The Cincinnati daily star. [volume] ([Cincinnati, Ohio]) 1875-1880, 1877-06-12
OUR WHITE ELEPHANT.
.sThis Proposed dAgreeme mt i m Com
ilict with Law, Invalid
and VOil.1

and EOi1.'
The following opinion OF Judge
Hoadly in relation to the proposed
agreement between the Trustees Of che
Southern Railway Company and the
Common Carrier Company is interest,"
ing reading: =, p --.GS,,
Henry Mack, Esq, Cincinnati. Ohio:
DEAR sIR.-We have examined with
care the proposed MEMORANDUM OF
agreement between the Trustees Of the
Cincinnati Southern Railway and the
Cincinnati Southern Railway Company,
in the light of the legal powers and re-
strictions which the Constitution OF
struction of the railway and the organt-
zation of the company provide and re-
quire to be applied to the subject matter
aud in the light OF the examination made
by the Supreme Court i'll the cases or
Walker vs.. Cincinnati (2l Olio state,
l4), and Taylor VS.. the CommIs IssioaeTs
OF Ross County (23 Ohio State, 2!).
Ii is not doubted that the Trustees
may lease the unfinished portion of the
railway to an incorporated company,
and that they may agree Oh any terms
and conditions Of sucn lease not in con.
tlict with the Constitution and laws OF
the State.
But the arrangement must be lease.
not u partnership OF association for CON-
mon profit. The Constitution, Article
s, Section 6. forbids the city from be-
coming stockholder in any 'JOint stock
company, corporation or association
whatever"
And in the case OF Taylor VS.. the CON-
mlssioners Of Ross County the Supreme
Court have declded that this, which cAa
not be me dlrecuy, may not be acco!r-
plished by indirection.
We are of opinion that this agreement
is not lease, but that IL establishes
company or association composed OF the
TWO parties, the city represented by tae
Trustees and the railway company, by
which the city furnishes the railway,
the telegraph and part uf the u.pmenl,
fuel, water aud supplies, tools aud ma-
terialI, agrees at its own expense 10
Keep tue railway in repair and to pro-
vide depots, platforms, engine-houses
and shops; the railway company pays
at cost IOr The fuel, water and supplies,
tools and materials only, and provides
all else that may be necessary for liie
successful operation Of the railway.
The passage of cars and trains, and
the use of grounds, depots and append.
rules and regulations 10 be established
in the first instance by Two SuperiR-
tendents, one appointed by each Of the
parties to the agreement, but subject to
the revision of the parties themselvess
and the tariff OF charges is tu be tixel,
and from time to time changed by the
common consent and concurrent action
OF both of said parties.
The books anu accounts showing the
state OF the business as conducted By
the company are to be always open to
the inspection of the Trustees and their
agents. The net profits are to be d.
yided between the parties in certain
fixed proportions, the railway cOm-
pany trst receiving its share and ias
residue Of the net profits is TO be paid
to the city. We are unable to discover
any legal distinction between this ana
any olhel enterprise ~ WHICH ,psrtls:
contribute MONEY, property G. !aahsTI s
common adventure for the purpose OF
realizing profits, and with the asret-
ment TO divide such profits.
That such an agreement is fOrbidd, a
to the city by the Constitution can not
be doubled.
Therefore, in our opinion, this prp-
posed agreement is in couflict with law,
invalid and void. II is true that in tue
agreement the snare OF the net pr. b 3
accruing to the Trustees is called
rent" but this does not make it suca,
unless it is III substance and legal eject
rent or compensation payable BY Une ior
the use Of the realty OF another.
We are very truly yours,
AoADLY, JOHNSON s. EoLsroN.