The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1872-12-30
THE OHIO RAILROAD (BoEsEL)
LAW.
A PalpabIc Violation of the State
ConstItutiou-.Proceedings Under
1t Null and Void.
The Cincinnati Decision Not In
Point nor Conclusive,
Opinion of Judges Ranney and Will
Hanson, of Cleveland.

From Fridays Cleveland HeAld.)
CLEVELAND, Dec. 81, 1874
GENTLEMEN We have the honor to
acknowledge the receipt Of your letter OF
the 10th inst, asking our opinion OF the
legal validity OF certain proceedings now
pending, looking TO the construction of a
railroad by this city, from this point 10
Akron, to be accomplished by the issue OF
bonds by the city Tor $1,000, 600, and TO
the operation OF the road when com.
pleted, or It's lease or sale to railroad
corporation. We hasten TO give you our
best impressions upon the subject, with
the understanding that the limits oil this
communication will not admit Of any ex.
tended statement Of the reasons upon
which our conclusions are based. Much
less shall we undertake to say what de.
ciai0n may be expected from the judicial
tribunals, should the matter come before
them Nothing short of omnscience
would be adequate to such an undertak.
ing. We give you, however, the results
Ct considerable investigation and retlcc.
ton, derived In great measure from par.
tiCipatiOn in official duties, which we
have hitherto been called upon to per.
form. For nearly twenty years after the
adoption Ol the present Constitution oil
the State, we believe 1t to have been the
general understanding that counties, cities
and towns were prohibited from mourning
Indebtedness to build, or aid In thu build.
ing Of railroads. THIS understanding
was common to those who had aided in
framing the instrument, and TO the public
at large; and hence, while oil did not con.
cur in its policy, no statute was passed
during this long period, giving any such
authority. But in the year 1869, arising
from the great anxiety Of the people Of
Cincinnati for railroad from that city
into the southern country, q bill 10 &C.
compllsh this object was presented to the
Legislature, and by that body enacted
into law, which, In the opinion Of its
authors, avoided or evaded all constitu.
tionAl objections. It authorized the city
TO incur an Indebtedness Of 100000
and with the proceeds tn construct a
railroad from that to some other fixed
point, which was afterwards designated
as Chattanooga, in the State Of Teunes.
see.
The constitutional validity OF this act
was drawn Ia question in the case Of
Walker rS. The City Of Cincinnati, 81 o.
st. r, IA, and It's constitutionality was
affirmed by the Supreme Court.
This decision undoubtedly INDUCED,
hut in our opinion is very far from iusti-
flying, the passage Of the General Act, I'm.
der which the proceedings to which you
call our attention, are now pursued.
While it Is due to candor to say, that,
with Difference to the superior wisdom Of
the courts, we do not concur in the cor
rectness OF this decision, and are as yet
wholly unable 10 sec, how state, under
the positive disability Of contracting any
debt for purposes Of internal improve
ment," and absolutely destitute Of any
authority TO construct any sort Of i'm.
provemcnt beyond one Of its mu-
niClpsl divisions to contract an i'm
mense debt to construct a railroad
for hundreds Of miles in foreign ter
ritory. Nevertheless, for the purposes OF
this opinion, we accept this decision as a
tnality, and the questions raised and de.
cided as settled. But the fact still remains,
that the Constitution in the 9Th section Of
the eighth article expressly ordains that
"thc General Assembly shall never author.
orize any county, city, town or township,
by vote oil It's citizens or otherwise, to DO.
come stockholder in any Joint stock
company, corporation or association
whatever; or to raise moneyJor, or loan tS
credit to, or in aid Of, any such company,
corporation or association" In this decis.
ion oil the Court, the effect OF this provis.
vision Is avoided, by assuming that the
improvement authorized by that act, was
10 be constructed by the city ",eih III
ouH means, and on itS o,0n cole account"
while 1t Is expressly declared that this
section "lorblds the union oil public and
private capital or credit in any enterprise
whatever. In no project originated by
individuals, whether associated or other
wise, with q view to gain, are the NUM-
cipal bodies named permitted 10 particI.
pate In such manner as to incur pecunl-
ary expense or liability. They may
neither become stockholders, nor furnish
money or credit Tor the benefit Of tho par.
ties interested therein. Though joint
stock companies, corporations aud asso.
Citations only are named, we do not doubt
that the reason Of the prohibition would
render 1t applicable to The case of single
individual. The evil would DO the same,
whether the public suffered from the Gu.
pidity OF a single person, or from that Of
several persons associated together"
To this statement Of what Is within the
prohibitions Of this section, II may be
proper to add a statement Of the reasons
tor the adoption Of the section by The
Convention and the people, as given BY
me Court. They say: "Under the Con-
sutuhon OF 1909, numerous special acts
o. legislation had authorized counties,
CUES, towns and townships 10 become
stockholders In private corporations. The
sock thus subscribed by the local author.
iueS was generally authorized 10 DO paid
toF BY the issue Of bonds, which were 10
oe paid BY taxes assessed upon the prop-
cry Of their constituent bodies. MANY
OF these enterprises proved unnroFI.hIs