Daily national Democrat., 1859-05-01

ture could not authorize the county OF ! ubf
to take stock for the reason that the Con-
stitution says the State shall not subscribe
and does not say that the county of Yubf
shall not The restriction goes no further
than the language carries it, 1t comprehend:
the particular act and party interdicted-
none other.
There Is no difference in this respect be-
tween municipal corporation and county
They are both political and geographical di-
visions of the State They are both the sub
jects of its political dominion. The loca
governments derive their powers from tn,
paramount political head, which, while il
cedes to certain local agents certain powers
does not thereby remit its rightful and ulti-
mate domain for it would be strange if til,
political power could appoint agents and del
egate powers Of a political nature and mo-
itself be able to do or regulate what is don,
or regulated solely by virtue of its permission
and authority.
1t may be conceded that the Board of Su
pervisors had no power to make this sub
scrption without the Act of the Legislature.
1t had no power because il was not author
lied by any law. But this law gave them
the authority.
Having seen that there is nothing peculiar
to our Constitution which denies effect to
this Act, we are brought to consider the val
idity of the statute on more general princi-
pies The question is net new. 1t has fre-
quently arisen in other states, and the decs
ions, we believe, have been uniform Few
questions have been more thoroughly argued
or more elaborately considered In New
York, Mississippi, Ohio, Tennessee, Pennsyl
vania, Virginia, Kentucky, North Carolina
and Indiana the binding force of such law
has been affirmed.
The case of the City of Aurora VS. West,
e Ind. 74,) is so pertinent to the leading
points involved here, that it deserves par
ticuar notice The Legislature, by Act, in
cooperating the town of Aurora, empowered
the city to take stock in any chartered com
pany for making roads to said city," and that
they might issue bonds, etc; this they had
power to do whenever a majority of the
qualified voters of the city required it, The
City Council subscribed $4,000 of the capi
tai stock of the Ohio and Mississippi Railroad
Company. The Constitution of Indiana for.
babe the State going in debt for internal i'm
provements, and also forbade counties but
cities were not expressly forbidden. In that
case, as in this, the spirit of the Constitution
was invoked by counsel We extract por-
ton of the opinion of the Court because it
not only fully receives our appreciation, but
comprises, within a short compass, a full an
swer to the argument of the appellants The
Court says:
"The provisions in the new Constitution,
then on the question under consideration,
amount to this they admit the power of the
State to construct works of internal improve
ment but forbid her, in her State capacity,
to create debt for the purpose. They grant
that the power may be conferred upon coun-
ties to take stock in companies chartered to
construct such works, but require simultane-
Gus payment. They do not prohibit the con
ferring of the power to take stock upon cities
either by means of cash or credit, or of other
wise aiding these undertakings, but they pro-
hibit the State from assuming any debts cities
may contract.
"The implication, from these provisions,
in regard to cities, if there be any, is in favor
of their power to take stock, etc At all
events, If they ever possessed the power,
that power is left unimpaired The Conven-
tion did not consider that an inhibition upon
the State to construct internal improvements,
in her capacity as such, by means of loans.
prohibited her from authorizing other agen-
ces to construct them by such means hence,
they preceded to impose the restriction, as
to counties, but did not extend it to cities,
though naming them in the same section
The maxim therefore, that the expression of
one excludes the other, must apply.
Suppose the Constitution said that the
State should not, by means of her officers ard
funds, construct railroads, would the provis
ions be contrued to prohibit the State from
ehartering companies for that purpose? 1t
would rather imply that they were to be con
structed by sucl agencies for an intention
to entirely arrest the Improvement of the
State could not be presumed.
If then, cities, under the old Constitution
or it would seem, under, perhaps. any Con
stitution, could be invested by the Legisla-
ture with the power of aiding works of inter
lal improvement, they still can be invested
with such power
The question therefore presents itself can
such power be given to a city OF the poll
cy of comforting it, we have said all that it
becomes us to say. in the city of Lafayette v.
Cox, (5 Ind. r. 3S) to which we refer OF
the capacity to confer it, we have not hereto
fore expressed an opinion That is now the
question. We have seen that no express con-
stitutional provision stands in the way of
granting such power to a city. as we hold
that the prohibition in the constitution upon
the Legislature to create a State debt, does
not prohibit that body from authorizing cities
to create debts This is our construction of
the language of the Constitution. But it is
insisted that the power is not a legitimate
part of the authority of "A municipal corpora
tion-that it is outside of the purpose for
which such corporations are created-anG
that this is a sufficient reason for holding
them competent to receive a grant of such
power. But is not this begging the very
question to be decided? For what precise
purposes are municipal corporations created
How much power and no more nor less is
embraced by the idea of a municipal corpora
ton? We have not been sati, factorly en-
lightened on this point If the Legislature
can confer little legislative power upon a
city for local objects, can it not confer great.
er amount for the same objects? 1t would
hardly be said that cities were created sim
ply to establish and enforce police regula-
tions-to maintain order amongst the eiti-
zens By common custom, they establish
sanitary regulations, rules governing markets,
etc, and on what principle do they exercise
these powers? They go farther. They con
struet streets, sidewalks, bridges, etc. within
their limits They do more. They build
wharves to accommodate their trade and
commerce. coming to them from a distance
they construct r-works-going, for the
purpose, miles beyond corporate limits They
construct works for lightning. etc. These,
and other like powers, though not existing
in every one, yet, we believe, all coneode
may be conferred upon municipal corpora
tions as legitimate, as constitutional, though,
in their exercise, the citizens are not several
ly equally benefited in proportion to taxes
paid. (See Lafayette " Cox, Iud r., SS J
Now, if city may build wharves, or take
stock in companies created to build them, TO