
    The State of Ohio ex rel. Daniel Beckel v. The Trustees of Union Township. Union County.
    The Columbus, Piqua and Indiana Eailroad Company was incorporated by an act passed February 23, 1849 (47 0. L. 155-6), which provided, among other things, that tbe county commissioners of any county through which the railroad might be located, should be authorized, after obtaining a vote of the qualified voters of their county in favor of subscription, to subscribe any sum, not exceeding fifty thousand dollars, to the capital stock of said company, and to borrow money to pay the same, etc.; and if the commissioners of any county through which the road should pass should not be authorized, by the vote of the county, to subscribe stock to said road, then the trustees of any township through which the road might be located, were authorized to subscribe to such stock any sum not exceeding fifty thousand dollars, and provide for its payment in the same manner that county commissioners had been authorized, etc.
    This act of incorporation was amended by the act of March 12, 1851, which provides : That the commissioners of any county through or into which the road hás been or may be located which has not heretofore subscribed, or the trustees of any township, or the city or town council of any city or town in any such county, shall be and they are hereby authorized to subscribe to the capital stock of the company any sum not exceeding fifty thousand dollars, under the provisions of the act of incorporation of the company, passed February 23, 1849, and to provide for the payment of the stock in the same manner that county commissioners are authorized to do by said act.
    On the 15th of April, 1851, Union county subscribed, through its commissioners, §12,500 to the capital stock of the company, such subscription having been previously authorized by a vote of the electors of the county. •
    Subsequently, the trustees of Union township, in the same county, ordered an election to be held in their township on the question of a township subscription to the railroad company’s stock, and pursuant to the vote cast at that election, the trustees, on the 9th of July, 1851, made a subscription on behalf of the township to the stock of the company, and in payment therefor executed and issued, in the name of the township, undertakings, or certificates of indebtedness to the amount of the subscription.
    On proceedings in mandamus, on the relation of B., a bona fide assignee and holder of a portion of such certificates, to compel the trustees of the township to levy a tax for the payment of the principal and interest due on the certificates — Held: That under a proper construction of said acts, the trustees of the township were not authorized to subscribe to the stock of the companyj after a subscription had been duly authorized and made on behalf of the county $ and that the acts of the trustees in that behalf, being without authority of law, imposed no obligation or liability upon the township.
    
      Hopple v. Brown Township (13 Ohio St. Kep. 311), approved and followed.
    Mandamus to compel township trustees to levy a tax to pay interest on township undertakings.
    The Columbus, Piqua and Indiana Railroad Company was incorporated by the act of February 28, 1849 (47 O. L. 155-6). That act provides as follows :
    “Sec. .4. That the county commissioners of any county through which'said railroad maybe located, shall be, and they are hereby authorized to subscribe to the capital stock of said company any sum not exceeding fifty thousand dollars; and, to pay the same, they shall have power to borrow any sum of money not exceeding the amount so subscribed, at a rate of interest not exceeding seven per cent, per annum, payable semi-annually, in advance, and for the final payment of the principal and interest of said sum, so subscribed or borrowed, and to levy and collect annually such taxes as, together with the tolls arising from said stock, will pay, at such time or times as may be agreed on, said money, so subscribed or borrowed, with interest thereon, and the incidental charges.
    “ Sec. 5. That if the commissioners of any county through which said road shall pass, shall not be authorized by the-vote of said county to subscribe stock to said road, the trustees of any township through which said road may be located, shall be, and they are hereby authorized to subscribe any sum of money, not exceeding fifty thousand dollars, to the capital stock of said road, and provide for the payment of said stock in the same manner that the county commissioners aforesaid are authorized.
    
      4i Sec. 6. That no subscription shall be made by the county commissioners of any county, or the trustees of any township aforesaid, until a vote of the qualified voters of such county or township has been declared in favor of such subscription, in the manner pointed out in an act regulating the mode of proceeding when county commissioners may be authorized by law to subscribe to the capital stock of railroads, turnpike roads or other incorporated companies in this state, passed February 28,1846.”
    This act of February 28,1846, provides :
    “ Seo. 1. That whenever the commissioners of any county in this state shall hereafter be authorized to subscribe to the capital stock of any railroad, turnpike road, or other incorporated company in this state, it shall be the duty of said county commissioners to give at least twenty days’ notice, in one or more newspapers printed, and in general circulation in the county authorized to make such subscription, to the qualified voters of said county, to vote at the next annual election to be held in the several townships (and wards, if any there be), in said county, for or against the subscription, as aforesaid, and if a majority of the electors aforesaid, voting at said election, for or against a subscription, as aforesaid, shall be in favor of the same, such authorized subscription may be made, but not otherwise.” (1 S. & C., note, 275).
    This act of February 23, 1849, wa3 amended by act of March 12, 1851. This latter act provides :
    “ Sec. 5. That the county commissioners of any county through or into which said road has been or may be located, which has not heretofore subscribed, or the trustees of any township, or the city or town council of any city or town in any such county, shall be, and they are hereby authorized to subscribe to the capital stock of said company, any sum not exceeding fifty thousand dollars, under the provisions of the ad of incorporation of said company, passed February 23,1849, and to provide for the payment of said stock, in the same manner that county commissioners are authorized to do by said act.”
    
      The alternative writ of mandamus, issued out of this court and directed to the defendant, states:
    “ Whereas, it has been suggested to us, that on the 8th day of July, A. D., 1851, the Trustees of Union Township, Union county, Ohio, made their ten certain undertakings in writing of that date (under and by authority of an act of the general assembly of the State of Ohio, passed February 23,1849, incorporating the Columbus, Piqua and Indiana Railroad Company, and the act of March 12, 1851, amendatory thereto, and an order of the Board of Trustees of Union Township, aforesaid, made in pursuance of said act and amendment), and delivered the same to the Columbus, Piqua and Indiana Railroad Company, an incorporated company of, and within the State of Ohio, and whose road was located through said township, and thereby promised, then and there, by each of said undertakings, to pay to said Columbus, Piqua and Indiana Railroad Company, or its assignees, the sum of one hundred dollars on the 8th day of July, A. D., 1857, with seven per cent, interest from date; the interest payable semi-annually, on the 8th day of January, and the 8th day of July, in each year thereafter, and for which interest the proper coupons are attached to said undertakings.
    “That on or about the first day of October, A. d., 1851, the said Columbus, Piqua and Indiana Railroad Company, by M. Gr. Mitchell, its president, sold and assigned said undertakings to Daniel Beckel, for a valuable consideration, and that the said Daniel Beckel is now the holder thereof in good faith for value. That the period at which said undertakings were to have been paid has elapsed; and that the principal, together with the interest thereon, from the 8th day of July, A. d., 1851, is due and unpaid, and that said Union Township, Union county, Ohio, wholly neglects and refuses to levy a tax in accordance with the requirements of the statutes aforesaid, for the payment of the principal and interest aforesaid.
    “ That no part of the principal and interest was paid by the said defendant to the said Columbus, Piqua and Indiana Railroad Company before said assignment to said Beckel, or to said Beckel since said assignment, and that he has applied to the Trustees of said Union Township and requested them to levy a tax for the payment of said principal and interest, but that they have hitherto wholly neglected and refused so to do.
    “Now, therefore, we being willing that full and speedy justice should be done in the premises, do command you, the said Township Trustees of Union Township, Union county, Ohio, that immediately upon the receipt of this writ you either proceed to levy a tax under the provisions of the statutes aforesaid, on the taxable property of said township, for the payment of the principal and interest due and to become due on said undertakings, or that you appear before the judges of the supreme court of the State of Ohio, at their courtroom in the city of Columbus, Franklin county, Ohio, on or before the third Saturday after the second Monday after the date hereof, at ten o’clock, A. M., to show cause why you hav-e not done so, and have you then and there this writ with your return thereon of having done as you are hereby commanded.”
    The undertakings are alike in form. The following is a copy of one of them, and of one of the interest coupons attached thereto:
    “ Qirtifiecde, No.-
    “ 100 Dollars. union county ohio.
    “ Be it known, that Union Township, Union county, Ohio, owes to the Columbus, Piqua and Indiana Railroad Company, or assigns, one hundred dollars with interest at the rate of seven per cent, per annum from this date, the interest payable at the office of the treasurer of Union county, Ohio, on the 8th day of January and the 8th day of July, semi-annually, on presentation of the proper coupons hereto annexed, and the principal also payable at the office of the treasurer of Union county, Ohio, on the 8th day of July, A. D., 1857, in pursuance of an act passed February 23d, 1849, and acts amendatory thereto, and an order of the board of trustees of Union township, made in accordance with said acts and amendments.
    “ In witness whereof, we, the Trustees of Union Township, Union county, Ohio, have hereunto set our hands this 8tb day of July, 1851.
    
      u Attest: David Burnham, Township Clerk.
    William C. Piper, Robert D. Reed, James 0. Miller, Trustees of Union Township, Union county, Ohio.”
    
      ‘ Union County, Ohio, Union Township.
    
    
      “ Warrant, No. 1, for three dollars and fifty cents, being
    for six months’ interest on Bond, No.-, payable on the 8th
    day of January, 1852, at the county treasury, Union county, Ohio.
    $3.50. David Burnham,
    Township Clerk.”
    The trustees of the township returned the writ, and, having declined to levy the tax which by the writ they are alternatively commanded to levy, state as reasons why they have so declined and why they ought not to be compelled to levy the tax, the following in substance among others :
    4. That the undertakings mentioned in the writ were, on July, 9, 1851, made and delivered by the then trustees of said township to said railroad company, in part payment of an alleged subscription to the capital stock of said company by said trustees, for and on behalf of said township, and upon no other consideration whatever. That before any such township subscription, and before the making or execution of said supposed undertakings, the commissioners of Union county had been authorized by a vote of her electors, pursuant to law, to subscribe, and had subscribed, $12,500 to said capital stock.
    5. That the township vote was not taken at any annual election.
    
      
      Murray and Brown, for the relator.
    
      Thurman, Hamilton S¡- Lincoln, for defendants.
   Scott, J.

Among the numerous grounds of defense stated in the answer to the alternative writ in this case, it is alleged in effect that the,, undertakings, held by the relator, were made and executed by the township trustees, solely by way of payment of an alleged subscription to the capital stock of the Columbus, Piqua and Indiana Railroad Company; and that, before the making of such alleged subscription by said trustees on behalf of said township, the county of Union, within which the township is situated, had been duly authorized, by a vote of the qualified electors of the county, to subscribe, and, on the 15th of April, 1851, had, by its commissioners, subscribed, 12,500 dollars to the capital stock of said railroad company. The facts thus alleged are not controverted.

The question then arises, whether, after a subscription to the stock of the railroad company had been made, pursuant to legal authority, by the commissioners of Unión county, the trustees of a township within that county, had authority, under the statute, to bind their township, by subscribing in its name to the stock of said company, and by executing and issuing, in payment of such subscription, written undertakings in the name of such township. It is clear that the making of such a subscription does not fall within the scope of the general powers and duties devolved upon township trustees as such, and that the power to bind their township by such an act must therefore be found, if it exists, in special legislative grant. For such express grant of power we are referred, in this case, to the act of February 23, 1849, incorporating the said railroad company; .and the act of March 12, 1851, amendatory thereof. The first of those acts only authorizes subscriptions to be made by townships through which the road may be located, if the commissioners of said county “ shall not be authorized by the vote of said county to subscribe stock to said road” It was manifestly the intention that the people of a township should not be subjected to a double liability, under both county and township subscriptions, and hence the authority to subscribe is conferred upon townships, only in cases where the exercise of a like authority is refused or .declined by the county in which they may be situated.

Now, as, in this case, Union county had been “ authorized by the vote of the county to subscribe,” and had, in fact, subscribed to the stock of the company, before any action had been taken in the premises by the township or its trustees, we think their subsequent action upon the subject was wholly unauthorized by this act. But it is claimed that the amendatory act of 1851 clearly authorized subscriptions both by a county and the townships therein. But we do not so understand the provisions of this latter act. The policy of withholding the power of subscription from townships, until a county subscription should have been declined or refused, is clearly manifested not only in the original charter of this company, but in other similar acts of incorporation passed about the same time. This amendatory act is not, therefore, to be so construed as to imply an intention to abandon that clearly expressed policy, unless its terms manifest such an intention with at least reasonable certainty. But this is so far from being the case, that we think the fifth section of the amendatory act, fairly construed, shows an adherence to the policy of preventing double subscriptions. This act was passed more than two years after the date of the original charter, and it was, at least, doubtful, whether subscriptions could still be made by counties, under the authority conferred by the original act. The act of February 28, 1846, had provided that when counties should thereafter be authorized to subscribe to the stock of railroad companies, the commissioners ef such counties' should notify the electors thereof to vote on the question of subscription at the next annual election. To obviate all difficulties or doubts which might arise from this apparent limitation of the time within which the vote of the county was to be taken, the fifth section of the amendatory act expressly renews the authority to subscribe, to the counties -which had been previously thus authorized, and which had not already exercised the power conferred upon them ; and, in, “ such” counties, it also renewedly authorizes township subscriptions ; and,' proceeding further, it confers a similar power for the first time upon cities and towns in 11 such” counties; and it also removes what might otherwise have been a ground of doubt, by expressly authorizing subscriptions by counties into which, as well as by those through which the road might be located. Now, as this section authorizes subscriptions to be made only by counties which had not theretofore subscribed, and by townships, cities, towns in such counties, upon what conceivable ground could the policy rest, of permitting double subscriptions in counties which had not theretofore subscribed, and refusing such a privilege in counties which had already subscribed ? That such a discrimination was intended is highly improbable. But the further provisions of this section go far to exclude all doubt upon this question. Eor, the authority conferred by this section, whether renewedly upon the grantees of the original power, or, for the first time, upon new grantees, is expressly conferred and required to be exercised “ under the provisions of the act of incorporation of said company, passed February 23, 1849.” By this clause, the limitations, conditions, and provisions of the original act, are annexed to the grants of power contained in this section, except in so far as they are modified by the amendatory act itself. Among, the provisions, that which limits the authority to make township subscriptions to the case in which a subscription on behalf of the county has not been authorized, is too important to be overlooked. As Union county had, in this case,, been authorized to subscribe, and had duly made such subscription to the stock of this company before the trustees of the township attempted to exercise th$ power supposed to have been conferred upon them by the statute, we^ are clearly of opinion that, under neither of the acts referred, to, had they any power to bind their township by their action in the premises.

The grant of power to the trustees was contingent only, and until the proper contingency arose, they were wholly destitute of authority in the premises. That the township can not, in such case, be bound by the unauthorized acts of its trustees, was expressly held in the case of Hopple v. Brown Township, 18 Ohio St. Rep. 311. And we think the doctrine is but a logical deduction from undoubted general principles.

Writ of peremptory mandamus refused.

Brinkerhoef, O.J., and Day, White, and Welch, JJ., concurred.  