The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-03-03
THE 1NJUNcrIoN;CAsE.
Judge Melyin,s Decision.
From the Sunday News.l

IOT I'LL luJuhSei"i v"
of Wheeling from subscribing to the
Wheeling and Lake Erie Railroad
and the Wheeling and Ohio Union
Railroad Company, was decided.
The Injunction was awarded. The
opinion was oral, but we are enabled
TO lay before cur readers the follow
ing abstract thereof:
The Judge after reciting the facts
concerning the legislative enact
ments of February, 1872, authoriz-
ing the subscriptions on the part OF
the city, and the action of the Coun-
ell Hereunder submitting the mat
ter to the voters of the city in June,
1872. and the ordinances of January,
1873, directing the subscriptions and
the issue of bonds in payment there
Of proceeded to state his views as to
the proper construction OF section 3
of article 10 of the Constitution,
bearing upon the right of cities to
incur Indebtedness for enterprises of
this kind. We quote the section
entire:
"S. Nocounty, city, school district,
or municipal corporation, except III
eases where such corporations nave
already authorized their bonds TO be
issued, shall hereafter be allowed 10
become indebted, in any manner, or
for any purpose, to an amount,
including existing Indebtedness,
in the aggregate, exceeding. fve
per centum on the value OF the
taxable property therein, to be ascer-
tanned by the last assessment 1or
State and county taxes, previous 10
the mourning of such Indebtedness !;
nor without, at the same time, pro-
viding for the collection OF a direct
annual tax, sufficient to pay, an
nually. the interest on such debt,
and the principal thereof, within
and not exceeding thirty-four years !;
Propided, That no debt shall be con-
tracted under this section, unless all
ouestions'connected with the same,
shall have been first submitted to a
vote of the people, and have received
three-fifths of all the votes cast Tor
and against the same"
1t being conceded that the pro.
posed subscriptions, or either OF
them, would increase the indebted
ness of the city to an amount, in
Gliding existing Indebtedness, in the
aggregate, exceeding five per cent.
of the value of the taxable property
of the CITY, ascertained as provided
in the section quoted, and the Con-
stitution having gone into effect on
the odd of August, 1871, it seems
clear that there is, in his case, at
peremptory inhibition on the Council
from proceeding farther in the mat
ter. The language used was COM
mented upon as bearing out this
view. and the counter suggestions OF
the counsel opposing the application
were considered.
1t had been cOntended that the
words "shall hereafter be allowed'
referred to legislative authority
that they should read as if followed
bv sby the Legislature" and thlt,
a. result, the city had authority to
act under the Legislative enactments
on the subject passed prior to the
adoption of the Constitution. But
this construction was not deemed the
true one. The language is general
and sweeping, and imports a pro-
hibition in any case, except where
bonds had issued prior to the I'D OF
August, 1872. Other sections were
referred to by the Judge as throwing
light upon the intention of the
trainers. When they had intended
to prohibit the Legislature from
taking action in given case, they
had indicated their intention in
terms. No subscription such as
these can be made by municipal
corporation, under any circum-
stances, except by virtue - legisla-
tive authority, and it is not easy to
perceive why they changed the form
of expression in this particular sec
tlon. And herein this case differs
from the one in Ohio, tCass as. Dill
lon , Ohio State, somewhat SINH
lar in facts, where q different ruling
was made by a majority of the
Judges the Constitution Of that State
providing that thereafter the Cen
eral Assembly should not give the
authority.
1t had been claimed, also, that
Section 3 of Article II Corporations
governed the case. That section
saves, for two years, charters and
grants of exclusive and special priv
iliges, under which an organization
shall not have taken place, or which
shall not have been in operation dur
ring thatperiod. But this was hardly
intended rs a proviso to a section in
another article relating to AN entirely
different subject. Nor does the lam
euage used warrant that construc-
ton. Legislative authority tomake
of the character given
to municipal corporations, cannot be
properly designated as a charter or
grant of special privileges. How
can there be an organization under
the subscriptions? Or how can they
be said to have been in operation for
any time? The whole article relates
to corporations other than municipal.
The Judge stated, in concluding,
that although far from unfriendly to
these enterprises, having, indeed,
voted for both subscriptions, he was
to hold that the Consti-
tutional provision limiting the in
debtednessof municipal corporations,
was decisive of the application, and
the Injunction would therefore be |