
    J. Bryant Walker, Solicitor of the City of Cincinnati v. The City of Cincinnati, and others.
    1. Courts cannot nullify an act of legislation on the vague ground that they think it opposed to a general latent spirit, supposed to pervade or underlie the constitution, hut which neither its terms nor its implications clearly disclose.
    3. It is well settled in this State, by repeated adjudications, that, independent of constitutional prohibitions, it is within the legitimate scope of legislative power to authorize a city to aid in the construction of railroads or other public improvements in which such city has a special interest, and to impose taxes upon its citizens for that purpose.
    3. It follows that it is equally competent for the legislature to authorize the entire construction of such improvements by a city having a special interest therein, and to empower the local authorities to provide means therefor by the taxation of its citizens.
    4. Where the authority given is to construct a line of railroad having one of its termini in such city, it does not affect the question of power, that the road when constructed will lie mainly outside of the State of Ohio'. It is the corporate interest of the municipality which determines her right of taxation, and not the location of the road, which may well be constructed with the consent of the State into or through which it may pass.
    5. The authority and duty to prevent an abuse of the powers of taxation and assessment by municipal corporations, is entrusted by the constitution to the general assembly, and not to the courts of the State. And the power of the legislature to authorize local taxation cannot be judicially denied on the ground that the purpose for which it is exercised is not local, unless the absence of all special local interest is clearly apparent.
    6. The act of the general assembly of this State, passed March 4, 1869, entitled: “ An act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants,” is not in conflict with the provisions of the constitution in any of the following respects:
    The conferring of authority on the judges of the superior court of Cincinnati to appoint trustees to cany out the purposes of the act, is not the exercise of an appointing power by the general assembly, which article 2, section 27, of the constitution forbids. It is not the creation of a new office but the annexing of a new duty to an existing office.
    For the same reason it is not in conflict with article 4, section 14, which prohibits judges of the supreme court and the court of common pleas from holding any other office of profit or trust under the authority of this State or the United States. The duty imposed upon the court by this actis of a judicial character.
    Nor does the act eonflictwith article 2, section 20, of the constitution, which requires the general assembly, in eases not provided for in the constitution, to fix the term of office and the compensation of all officers. The trustees for whose appointment it provides, are not public officers within the meaning of this provision.
    And finally, the act violates neither the express nor clearly implied prohibitions of article 8, section 6, which declares: “The general assembly shall never authorize any county, city, town or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money, or loan its credit to, or in aid of any such company, corporation or association.”
    Error to the superior court of Cincinnati.
    On the 12th April, 1870, J. Bryant Walker filed in the office of the clerk of the superior court of Cincinnati, his petition, stating:
    “That he is the solicitor of the city of Cincinnati, and a tax payer in the said city, and that by an act of the general assembly of the State of Ohio, passed on the 4th day of May, eighteen hundred and sixty nine, entitled 1 An act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants,’ it was enacted in the first, second, third and fourth sections thereof, as follows: # * * * * * ’ * *
    1 Section 1. Be it enacted by the general assembly of the State of Ohio, that whenever in any city of the first class having a population exceeding one hundred and fifty thousand inhabitants, the city council thereof shall, by a resolution passed .by a majority of the members elected thereto, declare it to be essential to the interests of such city that a line of railway, to be named in said resolution, should be provided between termini designated therein, one of which shall be such city; it shall be lawful for a board of trustees, appointed as herein provided, and they are hereby authorized to borrow, as a fund for that purpose, not to exceed the sum of ten millions of dollars, and to issue bonds therefor in the name of said city, under the corporate seal thereof, bearing interest, at a rate not to exceed seven and three tenths per centum per annum, payable at such times and places and in such sums as shall be deemed best by said board. Said bonds shall be signed by the president of said board, and attested by the city auditor, who shall keep a register of the same, and shall be secured by mortgage on the line of railway and its net income, and by the pledge of the faith of the city, and a tax, which it shall be the duty of the council thereof annually to levy, sufficient with said net income to pay the interest and provide a sinking fund for the final redemption of said bonds; provided that no money shall be borrowed on bonds issued until after the question of providing the line of railway specified in the resolution shall be submitted to a vote of the qualified electors of said city, at a specified election, to be ordered by the city council thereof, of which not less than twenty days’ notice shall be given in the daily papers of the city; and further provided, that a majority of said electors voting at such election shall decide in favor of said line of railway. The returns of said election shall be made to the city clerk, and be by him laid before the city council, who shall declare the result by a resolution. The bonds issued under the authority of this section shall not be disposed of for less than their par value.
    ‘ Section 2. If a majority of the votes cast at said election shall be in favor of providing the line of railway, as specified in the first section, it shall be the duty of the solicitor forthwith to file a petition in the superior court of said city, or, if there be no superior court, then in the court of common pleas, of the county in which said city is situate, praying that the judges thereof will appoint five trustees, to be called the trustees of-railway (the blank to be filled with the name given to the railway in the resolution), and it shall be the duty of said judges to make the appointment, and to enter the same on the minutes of the court. They shall enter into bond to the city in such sum as the court may direct, with one or more sufficient sureties, to be approved by the court, conditioned for the faithful discharge of their duties. The bond so taken shall be deposited with the treasurer of the corporation for safe keeping.
    * Section 3. The said trustees and their successors shall be the trustees of the said fund, and shall have the control and disbursement of the same. They shall expend said fund in procuring the right to construct, and in constructing a single or double track railway, with all the usual appendages, including a line of telegraph between the termini specified in the said resolution, and for the purposes aforesaid, shall have power and capacity to make contracts, appoint, employ and pay officers and agents and to acquire, hold and possess all the necessary real and personal property and franchises either in this State or in any other State into which said line of railway may extend. They shall also have power to receive donations of land, money, bonds and other personal property, and to dispose of same in aid of said fund.
    ‘ Section 4. The said trustees shall form a board and shall choose one of their number president, who shall also be the acting trustee, with such power as the board may by resolution from time to time confer upon him. A majority of said trustees shall constitute a quorum and shall hold regular meetings for the transaction of business at their office in the city under whose action they arc appointed, but they may adjourn from time to time to meet at any time and place they may think proper. They shall keep a record of their proceedings, and they shall cause to be kept a full and accurate account of their receipts and disbursements, and make a report of the same to the city auditor annually, and whenever required by a resolution of the city council. No money shall be drawn from said fund but upon the order of said board, except their own compensation, which shall be paid out of the same upon the allowance of the court appointing them, and shall be proportioned according to their respective services.’
    “That afterwards on the 4th day of June, in the yeai aforesaid, the city council of the cityof Cincinnati, reciting in a preamble the powers conferred in the first section of the said act, and that the said city of Cincinnati, in the State of Ohio, was a city of the first class, having a population exceeding one huudr.ed and fifty thousand inhabitants, resolved, in pursuance and by virtue of the powers in said act given (a majority of all the members elected thereto concurring, as follows:
    * First. That the said city council hereby declares it to be essential to the interests of the said city of Cincinnati, that .a line of railway, to be named “ The Cincinnati Southern Railway,” shall be provided between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee.
    ‘ Secondly. That a special election be held on Saturday, •the 26th day of June, 1869, at which election the question of providing the said line of railway shall be submitted to a vote of the qualified electors of the said city ; and the city •clerk is hereby directed to cause to be printed a sufficient number of two sets of ballots (not less than one hundred •thousand of each set) for use at each voting place, one ■of which sets shall be printed: ‘Special election to decide for or against providing a line of railway between Cincinnati, Ohio, and the city of Chattanooga, State of Tennessee. For providing said line of railway.’ And upon the other •set shall be printed : 1 Special election to decide for or against providing a line of railway between Cincinnati, Ohio, and the city of Chattanooga, State of Tennessee. Against providing said line of railway.’
    * Thirdly. That the mayor of the said city of Cincinnati be and he is hereby directed to issue his proclamation to the qualified voters of said city, giving notice of said special election, and of the time and places of holding the same, and that said proclamation be published in the daily newspapers of said city, at least twenty days before said election. Said election shall be held at the usual places of voting at municipal elections in each ward, and shall be conducted in the manner prescribed by law for holding municipal elections. The returns of said election shall be made to the city clerk, and shall by him be laid before the city council, who shall declare the result by a resolution.
    “ That in pursuance and by virtue of said resolutions, the Hon. John E. Torrence, mayor of the said city of Cincinnati, did, by his proclamation, published in all the daily newspapers of said city for more than twenty days prior to the day of said special election, give notice to the qualified electors of said city that a special election to decide for or against providing the said line of railway, would be held on Saturday, the 26th day of June, a. d. 1869, and that polls would be open at the usual places of voting at municipal elections in eachyward, between the hours of six o’clock in the morning and six o’clock in the evening of said day.
    “That afterwards, to-wit, on the 28th day of June, in the year 1869, the said mayor sent his message to the city council of the said city of Cincinnati, certifying under his hand and the corporate seal of the said city, that he had given notice of the time and place of holding the said special election, as above stated, and the city clerk of said city laid before the said city council, at a meeting thereof, duly convened on said last mentioned day, the returns of said election ; whereby it appeared that at said special election there were cast fifteen thousand four hundred and thirty-five ballots of the qualified electors of said city, fot 
      providing said line of railway, and fifteen hundred ballots against providing said line of railway.
    “ Whereupon the said city council declared by a resolution that the result of said special election was that a majority amounting to thirteen thousand nine hundred and thirty-five of the votes cast at said special election was in favor of providing said line of railway between the said city of Cincinnati, Ohio, and the said city of Chattanooga, in the State of Tennessee.
    “ That thereafter the city of Cincinnati filed in the superior court of Cincinnati, in cause No. 24,749, in the said court, on the 80th day of June, 1869, a petition reciting the facts set forth above, and praying for the appointment of five trustees, to be called the trustees of the Cincinnati Southern Railway, with all the powers given in the above recited act, and that their appointment be entered on the minutes of the said court, as the act provides.
    “ That on the said 30th day of June, 1869, the following order was made and entered upon the minutes of the said court:
    
      lIn the matter of the application of the city of Cincinnati for the appointment of the trustees of the Cincinnati Southern Railway.
    
    The petition of the city of Cincinnati, by J. Bryant Walker, city solicitor for said city, having been filed in this court, praying that the judges thereof would appoint five trustees, to be called the trustees of the Cincinnati Southern Railway, with the powers given in the act of the general assembly of the State of Ohio, passed on the 4th day of May, in the year 1869, entitled An Act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants. And the court and the judges thereof being satisfied, and finding that all the statements made in the said petition are true in substance and in fact, hereby appoint Richard M. Bishop, Edward A. Fer guson, Miles Greenwood, Philip Heidelbach and William Hooper, to be trustees of the Cincinnati Southern Railway with the powers given in the act aforesaid, and order that the said trustees severally enter into bond to the said city of Cincinnati, in the sum of one hundred thousand dollars, with four sureties each, to be approved by the court, conditioned for the faithful discharge of their duties. And it is also ordered that upon giving bond as aforesaid, the clerk of this court deliver a certified copy of this order to each of said trustees as the evidence of his appointment.
    “ And afterwards, to-wit, on the 3d day of July, in the term and year last aforesaid, the following entry was made in said cause on the journal of said court, to-wit:
    1 This day came the trustees of the Cincinnati Southern Railway, who were heretofore appointed, and presented their said bonds with the following named persons.:
    11 — As sureties for RichardM. Bishop, as trustee aforesaid, Charles H. Gould, William S. Dickinson, James A. Frazier and Wm. Glenn.
    1 2 — As sureties for Edward A. Ferguson, as trustee aforesaid, Charles W. West, Anthony D. Bullock, Henry Lewis, and John Schiff.
    ‘ 3 — As sureties for Miles Greenwood as trustee aforesaid, Robert Mitchell, Lewis Worthington, William Woods, Joseph C. Butler and Peter Gibson.
    14 — As sureties for Philip Heidelbach as trustee aforesaid, Jacob Seasongood, Jacob Elsas, Abram Akerland and Samuel Thorner.
    ‘ 5 — As sureties for William Hooper, as trustee as aforesaid, Learner B. Harrison, Leverett G. E. Stone, David H. Taylor and Thomas R. Biggs.
    ‘ And the court being satisfied that such sureties are sufficient, approve the said bonds with the sureties aforesaid, and order that the city solicitor receive and deposit said bonds with the treasurer of the said city of Cincinnati, as is provided by the statute.
    ‘ Thereupon the said trustees appeared in open court and were duly sworn to discharge their duties as trustees as aforesaid.
    “ And afterwards, to-wit, on the 8th day of July, a. d. 1869, there was filed in the office of the clerk of said court a certain receipt clothed in the words and figures following, to-wit:
    “ Citt ok Cincinnati,
    “ Treasurer’s Office, July 6, 1869.
    ‘ Received of J. Bryant Walker, city solicitor, the bonds of the following named trustees of the Southern Railway : William Hooper, Miles Greenwood, R. M. Bishop, P. Heidelbach, E. A. Ferguson.
    1 Filed in the city treasurer’s office, according to law.
    Robert Moore, Oily Treasurer.
    
    “That on the 6th day of July, 1869, they met and chose Miles Greenwood president, and appointed Henry H. Tatem secretary, and ordered that their office be kept at the rooms of the board of trade of Cincinnati, in Pike’s opera house building, and that their regular meeting be held on the first Tuesday of each month, at 3 p. m.
    “ That since the last mentioned date they have procured the consent of the State of Tennessee to the construction and maintenance of the said line of railway, and to the exercise of the powers vested in them as aforesaid in said State, and have made application for a like consent from the commonwealth of Kentucky, in which latter State, however, no grant has as yet been made.
    “ That for the purpose of further enabling the trustees appointed under said act'of May 4th, 1869, to carry into effect the purposes of such act, the general assembly of the State of Ohio, on the 25th day of March, 1870, passed the following act:
    ‘ An Act supplementary to the act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants, passed May 4, A. d. 1869.
    ‘ Sec. 1. Be it enacteclby the general assembly of the State of Ohio, That the city council of any city of the first class described in the act to which this ,is supplementary, may, after trustees have been appointed, as provided in said original act, advance to said trustees out of any fund oi said city, such sum as may be necessary, not exceeding fifty thousand dollars, for carrying the object for which they are appointed into effect, and said sum shall be repaid out of the trust fund provided for in said original act, when ■raised.
    ‘ Sec. 2. This act shall take effect on its passage.
    “ That thereupon, upon the 2d day of April, 1870, the city council of the city of Cincinnati passed an ordinance advancing the sum of $50,000 out of the interest fund, to be paid to the said trustees as a loan, to be repaid out of the proceeds of the first bonds sold.
    “ That Charles H. Titus is the auditor of the city of Cincinnati, and that a portion of the funds so appropriated are still unpaid, and that he will pay the same unless restrained by the court.
    “ Plaintiff submits to the court that the statutes of the State of Ohio above recited are unconstitutional and void, and that the advance of such money is a misapplication of the funds of the corporation and in contravention of the laws governing the same, and is not proper corporate use.”
    Wherefore plaintiff prays the court to enjoin the payment of said money so appropriated, and for such other relief as may be equitable and just.
    The defendants demurred to this petition, assigning for cause that the facts stated in the petition do not constitute a cause of action against them or either of them.
    The superior court in general term sustained this demurrer and dismissed the petition.
    To reverse this judgment a petition in error was filed in this court.
    
      M W. Kittredge for plaintiff in error :
    I understand the question involved in the case is the constitutionality of the act, passed May 4, 1869, and the act supplementary thereto, passed March 25, 1870, authorizing the construction of what is called the Cincinnati Southern Railway.
    I submit to the court these acts are invalid by reason of their conflict with the following provisions of the constitution of the State of Ohio :
    “ Art. II, 27. The election and appointment of all officers, and the filling of all vacancies not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law ; but no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators ; and in these cases the vote shall be taken viva voce.”
    “Art. IY, Sec. 14. The judges of the supreme court and the court of common |>leas shall, at stated times, receive for their services such compensation as may be provided by law, which shall not be diminished or increased during their term of office ; but they shall receive no fees or perquisites, nor hold any other office of profit or trust under the authority of this State, or the United States. All votes for either of them, for any elective office, except a judicial office, under the authority of this State, given by the general assembly or the people, shall be void.
    “ Art. II, Sec. 20. The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers ; b.ut no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.
    “ Art. YIII, Sec. 6. The general assembly shall never authorize any county, city, town or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation or association whatever; or to raise money for, or loan its credit to, or in aid of, any such company, corporation or association.”
    1. The power conferred upon the judges of the superior court of Cincinnati, and of the court of common pleas, for the appointment of the defendants, William Hooper and his associates, trustees of the Cincinnati Southern Railway, is in violation of section 27, article II, and of section 14, article IY, of the constitution, and their appointment is therefore void. The State ex rel. Attorney General v. Kennon et al, 7 Ohio St. 546.
    The board of trustees provided for by the act are public officers ; aud their appointment by the judges of the superior court is not the exercise of any judicial function by them, or of any power that can be conferred upon them as judges. Their designation as judges of the superior court is simply another mode of identifying the individuals upon whom the appointing power is conferred instead of pointing them out by their names. See Burrill’s Law Die. ‘1Judicial,” 20 Johns. 492 ; Story’s Com. Const. sec. 542 ; Hayburn’s Case, 2 Dallas, 410, note, 410 to 414 ; Chard v. Harrison, 7 Cal. 113 ; Hardenburgh v. Kidd et al. 10 Cal. 402 : The People ex rel. &c. v. Sanderson, 30 Cal. 160.
    2. The tenure of office of, and the compensation provided for, said trustees is in violation of section 20, article II, of the constitution, and the creation of such office is therefore void. Speed and Worthington v. Crawford, 3 Met. (Ky.) 207.
    3. The authority to the city to raise money for, or to loan its credit in aid of, the purposes alleged in the petition, is given by the legislature, in violation of section 6, article VIII, of the constitution, and is therefore void.
    The section prohibits the aiding by municipal corporations, of corporations engaged in constructing such works. And the argument is, that while the city is prohibited from aiding the construction of the works, it may nevertheless construct them wholly and entirely with its own resources. But can it be doubted that the object sought was the prohibition of the thing itself, and not the mode of doing it ? It is a mere evasion of the prohibition of section 6 article 8, to hold otherwise. See Pennsylvania Central Railroad Co. v. The City of Philadelphia, 47 Penn. St. 189.
    But I rest my argument upon this part of the case chiefly upon the proposition, that the act in question provides for the creation of a separate corporation, under the name and style of “The Trastees of the-Railway; ” and that it is not a department of the city government; and that the provisions of the original and supplemental act, authorizing the city to raise money for, anti to loan its credit to, or in aid of the corporation so created, are in direct conflict with the express letter of this provision of the constitution.
    See Jansen v. Ostrander, 1 Cowen, 670 ; The Atkinson Case, 15 Ohio St. 35 ; Coe v. The C. P. & I. R. R. Co., 10 Ohio St. 385 ; Beaty v. Knowles et al. 4 Peters, 152.
    4. The grant of authority to the the city of Cincinnati to build a railroad from Cincinnati through Kentucky and Tennessee, to Chattanooga, is in excess of the taxing power of the State, and beyond the power of the legislature to confer upon a municipal corporation. See Griffith v. Com’rs of Crawford Co. 20 Ohio, 619 ; Whiting v. Sheboygan, 9 Am. Law Reg. 1870, p. 156 ; Curtis v. Whipple, 24 Wisconsin, 350 ; Howell R. R. Co. v. Salem Tp. 9 Am. Law Reg. 1870, p. 487 ; Hanson v. Vernon, 27 Iowa, 28 ; Wapello County Case, 13 Iowa, 400; Sweet v. Hulbert, 51 Barb. 316 ; Note to opinion of Judge Cooley, 9 Am. Law Reg. Aug. 1870, p. 501; C. W. & Z. R. R. Co. v. The Com’rs of Clinton Co. 1 Ohio St. 77 ; Const. of Ohio, art. 12, sec. 6; art. 13, sec. 6 ; Zanesville v. Richards, 5 Ohio St. 589; City of Chicago v. Baer, et al. 41 Ill. 306; 20 Ohio, 11, Appendix ; Reeves v. Wood County, 8 Ohio St.333.
    
      F. W. Moore, city solicitor of Cincinnati,
    called attention to certain parts of the constitution involved in the discussion.
    
      Charles Reemelin, also submitted an argument insisting,
    1. That the legislative act in question is absolutely void ; that the general assembly of Ohio never had any extra territorial jurisdiction ; that the people or State never conferred it, and could not, without the previous consent of congress, and a pre-expressed willingness of Kentucky, and then only through some public organ fully representing the State for the purpose. That the act in question is a usurpation of legislative authority ; that it is not and cannot be a legislative power in the law-making power of any State ; that it is a breach of our federal compact, and an insult to Kentucky. That it has no validity except what the breath of any other public assembly might give ; and that the taxing powers, as well as the public debt it authorizes, being for an extra territorial object, are heinously illegal.
    2. If an attempt should be made to argue in favor of such implied extra territorial legislative power, our State constitution interposes an insuperable ban ier to it. It says, art. II., sec. 26: “ Nor shall any act, except such as relates to public schools, be passed to take effect upon the approval of any other authority than the general assembly.”
    This forbids the general assembly from ever sending out quasi public authorities to hunt the legal sanction for its acts in other State legislatures, or even in congress. Our general assembly has no legislative authority which it does not possess as an integral and inherent attribute of its own authority! It cannot get the power to legislate by borrowing it from other States; it can derive it only from our State and the people thereof.
    The legislature of Ohio cannot join the State of Kentucky, and thus get power to levy taxes in Ohio for extra territorial public improvements. It can not create such a trust, for neither the State of Ohio nor the city of Cincinnati can be constituted a cestui que trust in that way. Nor can any public money or public credit be made a trust fund to be administered by courts ; for Ohio and her municipalities are living organisms ; they are neither bankrupt nor defunct, nor likely to be either; they therefore need neither administrators, executors, receivers, nor trustees, in that sense.
    
      Scribner <& Hurd being interested, as counsel,
    in the question involved in this cause, submitted, by leave of the court, an argument maintaining the unconstitutionality of the municipal railway act. Their propositions are as follows :
    1. The organization of municipal corporations is provided for in art. xiii, sec. 6, of the constitution of Ohio.
    2. Municipal corporations are created merely as agencies of the State in local government. The State can create them for no other purpose, and it can confer powers of gov-eminent to no other end. Cooley Const. Lim. p. 211; Shearm. & Redf. Negl. pp. 143-4, ^ 121.
    3. Taxes can only be levied by the municipal authorities for the purposes of local gevernment. The People ex rel. etc., v. The Township Board of Salem—(Mich.); citing Sharpless v. Mayor, etc., 21 Penn. St. 168; Gevin v. Weisenberg School District, 57 Penn. St. 438 ; Broadhead v. Milwaukee, 9 Wis. 652 : Weens v. Milwaukee, 10 Wis., 258 ; Byerson y. Utley, 16 Mich. 260 ; Merrick v. Amherst, 12 Allen, 504 ; Wells v. Weston, 22 Misso. 285 ; Covington v. Southgate, 15 B. Mon. 491 ; Morford v. Unger, 8 Iowa, 22. And the conclusion is, that the levy of a tax for the construction of a railroad is not within the taxing power of the State. See, also, Hammett v. Philadelphia, 8 Amer. Law Reg. (N. S.) 421; Whiling v. Sheyboygan R. R. Co. Amer. Law Reg., March, 1870, p. 172; C. W. & Z. R. R. Co. v. Clinton County, 1 Ohio St. 77, 86 ; Bingham v. Miller, 17 Ohio, 445.
    4. If a tax is imposed upon one of the municipal divisions of the State, the purpose must not only be a public purpose as regards the people of that subdivision, but it must be purely local. The construction and operation of a railroad extending from the municipality to a- distant point, is not such a purpose. The People v. The Township Board of Salem,—Mich.; Whiting v. Sheboygan R. R. Co., Amer. Law Reg., March, 1870, p. 156 ; Sweet v. Hulbert, 51 Barb. 316 ; Hanson v. Vernon, 27 Iowa, 28.
    5. The act in question virtually compels citizens of the municipality to become members of a private corporation for speculative purposes, and to expend their money in the construction and maintenance of a railway, and to assume the liabilities incident to operating the same.
    This is very clearly shown, and the objections to it forcibly stated in the opinion of the court in the case of The State of Iowa v. The County of Wapello, 13 Iowa, 388, 402, 406, 409, 416.
    See also Myers v. The County of Johnson, 14 Iowa, 47 ; Smith v. Henry County, 15 Iowa, 385 ; Ten Eyck v. Mayor 
      
      of Keokuk, Ibid., 486 ; City of St. Louis v. Allen, 13 Misso. 415.
    6. Tlie liability thus imposed upon the citizen is unlimited in its character and extent.
    7. And this liability continues even though the road be leased. 1 Redf. on Railw. 3d ed. 590; 66 Ohio Laws, 33.
    8. The restrictions and prohibitions contained in the constitution of 1851, were carefully considered and adopted with a view to preventing cities and counties from embarking in railroad enterprises. They were intended, not so much to prevent stock subscriptions as to prevent the incurring of indebtedness in works of internal improvement. See dissenting opinion of Ranney J. in Cass v. Dillon, 2 Ohio St. 630, 637, 641; Const. of Ohio, sec. 6, art. viii; sec. 6, art. xii; Cass v. Dillon, 2 Ohio St. 623 ; Sedgwick’s Const. Law, p. 464 ; Cooley’s Const. Lim. pp. 213, 214 ; 2 Redf. on Railw. 3d ed. 397, note, 398-400, note 2.
    9. Upon the theory and doctrines advanced by the defense, the act in question violates section 19, of article I, which provides that private property shall ever be held inviolate, but subservient to the public welfare.
    We have already urged that the work contemplated by the statute is general, and not local, in its character, and therefore within that prohibition of the constitution which forbids the State from contracting any debt for purposes of internal improvement. If, however, it shall be held that the work is local in its character in the sense argued by the defense, then we insist that the statute authorizing it is unconstitutional for the reason that it empowers the municipality to appropriate for its own private purposes any and all the property in Ohio, which it may deem necessary to enable it to construct its road, without regard to the interests of the people outside of the city limits, when as to them no public purpose is promoted ; and particularly does this objection hold good if the city constructing the road does not propose to assume the duties and responsibilities of common carriers.
    
    10. The act also violates section 26 of article II, which provides: “All laws of a general nature shall have a uniform operation throughout the State; nor shall any act, except such as relates to public schools, be passed to take effect upon the approval of any other authority than the general assembly.”
    This law is of a general nature, inasmuch as it authorizes a building of roads through all the counties and municipalities of the State. It is not uniform in its operation, because it limits the right of determining whether the road shall be built, and of operating it when built, to the authorities of a particular locality. They have the authority to declare that the road shall be built — to fix its termini, and submit to a vote of their own people the scheme of its construction. It confers upon the city council of a single city power to legislate in a manner affecting the interests, rights and property of people in a remote part of the State ; a power which should be exercised by the general assembly alone, where the representatives of the people to be affected may be heard.
    
      Stanley Matthews for defendants in error :
    I. The designation of the judges of the superior court of Cincinnati, to appoint tustees of the Southern Railway, is not the exercise, by the general assembly, of an appointing power forbidden by art. II, sec. 27, of the constitution, because:
    1. It is merely the adding of such duties to an office previously created, and exercised by officers previously and properly elected.
    2. The adding of such new duties to an existing office is not the creation of a new office.
    3. The prohibition in the 14th sec. of art. IY, of the constitution applies only to judges of the supreme court and of the court of common pleas. Steamboat Northern Indiana v. Milliken, 7 Ohio St. 383 ; The Stale ex rel. Flinn v. The Auditor of State, 7 Ohio St. 333.
    4. The constitution does not expressly, nor by any necessary implication, forbid the general assembly to confer upon judicial officers, powers not strictly judicial, when the addition of such powers does not create a new office •; and, even if the imposition of such duties is illegal, in the sense that the judicial officer could not be compelled to perform them, it is not so as to render void acts voluntarily done in executing them. Logan Branch Bank ex parte, 1 Ohio St. 432 ; Hayburn’s Case, 2 Dallas’ Rep. 410 ; Prigg v. Pennsylvania, 17 Peters, 539, 622 ; Matter of Beekman Street, 20 Johns. 269 ; Stricker v. Kelly, 7 Hill’s Rep. 18 ; U. S. v. Ferreira, 13 How. 40 and note, p. 521 of case of U. S. v. Todd; also Stearns et al. v. U. S. 2 Paine’s C. C. Rep. 309 ; U. S. v. Dodge, 14 Johns. 95 ; U. S. v. Lathrop, 17 Johns. 4 ; Worthington v. Hewes & McCann, 19 Ohio St. 66.
    5. The trustees of the Southern Railway are not public officers, in such a sense, as that the function of appointing them cannot be considered the exercise of judicial power. Western College v. Cleveland, 12 Ohio St. 377 ; Comr's of Hamilton County v. Mighels, 7 Ohio St. 119; Dayton v. Pease, 4 Ohio St. 100 ; Bailey v. Mayor of New York, 3 Hill, 531, and 2 Denio, 433 : Dartmouth College v. Woodward, 4 Wheat. 668 ; Phillips v. Berry, 1 Ld. Raym. 8 ; S. C. 2 T. R. 352 ; Allen v. McKeen, 1 Swan, 297; People v. Morris, 13 Wend. 338 ; U. S. Bank v. Planter's Bank, 9 Wheat. 907; Clark v. Washington, 12 Wheat. 40; Moondalay v. East India Co. 1 Brown’s Ch. R. 469 ; Cooley Const. Lim. 248 ; Lloyd v. Mayor of New York, 4 N. Y. 369 ; Mersey Docks v. Cameron, and Jones v. Mersey Docks, 11 House of Lords Cases, 443 ; Smith v. Birmingham, 7 El. & Bl. 483 ; Lord Amherst v. Lord Sommers, 2 T. R. 392; The Queen v. Stewart, 8 El. & Bl. 360; Justices of Lancashire v. Stretford, Ellis, Bl. & El. 225 ; Hodgson v. Local Board of Carlisle, 8 El. & Bl. 116 ; The Queen v. Manchester, 3 Ellis, & Bl. 336 ; The Queen v. Shepherd, 1 Q. B. 170 ; Mersey Docks Trustees v. Gibbs, 1 Eng. & Ir. App. 83 ; Ward v. Lee, 7 El. & Bl. 426 ; Coe v. Wise, Law Rep. 1 Q. B. 711; Clothier v. Webster, 12 C. B. (N. S.) 790 ; Southampton Board of Health, 8 El. & Bl. 801 ; Ruck v. Williams, 3 Hurlst. & Norman, 308; Whitehouse v. Fellows, 10 C. B. (N. S.) 765.
    6. The trustees of the Southern Railway are not only not public officers in the sense mentioned, but they are strictly trustees, according to the meaning of that term in a court of chancery, of a charitable trust, jurisdiction to administer which belongs appropriately to that court. The Attorney General v. Heelis, 2 Sim. & St. 67 ; The Attorney General v. Brown, 1 Swanst. 265 ; Nightingale v. Goulbourn, 5 Hare, 484, 488 ; 2 Story’s Eq. § 1160 ; Street Railway v. Cumminsville, 14 Ohio St. 523 ; McIntyre Poor School v. Zanesville Canal Co. 9 Ohio, 203 ; Perrin v. Casey, 24 How. 501 ; Mitford v. Reynolds,, 1 Phillips, 190; Jones v. Williams, Ambler, 651 ; Howse v. Chapman, 4 Ves. 542 ; Townley v. Bedwell, 6 Ves. 194 ; The Attorney General v. Aspinwall, 2 Mylne & Craig, 613, 623 ; Jackson v. Phillips, 14 Allen, 556 ; Drury v. Natick, 10 Allen, 169 ; Cresson’s Appeal, 30 Penn. St. 437 ; Hamden v. Rice, 24 Conn. 350; Coggeshall v. Pelton, 7 Johns. Ch. 292.
    II. The trustees of the Southern Railway not being public officers, their appointment is not a violation of the 20th section of article II of the constitution.
    III. The 6th section of article VIII of the constitution does not forbid the construction of railroads or other public works by municipal bodies, with their own means or credit, and for their own exclusive benefit; but is limited to a prohibition against their doing so, in partnership with, or by assisting private persons to construct them. Cass v. Dillon, 2 Ohio St. 613, 622 ; Cooley on Const. Lim. 218, and cases cited; C. W. & Z. R. R. Co. v. Clinton Co. 1 Ohio St. 95.
    IV. The trustees of the Southern Railway do not constitute a corporation, company or association, in any sense known to the law : but if they do, they do not come within the description of a joint stock company, corporation, or association, as used in section 6, article VIII, of the contitution. Dartmouth College Case, 4 Wheat. 636 ; Flinn v. The Auditor of State, 7 Ohio St. 333 ; Liverpool Ins. Co. v. Massachusetts, 10 Wallace, 566.
    V. If the grant of power to the city of Cincinnati, to build a railroad from Cincinnati to Chattanooga in Tennessee, can be considered an abuse of the taxing power, it is one for which there is no remedy by judicial process ; but, on the contrary, it is strictly within the limits of legislative discretion, although the work may not be local to Cincinnati, nor internal as to the State, as being one in which the city, assenting to bear the cost of its construction, has a direct and special interest, designed and calculated to promote the public good. Lehman v. McBride, 15 Ohio St. 591; Cooley’s Const. Lim. 128, 129, 171, and cases cited ; Booth v. The Town of Woodbury, 32 Conn. (5 Am. Law Reg. N. S. 210) C. W. & Z. R. R. Co. v. Clinton Co. 1 Ohio St. 95, 98, 100, 104; Com’rs of Knox Co. v. Nichols, 14 Ohio St. 266 ; Goodin v. Crump. 8 Leigh, 120 ; Talbott v. Dent, 9 B. Mon. 526.
    
      Henry Btanberry, also for defendant in error :
    1. The act of the general assembly, under the provisions of which this railway is provided for, is not unconstitutional in so far as it vests in the superior court or court of common pleas, the appointment of the five trustees. The power to-appoint the trustees is given to the judges as a court, not eo nomine as persons, nor even as individual judges, virtute officii. In that important particular the case is distinguished from Attorney General v. Kennon et al. The power to appoint the trustees being given to the court, there can be no-question' about the creation of any new officers or new office ; but the only question is as to the capacity of the existing officers to exercise the new power so given.
    2. This leads us to the question whether the appointment of these trustees by the superior court is the exercise of judicial or political power.
    If it is the exercise of judicial power, the plaintiff admits-they have no case.
    If the appointment of these trustees was an exercise of political power, it must, notwithstanding, be considered as well made. There is no constitutional prohibition against vesting in the superior court the power to appoint the trustees.
    The court has not doubted its authority, but has made the appointment; and this presents the question in a very different aspect than if the court had refused to appoint, on the ground that the legislature could not compel its exercise. The case of The State v. Gazley, 5 Ohio, 14, is directly in point.
    It is well to bring before the court other acts passed by the legislature under the present constitution, which confer powers on the courts more akin to political power than the act in question. In the appointment of directors of workhouse, a penal institution, Swan & Sayler, 868 ; of auctioneer, S. & S. 24; of examiners of county commissioners' reports, S. & S. 88; of county commissioners, S. & C. 244; of school examiners, S. & S. 706; of commisioners for the improvement of the Cuyahoga river, 58 St. 177; of commissioners of costs and fees, with a salary of $1,500, and term of office for three years, 68 Stat. 58 ; of trustees for schools specially endowed, S. & C. 1383; of trustees for benevolent female associations, S. & S. 51; of inspectors of tobacco, S. & C. 733; of inspectors of spirits, linseed oil, lard oil, coal oil, beef, pork, lard, butter, and pot and pearl ashes, S. & S. 401; of inspectors of illuminating oils, S. & S. 402 ; of inspectors of alcoholic liquors, S. & C. 729.
    I am not aware of any case in which this court has questioned the constitutional power of the legislature to devolve such duties on the courts, although cases in which the objection might have been raised, have been before the court. Smith v. Kibbe, 9 Ohio St. 563, was such a case. It was upon the act cited above, for the appointment by the probate court of inspectors of alcoholic liquors, S. & C. 729.
    But the appointment of these trustees was a judicial act. First of all, it was made by a court in a case depending in the court. See secs. 2 and 6 of the act.
    Next, we have a subject-matter for judicial action — that is to say, the appointment of trustees to manage a fund, devoted to a specific public use and benefit.
    It was competent for the legislature to declare this fund a trust fund in the strictest sense of that term, and, as such, to bring it within the range of well established judicial cognizanee. And this is undeniable, if hitherto such a fund had not been stamped with the character of a trust or brought under the supervision of a court.
    But it is clear that this fund is in the nature of a public charity, and as such altogether fit for judicial cognizance. I use the word charity in its comprehensive meaning, as established by judicial decisions; not as confined to the distribution of alms, or aid to the poor, but as embracing a subject-matter devoted to a lawful public use.
    See The McIntire poor school, 9 Ohio, 287 ; Bryants. McCandless, 7 Ohio pt. 2, p. 135.
    3. The act providing for the railway does not fall within the prohibitions contained in section 6, article VIII, of the constitution.
    This section is a limitation upon the grant to the general assembly of the legislative powers of the State contained in section 1, article II.
    The grant of power is universal. The act in question is an exercise of this power, and must therefore prevail, unless it comes within some one of the exceptions to this general grant. No exception or limitation upon this power is relied upon to prohibit this act, save only the above section.
    Nevertheless, it may be well to consider another prohibition — that is, this clause of section 26, article II: “Nor shall any act, except such as relates to public schools, be passed to take effect upon the approval of any other authority than the general assembly, except as otherwise provided in this constitution.”
    The first section of the act does provide that no money shall be borrowed to construct the road, until the question of providing the railway shall be submitted to a popular vote, and a majority of the electors shall decide in favor of the line.
    There is no provision in the act which declares that it shall not take effect until it is approved of by the popular vote. As no future day was fixed in the act for its taking effect, it became to all intents a law when it was passed. 
      C. W. & Z. R. R. Co. v. Comr's of Clinton Co. 1 Ohio St. 86; Cass v. Dillon, 2 Ohio St. 607.
    We are therefore brought to the consideration of the 6th section of the 8th article as the only restriction of the legislative power, which can be claimed to apply to such an exercise of that power as appears in the act in question.
    There is not an ambiguous or repugnant word to be found in the section; and if, as we say, the intention was to prohibit a municipal corporation from becoming a stockholder in, or lending its money, or its credit, or giving its aid, to such companies, corporations, or associations as are mentioned in the section, no fitter language could have been used to make that intention manifest. But, from the language of the section, we see no room to imply an intention to extend its prohibitions against the use of municipal funds by a city for its own corporate purposes. When the intention is, in other sections of the constitution, to prohibit a municipality the use of its own funds for its own corporate purposes, by its own agencies, that intention is expressed. See sections 1, 2 and 4 of this article VIII, and section 6 of article XII.
    It may be claimed in this case, as it was claimed in the case of Cass v. Dillon, 2 Ohio St. 614, that these limitations upon the State must be held to apply also to the various civil subdivisions of the State; but that argument was answered by this court in that case, as follows: “ We do not think so. The natural and obvious meaning of these several sections applies their limitations to the State alone, and not to her subdivisions.”
    We say, then, that according to the language used in the 6th section, and in other sections of the constitution in pari materia, the construction is clear of doubt, and that there is no foundation to imply a prohibition of the application by a city of its own funds or credit, to its own corporate pm> poses, by its own agencies.
    Where the intention is clearly expressed from the language used, we are not required to apply other tests or rules to find the intention.
    
      Suppose we do resort to other tests. Take, for instance, that which relates to the mischief to be provided against. Pray what was the mischief? It was the mixing up the municipal funds with private funds and private enterprises, in subscriptions to the stock, and loans of money and credit to private corporations and associations, for the construction of railroads, turnpikes, and canals. Look at the proceedings of the constitutional convention, and there you will find the formidable array of private corporations to which such aid had been given. There was the mischief \ and this fith section was the remedy.
    
    Again, look at the action of that convention upon this subject. Yol. I, p. 292 ; vol. II, pp. 312, 109, 110.
    It seems to me that there is no doubt as to the constitutionality of the act, even if we construe the act and the 6th section as if no constitutional questions were involved. But when there is a question of the violation of constitutional law by an act of the legislature, a court must see its way very clear. No mere doubt — not even reasonable doubt — is then allowed to prevail. No inclination of opinion will suffice. Nothing short of a conviction, clear of doubt, will authorize a court to pronounce the law void.
    4. Another ground taken by the counsel of the plaintiffs is, that the five trustees are made a corporation by this act, within the prohibition of the sixth section. Whether we call the board a corporation, or, more near to the mark, a quasi corporation, it is not the sort of corporation named in that section. We must understand the term as used in this section as applied to the subject-matter. It refers alone to corporations or associations, private as to property and ownership, in which the city may take stock, or to which it may lend its credit or money; whereas, this board of trustees owns no private property or stock representing such property, but is simply the managing element of public property belonging to the city. The city funds and the city credit are not to be loaned to any other corporation or association, but by this act are to be used by the city itself, through its own agencies, in aid of a public work to be constructed by itself, and to be' owned exclusively by itself.
    5. It is argued that as the city is only one terminus of a line extending beyond the corporate limits, and beyond the territorial limits of the State, it is not such a municipal purpose as comes within the legal capacity of the city to construct, or for which a tax can be. levied upon the property of the citizens.
    The authorities cited, in the opinion of this court, in the C. W. & Z. R. R. 1 Ohio St. 77, would seem to dispel all doubt, and to render further argument unnecessary. See also 2 Ohio St. 607, 608, 647, 649. 14 Ohio St. 472, 473, 479.
    The legislature has decided that a railway which has one terminus in the city is a corporate purpose, and the people of the city have decided that this road is essential to their interests. So, too, the legislature has decided not only that it is a corporate purpose, but also that the citizens may be taxed to accomplish that purpose. Observe that the legislative grant is not for a road anywhere, but for a road that must have a terminus in a city of the first class, having a population over one hundred and fifty thousand, and not for taxation to any amount, but with a fixed limit.
    This matter of municipal purpose and municipal taxation has been settled as to this road by the proper authority.
    6. But it is said that, admitting the power of the legislature to declare what shall be ‘ a corporate use or a fit subject for municipal taxation, such power may be abused to such an extent as to justify the interference of the judiciary.
    What is the abuse of these powers by this law ? Is it as to an object in which the city has no interest, and from which ‘t can derive no benefit, or even which is unusual ? Surely this very object has been too well upheld by the courts as a legitimate municipal purpose to be now questioned. Or is it an abuse of the power of local or city taxation, and that undoubtedly is the most important matter, for there is the greatest danger.of abuse. In other words, is the amount of tax so excessive as to be beyond all the benefits likely to arise to the city ?
    
      Now, what authority, legislative or judicial, has been designated by the constitution to guard against that abuse ? The sixth section of the thirteenth article answers the question : “ The general assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such power.” The duty has been performed in this case by the very authority provided by the constitution.
    
      William S. Galdwell and F. A. Ferguson, also for defendants in error.
   Scott, C. J.

The question presented by this case is as to the constitutionality and vaildity of the act of the general assembly of this State, passed March 4, 1869, entitled “An act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants.”

The general scope and purpose of the act is to authorize any such city to construct a line of railroad leading therefrom to any other terminus in the State or in any other-State, through the agency of a board of trustees consisting of five persons, to be appointed by the superior court of such city, or if there be no superior court, then by the court of common pleas of the county in which such city is situated. The enterprise cannot, however, be undertaken until a majority of the city council shall, by resolution, have declared such line of railway to be essential to the interests of the city, nor until it shall have received the sanction of a majority vote of the electors of the city, at a special election, to be ordered by the city council, after twenty days’ public notice.

Eor the accomplishment of this purpose, the board of trustees is authorized to borrow a sum not exceeding ten millions of dollars, and to issue bonds therefor in the name of the city, which shall be secured by a mortgage on the line of railway and its net income, and by the pledge of the faith of the city, and a tax to be annually levied by the council, sufficient with such net income to pay the interest and provide a sinking fund for the final redemption of the bonds.

In pursuance of the authority which this act purports to give, the city council of Cincinnati has resolved, that it is essential to the interests of that city that a line of railway, to be named The Cincinnati Southern Railway,” shall be provided between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee ; and this action of the council has been endorsed and approved by a vote of more than ten to one of the electors of the city, at an election duly ordered and held pursuant to the requirements of the act. But, fifteen hundred of the electors of the city voted against the proposed project; and the grave question here presented, on behalf of these unwilling electors and tax payers, is whether it is within the power of the State legislature to authorize the taxation of their property by the municipality for the purpose of constructing such a line of railway, by the means and in the manner prescribed in this act.

The consequences which may reasonably be expected to result from the exercise, by municipal corporations, of powers such as this act purports to confer, both in respect to public and private interests, are so momentous as to make it difficult to overestimate the importance of the question ; and to demand at our hands the most careful investigation and deliberate consideration. This is the first instance, in the history of the State, so far as we are aAvare, in which the general assembly has undertaken to authorize municipalities to embark in the business of constructing railroads, on their own sole account, as local improvements. The railway contemplated in this instance, is several hundred miles in length, extending into other States ; the sum authorized to be expended in its construction is a large one, and should it prove inadequate for the completion of the road, we may reason ably expect it will be increased by subsequent legislation.

These considerations, and the apparent abuse of discre tion involved in declaring such a work to be so far local in its character as to justify its construction by a single city, at the sole expense of its citizens, all give a high degree of interest to the question. But we must bear in mind, that the question is one of legislative power, and not of the wisdom, or even of the justice of the manner in which that power, if it exists, has been exercised. Had we jurisdiction to pass upon the latter question, we should probably have no hesitation in declaring the act under review to be an abuse of the taxing power.

Let us then first inquire, under what conditions it becomes •competent for the judiciary to declare an attempted act of legislation, formally enacted by the general assembly, to be invalid, by reason of unconstitutionality.

Courts cannot, in our judgment, nullify an act of legislation, on the vague ground that they think it opposed to a general “ latent spirit,” supposed to pervade or underlie the constitution, but which neither its terms nor its implications clearly disclose in any of its parts. To do so would be to arrogate the power of making the constitution what the court may think it ought to be, instead of simply declaring what it is. The exercise of such a power would make the court sovereign over both constitution and people, and convert the government into a judicial despotism. Whilst we declare that legislative power can only be exercised within the limits prescribed by the constitution, we are equally bound to keep within the sphere allotted to us by the same instrument. On this subject we cannot do better than to adopt what is so well said by Judge Cooley, in his treatise on “ Constitutional Limitations,” pp. 128, 129, where, in speaking of limitations upon legislative authority, he says: “Some of these are prescribed by constitutions, but others spring from the very nature of free government. The latter must depend for their enforcement upon legislative wisdom, discretion,, and conscience. The legislature is to make laws for the public good and not for the benefit of individuals. It has control of the public moneys, and should provide for disbursing them for public purposes only. Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes, and what does properly constitute a public burden, are questions which the legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the courts, except perhaps where its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful. Where the power which is exercised is legialative in its character, the courts can enforce only those limitations which the constitution imposes, and not those implied, restrictions, which, resting in theory only, the people have been satisfied, to leave to the judgment, patriotism, and sense of justice of their representatives." And he adds on page 171: “Nor are the courts at liberty to declare an act void because, in their opinion, it is opposed to a spirit supposed to pervade the constitution but not expressed in words; ”■— citing People v. Fisher, 24 Wend. 220; Cochran v. Van Surlay, 20 Wend. 381; People v. Gallagher, 4 Mich. 244 ; Benson v. Mayor of Albany, 24 Barb. 252; Grant v. Courter, 24 Barb. 232; Wynehamer v. People, 13 N. Y. 391.

We do not understand it to be claimed that the act in question is an assumption of any of the powers specially delegated to the general government, by the constitution of the United States ; nor that , it is an encroachment upon the functions and powers conferred by the state constitution on other departments of the government, and therefore impliedly withheld from the general assembly. The only questions, therefore, with which we have to deal, are: 1st. Whether the act is within the general grant of legislative power which the constitution decía,res to be vested in the general assembly; and, 2nd. Does it contravene any of the limitations upon, the exercise of legislative power, which are either expressed or clearly implied in any of the provisions of that instrument. And before we can answer the former question in the negative, or the latter in the affimative, our convictions must be clear and free from doubt. Lehman v. McBride, 15 Ohio St. 291; C. W. & Z. R. B. Co. v. Com. of Clinton Co. 1 Ohio St. 77, and authorities there cited.

Let us then consider, first, whether this act is within the general scope of legislative power, independent of special constitutional prohibition.

That it is within the legitimate scope of legislative power to authorize a municipality of the State to aid in the construction of a public improvement such as a rail road, by becoming a stockholder in a corporation created for that purpose, and to levy taxes to pay the subscription, must be regarded as fully settled in this State by repeated adjudication. -In the case of C. W. & Z. R. R. Co. v. Com. of Clinton County, 1 Ohio St. 77, the subject was very fully considered; and it was held, that as the State may itself construct roads, canals, and other descriptions of internal improvement, so it may employ any lawful means and agencies for that purpose, among which are private companies incorporated for the construction of such improvements. And it was said that, for much stronger reasons, counties might be authorized to construct works of a similar kind, of a local character, having a special relation to their business and interests. And as the State might construct or authorize the counties to construct these works entire, or create corporations to do it entire, it was held that, as a question of power, each might be authorized to do a part.

The validity of subscriptions to the stock of railroad corporations, made by counties, cities, towns, and townships of the State, under special legislative authority, has been drawn in question in many cases which have since come before this court, and in none of them has the authority of the legislature to grant such power of subscription been doubted. 1 Ohio St. 105; Id. 153 ; 2 Ohio St. 607 ; Id. 647 ; 6 Ohio St. 280; 7 Ohio St. 327 ; 8 Ohio St. 394; Id. 564; 11 Ohio St. 183 ; 12 Ohio St. 596 ; Id. 624; 14 Ohio St. 260 ; Id. 472 ; Id. 569.

And the cases in which such legislative authority has been upheld by the courts of last resort in other states are too numerous even for reference. A list of more than fifty of such, cases may be found in Judge Cooley’s treatise before referred to, p. 119, note 4.

If w.e even admit that all these decisions have been unwise, yet it is clearly too late to overrule them in this State. Were the question a new one, and properly determinable by the judgment of a court, we should perhaps concur in opinion with Judge Eedfield, that subscriptions for railway stock, by cities and towns, do not come appropriately within the range of municipal powers and duties. Yet he is constrained .to add, that “ the weight of authority is all in one direction, .and it is now too late to bring the matter into serious debate.” 2 Redf. on Railways, 398, 399, note. And if, in the absence of constitutional prohibition, a municipal corporation may be authorized to aid, by stock subscriptions, in the construction ■of a railway which has a special relation to its business and interests,' upon what principle shall we deny that it can be .authorized to construct it entirely at its own expense, when its relation is such as to render it essential to the business interests of the municipality ? And upon the question of fact whether a particular road is thus essential to the inter<ests of the city, this court in the case of the C. W. & Z. R. R. already referred to, quote approvingly from the case of Goodin v. Crump, 8 Leigh R. 120, in which it was said : “ If then the test of the corporate character of the act is the probable benefit of it to the community within the corporation, who is the proper judge whether a proposed mea.sure is likely to conduce to the public interest of the city ? Is it this court, whose avocations little fit it for such inquiries ? Or is it the mass of the people themselves — the majority of the corporation, acting (as they must do if they act .at all) under the sanction of the legislative body ? The latter assuredly.” And in Sharpless v. Mayor of Philadelphia, 21 Penn. St. R. 147, it was said byC. J. Black, “If the legislature may create a debt and lay taxes on the whole people to pay such subscriptions, may they not with more justice, and greater propriety, and with as clear a constitutional right allow a particular portion of the people to tax themselves, to promote in a similar manner a public work in which they have a special interest ? I think this question cannot be answered-in the negative.”.....“I cannot conceive of a. reason for doubting that what the State may do in aid of a work of general utility, may be done by a county or a city, for a similar work, which is especially useful to such county or city, provided the State refuses to do it herself, and permits it to be done by the local authorities.” The question in that case was upon the validity of subscriptions of stock made by the city of Philadelphia in aid of two railroads. One of these was the Hempfield road, which had its eastern terminus at Greensburg, three hundred and forty six miles west of Philadelphia. Both subscriptions were sustained,, and the court said, “It is the interest of the city which determines the right to tax her people. That interest does not necessarily depend on the mere location of the road.” . . . . “But it is not our business to determine what amount of interest Philadelphia has in either of these improvements. That has been settled by her own officers and by the-legislature. Eor us it is enough to know that the city may-have a public interest in them, and that there is not a palpable and clear absence of all possible interest perceptible by every mind at the first blush. All beyond that is a question of expediency not of law, much less of constitutional law.”

By the act under consideration, no railroads are authorized to be constructed, except such as have one of their termini in the city which constructs them. And that a city has no peculiar corporate interest in such channels of commerce as lead directly into it, is a proposition which, to say the least, is very far from being clearly true. And as the public or corporate interest in an improvement, rather than-its particuliar location, determines the question as to the-right of taxation for its construction, the fact that the road contemplated in the present case will lie mainly outside of this State, can make no difference. The right of eminent domain cannot be exercised, nor the road constructed in or through other States, without their permission and authority; and the act in question contemplates nothing of the kind» But when such consent is given, we suppose the particular direction given to the road can have no bearing on the question of corporate power to construct it.

It is also to be borne in mind, that this is not a case in which the legislature has determined a particular public improvement to be of a local character, and has imposed the burden of its construction on an unwilling municipality. But it is the case of an authority given to a city to exercise its powers of taxation only for the construction of an improvement which the local authorities have declared to be essential to the interest of the city, and even that cannot be done till a majority of its people have sanctioned the measure by their deliberate votes.

The towns and cities of the State are not the creations of the constitution. It recognizes these municipalities as existing organizations, properly invested by immemorial usage with powers of assessment and taxation for local purposes of a public character, but which were nevertheless subject to control and regulation by the-State, and that these powers might be abused unless properly restricted. The constitution itself provides where the power of preventing such abuse shall be vested. It declares, in article 13, sec. 6, that “the general assembly shall provide for the organization of cities and incorporated villages, by general laws, and restrict their power of taxation,' assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse of such power.” It is very clear, that this constitutional mandate cannot be enforced according to judicial discretion and judgment. In the very nature of the case, the power which is to impose restrictions so as to prevent abuse, must determine what is an abuse,. and what restrictions are necessary and proper. As is said by the learned author from whose treatise we have before quoted: “The moment a court ventures to substitute its own judgment for that of the legislature, in any case where the constitution has vested the legistature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference. The rule of law upon this subject appears tobe, that except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision, which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts can not assume their rights.” Cooley’s Const. Lim. 167,168

We do not moan to say that every legislative enactment is necessarily valid unless it conflict with some express provision of the constitution. Undoubtedly, the general assembly cannot divest A. of his title to property and give it to B. They cannot exercise judicial functions. They can impose taxes only for a public purpose. For it is of the essence of a tax that it be for a public use. Nor can they by way of taxation impose a burden upon a portion of the State only, for a purpose in which that portion of the State has no possible peculiar local interest. But to justify the interference of a court upon any of these grounds, the case must be brought clearly, and beyond doubt, within the category claimed; and such we are persuaded is not the cast in respect to the act in question.

We have been referred to recent adjudications in several States, which are supposed to sustain the claim that taxation cannot be authorized for the construction of a railroad in cases like the present. In the case of Whiting v. Sheboygan Railway Co. 9 American Law Reg. 156, it was held that “a statute levying a tax for the sole purpose of making a direct gift of the money raised to a mere private railway in which the State or the tax payers have no ownership, is unconstitutional,” The case, from Michigan, of The People ex rel. The Detroit and Howell R. R. Co. vs. Township of Salem, proceeds upon the same grounds. But in the case now before us, the road is the property of the tax payers who furnished the means to build it. The recent decisions in Iowa, are in conflict with the former uniform line of decisions on the subject in the same State, and in all the cases referred to in either of those States, the reasoning upon which the decisions rest, is in conflict with what we cannot but regard as the settled law of this State.

We are brought to the conclusion that there is nothing in the general purport and main object of this act, which places it outside of the sphere of legitimate legislative power.

We proceed to consider whether it is in conflict with any of the express limitations imposed by the constitution.

It is claimed that the general assembly, in the act in question, by authorizing the judges of the superior court to appoint trustees of the contemplated railway, have exercised an appointing power, which is forbidden by the 27th section of the 2nd article of the constitution. The argument is, that the trustees whom the act authorizes the court to appoint ar& public officers ; that their appointment is not the exercise of a judicial function, or of any power that can be conferred on the judges of the court as such ; and that the-conferring of this power of appointment is the creation of a new and independent office, which cannot be filled by the appointment of the legislature, whether the appointee be designated by name, or by reference to another office which he holds. In the same connection it is claimed that this-power of appointment is conferred on the judges of the' superior court in violation of art. 4, sec. 14, of the constitution, which prohibits the judges of the Supreme Court and the court of common pleas from holding any other office of profit or trust under the authority of this State or the United States. And it is further argued that the act is in conflict with art. 2, sec. 20, of the constitution, because it does not fix the term of office and compensation of the trustees. Are any of these positions clearly well taken?

We shall first inquire whether the power of appointment-conferred by this act on the judges of the superior court involves the exercise of an appointing power by the general assembly. Were the judges thereby appointed to a public office? In support of the affirmative of this question we are referred to the decision of this court in the case of The State on relation of The Attorney General v. Kennon et al. 7 Ohio St. R. 546. In that case it was held that the selection and designation by name of the defendants, by the general assembly, to exercise continuously, and as a part of the regular and permanent administration of the government, important public powers, trusts and duties, is an appointment to office. But we .think the present case can not be brought within the principle of that decision. In this case there is no designation of individuals by name to exercise any public functions whatever. It is clearly the case of an additional power or duty annexed to existing offices, and not the creation of a new office. Upon the filing of a petition by the city solicitor in the superior court, praying for the appointment of trustees, it is made the duty of the judges of that court to make such appointment, and to enter the same on the minutes of their court. The power of appointment and. of subsequent removal for unfaithfulness, can be exercised only by the court, as such ; and all power of control in the premises on the part of the judges ceases with the termination of their judicial offices. It is true that the act confers a new power on the judges of the superior court, but, as was said by Judge Swan, in his concurring opinion in the case referred to, “if adding to the duties or powers of existing offices is an exercise of the appointing power, then every new duty required or power conferred upon any State, county, or township officer, must be deemed the exercise by the general assembly of the appointing power, and forbidden by the constitution.”

But it is said that the appointment o'f these trustees is not the exercise of a judicial function. Suppose this to be so. Does it follow that no functions except such as are purely judicial can be constitutionally annexed to the office of a judge ? Can judges not be made conservators of the peace, and, as such, be required to discharge duties which are not of a judicial character ? If no power of appointment to any office or position of public trust can' be devolved upon a court or judge, it is certain that many of the statutes of this State are invalid. Quite a number of statutes have been referred to by counsel, in which such power of appointment is given to probate judges, judges of the court of common pleas, and judges of the. superior court.

But is it clear that the selection and appointment of these trustees, which the act requires to be made by the judges of the superior court, and to be entered on the minutes of the court, is in no sense a judicial act ? It is the act of a court, and the selection of the trustees and the fixing of the amount of their bonds require the exercise of judgment and discretion. Authorities are not wanting to show that such an act is properly judicial in its character. Thus, where a statute of New York authorized a town to issue bonds to aid in the construction of a railroad, and made it the duty of the county judge to appoint, under his hand and seal, three commissioners to carry into effect the purposes of the act, it was held by the supreme court of that State that the act of making such appointment was judicial. It was said by the court: “ The action sought from the county judge is judicial. It is conferred by the statute upon the office of county judge, to be exercised under its seal. The duty requires the exercise of judgment and discretion in the selection of commissioners. The individual is in no way responsible for any acts of those he may select in the discharge of their duties. In no sense is the act of selecting commissioners ministerial. They do not act on the command of the county judge; he issues no process to them. If, after appointment, the persons designated accept and act, they do so under and by virtue of the statute, and not in virtue of the order designating them as commissioners.” Sweet v. Hulbert, 51 Barb. S. C. Rep. 315.

Nor do we think that these trustees are officers within the meaning of that clause of the constitution which provides ■that “The general assembly, in cases not provided for in this constitution, shall fix the term of office, and the compensation of all officers.” This clause cannot be regarded as comprehending more than such offices as may be created to aid in the permanent administration of the government It cannot include all the agencies which the general assem bly may authorize municipal and other corporations to employ for local and temporary purposes. These trustees have no connection with the government of the State, or of any of its subdivisions. They have nothing to do with the general protection and security of persons or property. Their sole duty is to procure and superintend the construction of a particular road, and to lease it when constructed. When this shall have been done, so far as appears from the act, their functions end; and in the road, when constructed, the State will have no proprietary interest. All the railroads of the State, though owned and operated by private corporations, are, in an important sense, public improvements ; yet the officers who manage them, and superintend their pecuniary interests, are not public officers within the meaning of this constitutional provision. No one supposes that the compensation of such officers must be fixed by the legislature.

It remains to consider, with reference to the general purpose and object of the act, whether there are in the constitution special limitations on the general legislative power vested in the general assembly, which prohibit the authorizing of a city to raise, by taxation of its citizens, the means for constructing a railroad leading into such city, when such an improvement is deemed by a majority of the citizens to be essential to its interests. It is claimed that the grant of such authority is in violation of article 8, sec. 6, of the constitution, which reads as follows : “The general assembly shall never authorize any county, city, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever ; or to raise money for, or loan its credit to or in aid of, any such company, corporation, or association.”

It is proper to consider this section in connection with the sections which precede it in the same article, and with some provisions found in other articles which bear more or less directly upon the same and kindred subjects.

The first two sections of this article enumerate the purposes for which the State may contract debts, and the third section declares that, except the debts thus specified, “no debt whatever shall hereafter be created by or on behalf of the State.” The fourth section declares that, “The credit of the State shall not, in any manner, be given or loaned to, or in aid of, any individual, association, or corporation whatever ; nor shall the State ever hereafter become a joint ■ owner or stockholder in any company or association, in this State or elsewhere, formed for any purpose whatever.” The fifth section forbids the assumption by the State of the debts of any county, city, town, or township, or of any corporation whatever, unless such debts shall have been created to repel invasion, suppress insurrection, or defend the State in war. In article 12, sec. 6, it is declared, “the State shall never contract any debt for purposes of internal improvement.” And article 13, sec. 6, provides as follows : “ The general assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their powers of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.”

In Cass v. Dillon, 2 Ohio St. Rep. 613, 614, it was held, and we think properly, that the limitations imposed upon the State by the first three sections of art. 8, were not intended as limitations upon her political subdivisions — her counties and townships. And the clear implications of the fifth section are, that counties, cities, towns, and townships may create debts to repel invasion, suppress insurrection, or defend the State in war, which the State may assume ; and may also create debts for other purposes, which the State is forbidden to assume. By the fourth section a limitation is imposed in respect to the State, similar to that prescribed in the sixth section, in regard to counties, cities, towns, and townships. The State, and her municipalities and subdivisions are clearly distinguished, and treated of separately. It is to the latter that the inhibitions of the sixth section relate. What are the extent and purport of those inhibitions ? Its own language must furnish the answer to this question, if that language be plain and unambiguous. Of course, I do not mean that we are bound to adhere strictly to the letter, without regard to the evident meaning and spirit of the instrument. The fundamental law of the State is to be construed in no such narrow and illiberal spirit. On the contrary, it is to be construed according to its intention, where that is clear; and that which clearly falls within the reason of the.prohibition may be regarded as embodied in it. Still, it is very clear that we have no power to amend the constitution, under the color of construction, by interpolating provisions not suggested by the language of any part of it. We cannot supply all omissions, which we may believe have arisen from inadvertence on the part of the constitutional convention. Recurring then to the language of this section, it is quite evident, that it was not intended to prohibit the construction of railroads; nor, indeed, to prohibit any species of public improvements.

The section contains no direct reference to railroads, nor to any other special classes of improvements or enterprises. Its inhibitions are directed only against a particular manner or means by which, under the constitution of 1802, many public improvements had been accomplished. And its language is sufficiently comprehensive to embrace every enter-prize involving the expenditure of money, and the creation of pecuniary liabilities. Under the constitution of 1802, numerous special acts of legislation had authorized counties, cities, towns, and townships, to become stockholders in private corporations, organized for the construction of railroads, to be owned and operated by such corporations. The stock thus subscribed by the local authorities was generally authorized to be paid for by the issue of bonds, which were to be paid by taxes assessed upon the property of their constituent bodies. Many of these enterpises proved unprofitable, and the stock became valueless. Some of them wholly failed. Heavy taxation followed to meet and discharge the interest and principal of the bonds thus issued. Towns and townships were induced to attempt repudiation of their contracts. And, as the records of this court abundantly show, the assessment and collection of the taxes, which the preservation of good faith required, had repeatedly to be enforced by mandamus. In many, if not all of these cases, it was alleged that the stock subscriptions sought to be enforced had been voted for and made under the influence of false and fraudulent representations made by interested officers and agents of the corporation to be aided by the subscription. At the time of the formation and adoption of the present constitution these evils had begun to be seriously felt, and excited the gravest apprehensions of calamitous results. Under such circumstances this section was made a part of the State constitution. It may be well again to recur to its language : “ The general assembly shall never authorize any county, city, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever ; or raise money for, or loan its credit to, or in aid of any such company, corporation, or association.” The mischief which this section interdicts is a business partnership between a municipality or subdivision of the State, and individuals or private corporations or associations. It forbids the union of public and private capital or credit in any enterprise whatever. In no project originated by individuals, whether associated or otherwise, with a view to gain, are the municipal bodies named permitted to participate in such manner as to incur pecuniary expense or liability. They may neither become stockholders nor furnish money or credit for the benefit of the parties interested therein. Though joint stock companies, corporations and associations only are named, we do not doubt that the reason of the prohibition would render it applicable to the case of a single individual. The evil would be the same, whether the public suffered from the cupidity of a single person, or from that of several persons associated together.

As this alliance between public and private interests is clearly prohibited in respect to all enterprises, of whatever kind, if we hold that these municipal bodies cannot do on their own' account what they are forbidden to do on the joint account of themselves and private partners, it follows that they are powerless to make any improvement, however necessary, with their own means, and on their own sole account. We may be very sure that a purpose so unreasonable was never entertained by the framers of the constitution.

Besides, if this section is to be construed so as to prohibit municipal corporations from making improvements on their own account, and with their own means, then the fourth section of this same article, which is quite similar in language, must be held to prohibit the making of any improvements by the State, on her own account, and with her own means. This would not only be highly unreasonable, but would conflict with the clear implications of the section which prohibits the State from contracting any debt for purposes of internal improvement. This implies that the State may make all such improvements as will not involve the creation of a debt.

We find ourselves unable therefore, upon any established rules of construction, to find in this section the inhibition claimed by counsel to arise by implication. It may be, and indeed I think it very probable, that had the framers of the constitution contemplated the possibility óf a grant to a municipal corporation of such powers as the acts under consideration confer, they would have interposed farther limitations upon legislative discretion. But omissions of such a grave character surely cannot be supplied according to the conjectures of a court.

It is argued, however, that the trustees of the contemplated railway are a corporation, and that the act in question violates the terms of this section, by authorizing the city to raise money for and loan its credit to this corporation, to enable it to construct a railroad. We think it unnecessary to inquire whether the trustees provided for by the act are in any sense a corporation or not. Eor if they are an association or organization of any kind whatever, having a property interest in the road distinct from that of the city, then the objection is well taken. The inhibitions of this section are not directed against names. But it is clear that the trustees are a mere agency through which the city is authorized to operate for its own sole benefit. Neither as individuals, nor as a board have they any beneficial interest in the fund which they are to manage, or in the road which they are to build. They are in fact, as well as in name, but trustees, and the sole beneficiary of the trust is the city of Cincinnati. They are authorized to act only in the name and on behalf of the city. Looking therefore to the substance of things, this case cannot be brought within the terms of the prohibition, unless we are to regard the city itself as being one of the corporations for which money is not to be raised, nor a loan of credit made.

We do not understand counsel as relying upon any other ground of objection to the validity of this act than those which we have considered, and are of-opinion that the judgment of the court below must be affirmed.

Welch, White, Day and McIlvaine, JJ., concurred.  