Cincinnati (supra).*In 1844, the British parliament passed an act authorizing the government to purchase, after the lapse of twenty years, all railways which should in the intervening period be constructed. Sir Robert Peel stated the object of the act was to prevent railroad companies from having a permanent monopoly against the public.

YII. The act known as “the Cincinnati railway act” and the act now under discussion, are identical in principle, as well as in their provisions. The court, we think, will look in vain for any substantial difference or distinction between them. The former is the model of the latter. One is almost a literal transcript of the other. It is as competent for the legislature to empower a county, or a township, to construct a railway as one of its local improvements, as it is to empower a city to build such a work as one of its local works. The ground upon which either may be so authorized is the fact that the improvement is calculated to facilitate the social and business intercourse of the local community, and to develop the resources of such subdivision of the state. If we turn to the history of railroads, we find that the early legislators regarded them as Improved turnpikes. See 2 Am. Law. Rev. 25.

A railroad, like a common road or a turnpike, affects and benefits, directly and specially, the local public or community of a particular county or township, although, in a remote or *89collateral way, it may be said the general public will be benefited thereby. “ Trunk railways ” are necessary, and they uow abound in the United States ; but local roads penetrating every district, reaching every resource, and affording facilities and transportation to every locality, with low rates of toll, are wliat the public welfare now absolutely requires. The only mode in which the advantages and benefits of the “great trunk railroads ” can be equalized, is by local lateral roads built to them. These essential local facilities will not, at least in numerous and important instances, be afforded, unless they are furnished through the agency of county and township organizations, and municipalities. Capitalists select the projects which are the most feasible, and promise most speedy and certain returns; while there is a class of useful improvements which should be made ; and as capitalists will not make them, the interests of the local communities concerned require that they should be made at public expense. In some instances this is necessary to develop the rich resources of interior localities, remote from the “ through lines ” of railroads. Railways, like other property, cannot be obtained by the public, more than by individuals, withoxxt cost. Until the investment becomes productive, the cost must be paid out of loans or taxes. All internal improvements should be regai’ded as parts of a general system of interior commxxnications, designed to promote the general welfare, *rather than as mere im/vestments for gai/n.*

The revenues which may be derived from such improvements as that authorized by the act under examination, are unimportant compared with the more extensive agricultural, commercial, and political results, affecting the social condition of the local communities in which the improvements shall be made. Their effect will be to equalize the local advantages of the different portions of the state. The principal aim of giving public aid in the construction of railroads has been to open xxp xxndeveloped sections of the country to railroad communication. Who can estimate the wealth which such communication has created? Although some portions of the state may excel othera in producing one staple, no portion "is *90without fertility and resources of wealth. There is uo *“*waste laud ” in Ohio. Many localities in the state have ample railroad facilities, both local and general. There may be some in which railroads would be impracticable. On the other hand, there are many localities which are destitute of such facilities ; they need roads for travel and transportation to the “ trunk roads.” The act under discussion and other acts of similar nature are designed to supply that need.

YII. Even if the court could properly enter upon the inquiry as to what is wise and expedient, no more restrictive rule could be maintained than that the powers conferred on a county or township organization must *relate to*the public interests of the territory, or body of persons within its limits. *Bank of Rome*v. *Village of Rome,*18 N. Y. 38.

*It belongs to the legislature,*and *not to the courts,*to determine whether the public benefit *will be sufficient*to justify the taking of private property for the purpose of a road, canal, or other public improvement. *Beekman*v. *Saratoga & Schenectady R. R. Co.,*3 Paige, 45 ; *Harris*v. *Thompson,*9 Barb. 350. And see *Bloodgood*v. *Mohawk & Hudson R. R. Co.,*18 Wend. 9; *Buffalo & N. Y. R. R. Co.*v. *Brainard,*9 N. Y. 100. This principle was recognized in *Cass*v. *Dillon,*2 Ohio St. 622. The court in considering the effect of the adoption of the constitution of 1851 upon the *legal status*and the powers of county and township organizations and cities and towns, held that that instrument did not create the muncipalities of the state, nor attempt to enumerate their powers, but recognized them as existing bodies with powers in exercise, *to be limited only by such purposes as should, from time to time, be declared by the general assembly,*and assented to by their constituents, and valid within those limits, except when in conflict with actual prohibitions in the constitution, expressed or necessarily implied.

There is a grant of the taxing power to counties and townships, in article 10, section 7, of the constitution, for *“*police purposes.” This express grant does not operate as a limitation of the power of taxation by counties and townships, for any purpose for which *the legislature*may authorize them to con*91tract a debt or incur an obligation. Tbe phrase “ for police purposes ” is as comprehensive in its meaning as its correlative, “ police powers.” By tbe latter power, persons and property are subject to all kind of restraints and burdens in order to secure tbe general comfort, health, and prosperity of tbe state; and tbe legislature, not tbe courts, must determine wliat will secure these ends. *P. W. & B. R. Co.*v. *Bowers,*4 Houst. 506 ; *Thorpe v. B. & C. R. Co.,*27 Vt. 140 ; *Nelson*v. *V. & C. R. Co.,*26 Vt. 717.

VIII. The “ Boesel act ” (so-called) and 'the act in question are essentially different. By tbe mere statement of tbe controlling provisions of tbe former act, its unconstitutionality was exposed. From tbe nature of its provisions, tbe court, in *Taylor*v. *Commissioners of Ross Co.,*23 Ohio St. 22, found, that it appeared, beyond a rational doubt, that it was *not*tbe intention of tbe act to authorize tbe local bodies therein named, respectively, to build a railroad as one of its local public works, but that tbe obvious intention was to enable them, respectively, to aid with their money and credit railroad companies, to construct railways to be owned and operated by them.

Tbe act now before tbe court is free from every *indicia*of illegality which tbe court found were *apparent upon the face*of tbe Boesel act, and on account of which that act was declared void. Tbe act now in question is as free from any such badges of illegality as was tbe Cincinnati railway act, tbe exact model from which, as before remarked, this act is drawn.

Under tbe act in question, a railroad of *any garage*can be constructed as one of tbe local works or highways of the township. A *“*narrow-gauge railroad ” costs but a few thousand dollars per mile; and such a railroad is adapted to tbe uses and purposes of a local or neighborhood road. Numerous narrow-gauge railroads are built in Germany for tbe special purpose of accommodating tbe travel and transport of local communities at low rates. They are consta noted, maintained and operated by tbe public, at a trifling cost and expense. Tbe time is not far in tbe future when many of tbe townships of Ohio will be densely populated, and in which will be carried on many manufactures, with extensive internal and external trade and com*92meree. Whole townships will soon become substantially wrbcm, instead of rural.

Every person knows that the course of trade can be affected, and natural obstacles to trade removed, by artificial improvement ; the most potent of which are, now, railways. The general welfare demands that the productions of one locality or district should not be dependent for a market upon private carriage, while those of another are transported on a canal or by steam power.

Upon the completion of a railroad constructed under this act, it may be leased. *Walker*v. *Cincinnati (supra).*It may, therefore, be put into operation and maintained, and the township get the resulting benefits and advantages, without itself purchasing the rolling-stock or becoming a carrier. This act is not in contravention of section 6, article 8, of the constitution, unless the fact alleged in the pleadings, that it may, perhaps, be “operated and controlled by the township in connection with railways east and west of it, as shall best promote the interests of the townships,” shows that it authorizes a “ contribution” in violation of said constitutional provision. Now, if a railway owner isolates his railway and refuses to *operate*it “ in connection with other railways,” he deprives himself of many of the advantages of his railway. One of such advantages consists in the easy continuance of transit for freight and passengers. If no railways connected at Chattanooga, or other points, with the Cincinnati Southern Railway, that road would be of small benefit to Cincinnati. If a county, township, or municipality, may build, own, lease and operate a railway, why may not the railway be operated so as to make its burdens least and its profits greatest ? Cannot Cincinnati use and operate her road “ in connection with” other roads ? So, as far as concerns transit of passengers and freight, there will be practically *one li/ne*of railway from Mobile *via*Chattanooga to Cincinnati; one from Savannah *via*Chattanooga to Cincinnati, and so on.

If a township can build, own, lease and operate a railway, how can the fact that such railway touches at one end the railway of an adjoining township, and at the other end a railway *93owned by a private railway corporation, alter or destroy the constitutional right of the township ?

Notwithstanding arrangements for running and operating a township railway “in connection with” other railways, the exclusive and absolute ownership of the township continues. No debt of either of the other railways can affect the rights of the township in its road. The work constructed by the money of the township will remain the joroperty of the township. There will be no such commingling of public money with private capital as the framers of the constitution prohibited. The act before us does not contemplate, and will not permit (as did the Boesel act), such contracts and transfers as would vest in any private person, association or corporation any part of the township road, whether complete or incomplete.

Each connecting railroad will naturally increase the business and profits of each road with which it connects; but surely such incidental or resulting benefit is in no sense such a “ contribution” to another corporation or association as section 6, article 8, of the constitution forbids. The township does not thereby do any one of the acts prohibited by that section, to wit:

*(a)*It does not thereby become a stockholder in any joint-stock company, corporation or association.

(р) It does not raise money for any company: or,

*(с)*It does not loan its credit to, or in aid of, any such company. Cin*cinnati*v. *Walker (supra).*

TX. The plaintiffs have undertaken to . prove that the act is an unconstitutional and invalid enactment. How great the burden of that proof is, must be measured, in the first im stance, by the strength and extent of the *contrary*presumption, which it must overcome. These appear from the rules which this court, in *Lehman*v. McBride, 15 Ohio St. 571, laid down and declared to be “ incontrovertibly supported both by reason and authority.” These rules furnish the standard for comparing the constitution and the legislative act which is questioned ; they must be the measure of the force of the objections which are made, and the test of the soundness and conclusiveness of *94the argument offered to sustain them. They give us *the jpoint of view*from which we must examine the act.

McIlvaine, J.

The constitutionality of the act of April 6, 1880, “ To authorize certain townships to build railroads and to lease or operate the same ” (77 Ohio L. 119), is the only subject considered in this case.

The substance of this statute is to authorize Beaver township, Noble county, to procure the right of way and construct a line of railroad with all proper appendages, and also, if deemed necessary, a line of telegraph, between termini to be designated within said, township, not to exceed seven miles in length, at an expenditure of money not to exceed $20,000, to be raised by taxation, and “on the final completion of any line of railway constructed under the provisions of this act, the board of trustees shall have power to lease Ihe same to any person or persons or company as (who) will conform to the terms and conditions which shall be fixed and provided by the trustees of the township.” No other or further provision is made for using or operating the road. Nor is the purview of the act as above stated materially modified by any other provision. It may, however, be mentioned, that the statute requires the question of constructing the road to be submitted to a vote of the electors of the township; that the money may be borrowed, for which bonds secured by a mortgage on the road shall be executed; and that the construction of the road and the expenditure of the money shall be placed under the control of a board of trustees to be appointed by the court of common pleas of the county.

Whén viewed in the abstract, it is difficult to see in what manner, within the contemplation of the legislature, the proposed road could become of such public utility as to justify resort to taxation ; but when applied to the subject-matter under the existing circumstances, the legislative intent becomes quite apparent. Beaver township, Noble county, the only township to which the provisions of the act were intended to apply, is a sparsely settled agricultural district, with a population of 1,684, without railroad facilities either within’ or bordering *95upon it. "Without railroad connections, it is quite certain, that the proposed improvement would be utterly useless; hence, in view of this fact, the trustees of the township designated the location of the proposed road as follows: *“*running through said township from the point that the Somerset Railway intersects the east line of said township and terminating where the Belair, Beaver Yalley *&*Shawnee Railway intersects the west line of said township.” Neither of the connecting railways here mentioned is in existence, but only in contemplation,—the former having been authorized to be built by Somerset township, Belmont county, by an act of the legislature, similar to the one now under consideration, passed on the 18th of March, 1880. So that it is quite evident that the legislative intent, as well as that of the trustees of Beaver township, was to make the proposed road a link in a more extended route or line of railway. The same intent is manifested in the fact, that no provision was made for the operating of the proposed road by the township; but power only was given to lease the same on completion, to any person or persons or company which would conform to the terms and conditions which the trustees should prescribe; and in the event that the road would not be completed with the expenditure of money authorized, a scheme for its sale was provided by the act by foreclosing the mortgage given to secure the bonds ; so that the road, after the expenditure of $20,000, might pass into the hands of another “ person or persons or company.” Otherwise, why mortgage the road, when the faith of the township, by the terms of the statute, was pledged to the payment of the bonds; which pledge included not only all the property of the township, but all taxable property within the township *%*That a sale under the mortgage would be the probable result, might well be anticipated from the fact that the maximum sum authorized to be expended, as we know from the history of railroad building in this state, would not be sufficient to iron the track, to say nothing about the expense of the right of way, the grading, the tying or the equipping of the road. True, it may be said, this case is submitted on the pleadings, and the averment of the petition that the means pro*96vided are insufficient to build the road and pay for the right of way, is met by an averment in the answer, that “ the sum of $20,000 will, in fact, be sufficient to construct the line of road *as contemplated*and provided by said act.” This averment in the answer does not cover the allegations of the petition; and besides, the main question is, what was contemplated and provided by the act ? Was it contemplated that a complete and independent railroad should be constructed by the township *%*We think not, and therefore, without speculating as to the manner in which it was intended that the result should be accomplished, it is quite evident, to our minds, that the legislative intent, as well as that of the trustees of the township, was that the proposed road should in some manner and by some means become consolidated or connected with other roads, as part of a more extended line of railway, in order to make it at all subservient to the public welfare, and that in no other way could it be made of public utility.

The purpose and effect of the statute is to unite the means and credit of the township with those of other parties in order to promote a common enterprise, to wit: the construction of a continuous line of railway, which could not be accomplished without such combination of interests.

Such being the scheme and operation of this statute, it is clearly in violation of section 6, article 8, of the constitution, which provides : “ The general assembly shall never authorize 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 loan its credit to, or in aid of any such company, corporation or association.” In relation to this section, I cannot do better than adopt the language of C. J. Scott, in *Walker*v. *Cincinnati,*21 Ohio St. 54. He said, “ 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 xmion of public and primate 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 *97such manner as to incur pecuniary expense or liability. They may neither become stockholders, nor furnish money or credit for the benefit of parties interested therein. Though joint-stock companies, corporations and associations only are named, we do not doubt that the reason of the prohibition would render it applicable to the case of a single individual. The evil would be the same, whether the public suffered from the cupidity of a single person or from several persons associated together.” And 1 will add, that it makes no difference whether the scheme for the union of public and private money or credit originates with the party or parties representing the public or the private interests. In short, the thing prohibited is the combination in any form whatever of the public funds or credit of any county, city, town or township with the capital of any other person, whether corporated or unincorporated, for the purpose of promoting'any enterprise whatever.

From these views it is plain that the statute before us manifests an intent to do that indirectly which, if done directly, would constitute a palpable infraction of the constitution, for which reason it must be declared inoperative and void.

In conclusion I may say, that it has been sought to maintain the validity of the statute under consideration upon the principles decided in the case of *Walker*v. *Cincinnati,*21 Ohio St. 14. But as we have shown the scheme of this statute to be essentially different from the one considered in that case, it is not necessary for us to review the doctrines of that decision. On the other hand, we conceive the principles involved in this case to be substantially similar to those in the case of *Taylor*v. *Commissioners of Ross Co.,*23 Ohio St. 22, in which the statute was held to be unconstitutional, for reasons entirely satisfactory to the court then and now. "We are content to follow the doctrine of the latter case in disposing of the case before us. And while we regret the necessity of differing with the legislative department of the government in respect to the constitutionality of one of their enactments, we will express the hope that in the future, as in the past, but few occasions may arise for such difference.

*Perpetual injunction, granted as prayed for.*