The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1874-07-14
w, g. l.. e. RAILROAD.
Henry K9IAst and Others Pisintihs and
Appellees,

.lants. In the Supreme Court Of Az.
peals. --..-..e=
SYLLABUS of points adjudicated by the
supreme Court of Appeals in which the
four Judges thereof concurred, viz
BY an Acc of the Legislature passed the
18th day of February, 1872, entitled,
IAN act to authorize the city of Wheel
ing to subscribe to the capital stock OF
the Wheeling and Lake Erie Railroad
COMPANY the Council of the city Of
Wheeling were authorized TO subscribe
in the name of the city to the capital
stock of said company to an amount not
exceeding S300,O0000, and pay for the
same in the bonds of the city, provided
not less than three-ffths of the voters of
the city who voted on the question were
in favor of the same. BY an act Of the
Legislature passed February the 18th,
1872. entitled, Gan act to incorporate the
Wheeling and Ohio Union Railroad
Company and the 18th section thereof,
the Council of said city was authorized
to subscribe in the name and on behalf Of
the city to the capital of said company, to
an amount not exceeding five hundred
thousand dollars, and might pay for the
subscription in the bonds of the city or
otherwise, provided three-ffths Of the
voters of said city voting on the question
voted for the subscriptions. Each OF said
acts authorized the Council of the city to
submit to the voters by an election the
question of the subscriptions. The Coun--
Gil by two separate ordinances submitted
to the people the question of the three
hundred thousand dollar subscription
under each act, the election to take place
on the lst day of June, 1872. On that
day the election WAS duly held, and three
fifths of the voters of the city voting at the
election voted in favor of each subscrlp-
ton. =
Aftcrward, on the 22d day ot August
1872, the people of the State adopted
new Constitution, which took effect on
that dav,,by express provision OF the
schedule thereto. The 9Th section of the
10th article of the Constitution so adopted
is in these words viz: - No county, city,
school district or municipal corporation,
except in cases where such corporations
have already authorized their bonds to be
issued, shall hereafter be allowed to be-
come indebted jim any manner, or for any
purpose, to All amount. including existing
Indebtedness, in the aggregate exceeding
five per centum OH the value OF the tax
able property therein, to be aacertalned
bv the last assessment for State and
county taxes previous TO the mourning OF
such indebtedness; nor without, at the
same time, providing for the collection Of
a direct annual tax sufficient to pay an
nuallv the interest on such debt, and the
principal thereof within, and not exceed
Ing thirty-fOur years; PrOrided, That no
debt shall be contracted under this Sec
ton. unless all questions connected with
the same shall have. been first submitted
to vote of the people, and have received
three-ftths of all the votes cast for and
against the same" After the adoption
of the new Constitution, and after it had
taken effect and on the Goth day of JAN
uary. 1873, the Council of the city, by
two separate ordinances, appointed three
commissioners (thc same i'll each case to
subscribe to the stock of each of said
companies the said sum of three hundred
thousand dollars, to be paid in the bonds
of the city, and directing when such
bonds should be paid by said commission
crs. In each case the bonds To be payable
in the city of New York, bearing seven
per cent. interest, payable scmi-annually,
and the principal payable in thirty years.
The Council failed to provide for the col
lection of direct annual tax sufficient to
pay annually the interest on the debt, to
b., created by such subscription or
any part thereof. 1t is admitted that the
subscription of both said sums OF three
hundred thousand dollars, or either of
them would increase the debt of the city
beyond the limit prescribed by the said
Sth section of the 10th article ofthe Con-
stitution. The making Of each of said
subscriptions, were by the council made
subject to conditions. Before either of
the subscriptions to the stock of said com
panics were made, H. X. List and other
resident voters, owners of property, and
tax PAYERS in said city, who sued, Ill their
own bchalf.as well rs of all other tax pay
crs of the city, except defendants, hled
in the Circuit Court of the county oil
Ohio, their bill of injunction against the
said city, the members of the Council,
and said commissioners enjoining and re-
straining them from subscribing to the
stock of said company, or either OF
them the amounts aforesaid payable IN
the bonds of the city or any part thereof,
or contract debt therefor or any part
thereof Held: 90 -.
l. That the provisions Of said acts OF
the legislature authorizing the Council
of the city TO subscribe stock to each OF
said companies, conferred power upon
Il public corporation Of government
which could be modified, changed, en-
largcd. restrained, or repealed by the con-
stittuion. the said acts i'll neither case I'M
porting contract, within the meaning
of the clause of the Constitution OF the
United States, prohibiting State from
passing law impairing the obligation o;
contracts.
y. The ordinances submitting said sub
scriptions tO the vote of the voters, and
the mere vote of the prescribed number
of voters for the subscription did not IN
and of themselves together or separately.
form such II contract with the railroad
company as would be protected by the
10th section of the lst article of the Con-
stitution of the United States. tntllth"
subscriptions were each made the con-
tract i'm each case was unoIccutcd.
3. The said 9Th section of the 10Th ar
ticle of the Constitution Of the State Is
not addressed alone to the legislature,
but is addressed To- tn" several counties,
cities. &c, and all other departments and
persons in the State, and took effect and
became binding and operative 50 far ms 1t
is prohibitory and restrictive in its pro-
visions upon counties, cities, &c, on and
from the 22d day Of August, 1872, and
the action of the Council Of the city in
commissioners TO make SAID
subscriptions payable in the bonds Of the
city. was under the circumstances with
out authority of law. and for said sub
>criptions to be made for said amounts,
and A debt thereby b. created therefor or
for any part thereof, payable in the bonds
I. H.. ,;t,. ,,.,,,l5 he in violation of the