
    James Taylor et al. v. The Commissioners of Ross County. Appeal reserved in the District Court of Ross county. Martin Kantner v. The Trustees of Duchouquet Township, Auglaize County.
    Error to the Court of Common Pleas of Auglaize county.
    1. Taxation can only be authorized for public purposes. Where, therefore, a statute authorizes a county, township, or municipality, to levy taxes not above a given per cent, on the taxable property of the locality, for the purpose of building so much of a railroad as can be built for that amount, and the part of a railroad so to be built can be of no-public utility unless used to accomplish an unconstitutional purpose, such tax is illegal and can not he imposed.
    2. Section 6, article 8, of the constitution, declares, that ‘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.” What the general assembly is thus prohibited from doing directly, it has no power to do indirectly.
    3. Where public credit or money is furnished by any of the subdivisions of the state named, to be used in part construction of a work, which, under the statute authorizing its construction, must be completed, if completed at all, by other parties out of their own means, who are to own or have the beneficial control and management of the work when completed, the public money or credit thus used, can only be regarded as furnished for, or in aid of, such parties.
    4. The act of April 23, 1872, to authorize counties, townships, and the municipalities therein named to build railroads, etc. (69 Ohio L. 84), authorizes the raising of money by taxation, which is equally applicable to the unlawful purpose of aiding railroad companies, and others engaged in b hiding and operating railroads, as it is.to any lawful purpose, and gives to the officers intrusted with the control and application of the money thus raised, no means, or power, of discrimination as to-the lawfulness, or unlawfulness, of the work, or purpose, to which it is to be applied, and is thus in contravention of section 6, article 8, of the constitution, and therefore void.
    James Taylor and others filed a petition, in Ross County Common Pleas, against the board of commissioners of Ross county — Wesley Claypool, John Karshner, and Samuel Cline, county commissioners, etc. — and Robert D. MeDougal, county auditor, which read as follows :
    “The plaintiffs, for a cause of action, state as follows:
    At the June session of said county commissioners of Ross county, Ohio, to wit, on the 5th day of June, a. d. 1872, they made and caused to be entered upon the journal of their proceedings, an order in the words and figures following to wit:
    “ In the matter of the Ross C ounty R rilroad :
    “ This day came John II. Putnam and presented to th& board the following written request:
    “To the County Commissioners of the County of Boss, in the State of Ohio: The undersigned tax-paying electors of said county of Ross, in pursuance of the provisions of the act' of the general assembly of the State of Ohio, entitled-‘an act to authorize counties, cities, incorporated villages, and townships to build railroads, and to lease and operate-the same, passed April 23, 1872, do hereby request you to-require the qualified electors of said county, at a me -ting- or special election for that purpose to be called and held, to vote for, or against the construction of a proposed railroad, the route and termini of which are as follows: Commencing at a point southvvestwardly from the village of Bainbridge, in the valley of Massie’s run, on the southern-, boundary of Ross county, thence to Chillicothe; with one-branch thence to the northern boundary of said county, in the direction of Lancaster ; and another branch from Chillicothe to the northern boundary of said county, in the direction of Circleville; and another branch from a point in the city of Chillicothe where said last-named branch leaves the main line, to the southern bouudary of said-county in Eranklin township, in the direction of Ports-month; and another branch from Chillicothe, in the direction of Washington, to a point on the western boundary of said county, at or near where the surveyed line of the Dayton, Xenia and Belpre Railroad crosses said boundary:
    “In consideration whereof, and it appearing that said request is signed by more than one hundred, tax-paying electors of this county; it is ordered by the board that a special election be held by the electors of the county, at their usual places of voting, for the purpose set forth in said request, and that the following notice thereof be published for thirty days in all the city newspapers:
    “ Notice to the Electors of Boss County, Ohio. — A special election by the qualified voters of Ross county is hereby called, to be held at the usual places of voting in the several election precincts of said county, on Monday, the 8th day of July, between the hours of six o’clock a. m. and six o’clock p. m., to.decide whether Ross county shall, or shall not, construct a railroad as proposed in a petition filed with the commissioners in the words following, to wit:
    “Commencing at a point southwestwardlv from the village of Bainbridge, in the valley of Massie's run, on the southern boundary of Ross county, thence to Chillicothe; with one bianch thence to the northern boundary of said county, in the direction of Lancaster; and another branch from Chillicothe to the northern boundary of said county, in the direction of Circleville; and another branch from a point in the city of Ohillicothe where said last-named branch leaves the main line, to the southern boundary of said county in Franklin township, in the direction of Portsmouth; and another branch from Chillicothe, in the direction of Washington, to a point on the western boundary of said county .at or near where the surveyed line of the Dayton, Xenia and Belpre Railroad crosses said boundarv.
    “The aggregate amount to be appropriated toward the construction of said railroad by Ross county is six hundred thousand dollars, of the bonds of said county, and the proceeds thereof to be apportioned and applied to the several parts, of said railroads as íollows: Three hundred thousand dollars of said aggregate sum is to be applied exclusively to that part of said railroad running from the southern line of said county in the valley of Massie’s run, through Chillicothe, to the northern boundary of said county, in the direction of Lancaster. Provided, that the contract for the construction of this part, of said railroad, shall contain a provision that no order for the delivery of any part of Raid three hundred thousand dollars of bonds shall be approved until the county commissioners are satisfied that, by the time this line shall be graded and bridged through Ross county, ‘The Ohio and Kentucky Railroad,’ of which it is designed to foim part, will be graded and bridged from Lancaster to the northern border of said county.
    “One hundred and seventy-five.thousand dollars of said aggregate sum is to be applied exclusively to that part of said railroad running from the southern line of county, in Eranklin township, in the direction of Portsmouth, through Chillicothe to the northern boundary of said county, in the direction of Circleville. Provided, that the contract, for the co struction of this part of said railroad shall contain a provision that no order for the delivery of any part of said one hundred and seventy-five thousand dollars of bonds shall be approved until the county commissioners are satis.fied that, by the time said line is graded and bridged through Ross county, ‘The Scioto Valley Railroad,’ of which it is designed to form a part, will be graded and bridged irom Columbus to the northern boundary of said county.
    “One hundred and twenty-five thousand dollars of said aggregate sum is to be applied exclusively to that part of said railroad running from Chillicothe to the western boundary of Ross county, in the direction of Washington, as aforesaid. Provided, that the contract for the construction of this part of said,railroad shall contain a provision that no order for the delivery of any part of said one hundred and twenty-five thousand dollars of bonds, shall be approved until the county commissioners are satisfied that, by the time said line is graded and bridged, the line of railroad from Dayton through Xenia and Washington, of which it is designed to form a part, will be graded and bridged from Xenia to the western boundary of Ross county.
    “ The bonds to be issued in pursuance hereof, shall be executed by being signed by the county commisioners, under the seal of the county, and attested by the auditor of the county. Such bonds shall bear interest at six percent. per annum, payable semi-annually on the 1st day of July and the 1st day of January each year; interest and principal payable in New York city, at such place as shall be designated by the county commissioners in said bonds.. The amount of bonds apportioned to each division of such railroads as above described, shall be issued in four equal series, payable as follows: the first, on the first day of July in the year 1880; the second, on the first day of July in the year 1884; the third, on the first day of July in the year 1888 ; and the fourth, on the first day of July in-the year 1892.
    [Here follow the names of more than one hundred persons.]
    “ Those electors who are in favor of the construction of said railroad, as proposed in the petition above recited, will vote, ‘Railroad — Yes.’ Those opposed to the construction of said railroad, as proposed in said petition, will vote,. ‘Railroad — No.’
    “The election will be conducted and its result obtained and declared in the manner, and by the officers, provided for by the laws of Ohio regulating the county elections.
    “Dated this 4th day of June, 1872.
    “ Wesley Claypool,
    “John Kaushner,
    “ Samuel Kline,
    “ Commissioners of Boss Co., O.
    
    “Attest: “R. D. McDougal, County Auditor.”
    
    At the time named in said order and notice, and at the-places therein mentioned, a pretended special elec ion was held lor the purpose in said order and notice specified. At which pretended election 5,289 persons voted, Railroad— Yes;” and 1.705 persons voted, “Railroad — No.”
    The plaintiffs further say, that, on or about the 16th day of January, a. d. 1872, a railroad company was duly incorporated according to the laws of this state, by the name of the “ Ohio and Kentucky Railroad Company,” with capital stock amounting to two millions of dollars, for the construction of a railroad with termini in the city of Lancaster,. Fairfield county, Ohio, and a point directly north of the city of Maysville, in the State of Kentucky, and to pas¡5 through the counties of Fairfield, Pickaway, Ross, Pike,, Highland, Adams, and Brown, in this state. And the railroad which the said railroad company was formed, incorporated, and organized for the purpose of constructing, and which it is authorized and empowered to construct, is the railroad designated and described in said “ written request,” and notice, as the “ Ohio and Kentucky Railroad.”
    The plaiutiffs further say, that, on the 19th day of February, 1851, an act was passed by the general assembly of' this state, enfitled “an act to charter the Dayton, Xenia and Belpre Railroad Company,” whereby a Body corporate and politic, with perpetual succession, by the name and style of the Dayton, Xenia and Belpre Railroad Company, was created, with power to construct and maintain a railroad from Dayton, in Montgomery county, to Xenia, in Greene county; and thence to intersect with the Belpre and Cincinnati Railroad, at or near the point where said railroad crosses Rattlesnake creek, in the county of Highland, Ohio. "Which company was duly organized, and thereafter, under said charter, constructed sixteen miles of said road from Xenia to Dayton. The said company became embarrassed, and its road, etc., was sold under a decree of foreclosure, in February, 1865 — the Little Miami and Columbus and Xenia Rail row! Companies became the purchasers thereof, and paid therefor the sum of $415,000. The said purchasers afterward leased said railroad, so purchased by them, to the Pittsburg, Cincinnati and St. Louis Railway Company, for the term of ninety-nine years, renewable forever; which lease remains in full force and effect. And plaintiffs aver, that the railroad which said “Dayton, Xenia and Belpre Railroad Company” was incorporated and authorized to construct, and a part of which was constructed, ns aforesaid, is the same railroad as that which is referred to and described in said “ written request,” and order, and notice, as the “Dayton, Xenia and Belpre Railroad.”
    And the plaintiffs further say, that, on or about the 4th day of May, 1871, a railroad company was duly incorporated according to the laws of this state, by the name of the “ Scioto Valley Railroad Company,” with capital stock amounting to one million dollars, for the construction of a rail toad with termini in the city of Cireloville, Pickaway county, Ohio, and the city of Portsmouth, in Scioto county, Ohio, with Chillicothe, Ross county, and Waverly, Pike county, as intermediate points. And the railroad which the said “ Scioto Valley Railroad Company” was incorporated and organized to construct, as aforesaid, is the railroad described in said “ written request,” and order, and notice, as the “Scioto Valley Railroad.”
    The plaintiffs further say, that the sum of six hundred’ thousand dollars will not construct the parts of the railroads for or against which said electors were notified to vote: that sum is inadequate to pay what their construction will cost. It will cost more than twelve hundred thousand dollars to construct them.
    And the plaintiffs aver, that the real object and purpose of said proceedings, which will result, if consummated, in the appropriation of six hundred thousand dollars of the money of the tax-payers of Ross county, was and is, and the actual effect and consequence thereof will be, to raise and expend that money to aid said railroad companies, respectively, to construct the said railroads which they were severally incorporated and organized for the purpose and with the power to construct, as aforesaid.
    And the plaintiffs further say, that what is described, in the aforesaid “ written request” and order and notice, as a main railroad and four branched railroads, are not, in reallty, a main railroad and four branched railroads. What is described in said proceedings as a main road and as a branch from Chillicothe to the northern boundary of Ross-county, in the direction of Lancaster, is designed to constitute, and will, if constructed, in fact constitute, a part of the said “Ohio and Kentucky Railroad.” What is described as the secoud and third branches, is designed to constitute, and will, if constructed, in fact constitute, a part of said “ Scioto Valley Railroad.” And what is described as-the fourth branch, was designed to constitute, and will, if constructed, in fact conslitute a part of the said “ Dayton,. Sinia and Belpre Railroad.” The line of each of said three railroads runs in a different direction from, and is wholly independent of and distinct from, the lines of the others.
    What is described as the main road in said proceedings-is about 21½ miles long, and what are described as branches-are about 51¼ miles long.
    Plaintiffs aver that oné of the objects which the subscribers of .said “ written request,” and the defendants, had in describing, in said request and order and notice, the said parts of said three separate and independent railroads-as a main road and four branched railroads, was to evade the provision of the act of the general assembly in said-proceedings mentioned, which requires the question of the construction of “ a railroad ” by a county to be submitted to the electors thereof as a single proposition, and which prohibits the question of the construction of more than one railroad by a county from being submitted to the electors-thereof at one and the same election, and to be voted upon-as a single proposition.
    And another object which said persons had in view in so-describing said parts of said three railroads, was the fact that they were of the opinion that a greater number of the votes of said electors could be got in favor of a proposition to appropriate six hundred thousand dollars toward, the construction of said parts of said three independent railroads, than could be got in favor of appropriating money to build one'of them; and that the requisite majority of said-electors could not be obtained in favor of a tax to build only that part of said “Ohio and Kentucky Railroad ” described in said proceedings, or only that part of said “ Scioto Valley Railroad” described in said proceedings, or only that part of said “Dayton, Xenia and Belpre Railroad” described in said proceedings.
    The plaintiffs further say, that the termini of the several parts of said three railroads which the said county commissioners propose to construct by virtue of said proceedings, are not specified in the notice aforesaid as required by said act of the general assembly. Nor are the termini of either of said three railroads specified in said notice.
    And the plaintiffs further say, that no survey of the line of the said parts of said three railroads which it is proposed to construct under said proceedings, or of either, was made prior to said pretended election, nor has any been made since, by said county commissioners or under their direction, nor has any profile or specification of the work, or any part of the work, proposed to be done, been made.
    And plaintiffs further say, that one of the provisions in said “ written request,” and order and notice, set forth, renders the construction of said part of said “ Scioto Valley Railroad” described in said proceedings, impracticable. The said provision is in the words following, to wit:
    “One hundred and seventy-five thousand dollars of said aggregate sum is to be applied exclusively to that part of said railroad running from the southern line of said county, in Erauklin township, in the direction of Portsmouth, through Ohillicothe, to the northern boundary of said county, in the direction of Oircleville: Provided, that the contract for the construction of this part of said railroal, shall contain a provision that no order for the delivery of any part of said one hundred and seventy-five thousand dollars of bonds shall be approved until the county commissioners are satisfied that, by the time said line is graded and bridged through Ross county, the ‘ Scioto Valley Railroad,’ of which it is designed to form a part, wdl be graded and bridged from Columbus to the northern boundary of said county.”
    
      The plaintiffs say, that said provision can not be carried •out or executed, for the reason, among others, that the termini of the railroad mentioned and described in said proceedings as the “ Scioto Valley Railroad ” are the said city of Circleville and the said city of Portsmouth; and said company has no power to construct any part of its road north or east of Circleville. It has no power to construct a railroad between Columbus and Circleville. The company incorporated to construct said “ Scioto Valley Railroad ” was incorporated as hereinbefore stated.
    And the plaintiffs aver, that the electors of said county who voted at said election were led to believe, by the notice aforesaid, and did believe when they voted, that the“ Scioto Valley Railroad Company” was authorized to construct a railroad whose northern terminus was said city of Columbus, whereas, in truth, its northern terminus is said city of Circleville. Said electors were thereby misled in regard to a material fact and matter involved in the proper determination of the question submitted to them by said county commissioners, as aforesaid.
    And the plaintiffs further say, that no part of the said three railroads, which said three railroad companies or corporations were incorporated and have been organized to construct as aforesaid, has been actually constructed, excepting said sixteen miles of said “Dayton, Xenia and Belpre Railroad.” All of said companies have been duly organized, and large subscriptions to the capital stock-have been made to each.
    And the plaintiffs further say, that many of the landowners through whose lands said parts of said three railroads which it is proposed to^ construct, by virtue of the proceedings aforesaid, will, in case the same are so constructed, demand compensation for such of their lands as will be appropriated and injured by the construction thereof; and that said land-owners will demand and be entitled to require such compensation to be paid, or secured to be paid, to them before their lands are appropriated and taken for said purpose. Yet the said act does not provide, nor does any other act of the legislature provide any means or way whatever for raising the money, or any of the money, which will be required and necessary to pay the compensation to said land-owners for said appropriation of their lands. From that fact said act is inoperative in all its parts; and the said parts of said three railroads, proposed to be constructed by said county commissioners, can not be lawfully constructed. And plaintiffs say, that the act whose title is given in the eighth section of the statute, mentioned in said proceedings, was repealed on the 23d day of April, 1872.
    And the plaintiffs further aver, that the said act of the legislature undertakes to confer upon any county power to construct “a railroad.” But it does not provide that any county shall have power to construct “a railroad” and branched railroads.
    
    And the plaintiffs further say, that the sixth section of the eighth article of the constitution of this state, provides “that the general assembly shall never authorize any county, city, town, or township, by a vote of the citizens or otherwise, to become a stockholder in any joint-stock company, corporation, or association whatever, or to raise money for, or to loan its credit to, or in aid of any such company, corporation, or association.” The plaintiffs are advised and allege that, by the above constitutional restriction, the proposed attempt to raise the said $600,000, in the manner and for the purpose aforesaid, is unauthorized and unlawful.
    And the plaintiffs submit to the court that the said act of the general assembly, in said proceedings mentioned, is unconstitutional and void.
    And the plaintiffs charge and insist, that by reason of the facts and allegations hereinabove contained, the aforesaid “ written request,” and the aforesaid order and notice made and given in obedience to said “ written request,” and the said election held in pursuance of said requisition, of said commissioners, were wholly unauthorized and unlawful, and are void. In making said order, the said commissioners exceeded and abused their powers, and their proceedings in the premises are in fraud of the rights of the plaintiffs and other tax-payers of said county; and if said commissioners proceed to issue the bonds of said county for said $600,000, and to make a contract or contracts-for the construction of said parts of said three railroads,, their action will work great and irreparable injury to the plaintiffs and other tax-payers of said county.
    Yet, notwithstanding the existence of the facts herein-above stated, the said county commissioners claim and insist that, by virtue of said act of the general assembly and the proceedings aforesaid, they are lawfully authorized to make contracts for the construction of said railroads, and to issue the coupon bonds of said county for the said sum of $600,000; and they threaten to issue such bonds, and deliver the same to the treasurer of state, to be disposed of by him as provided in such act. And the plaintiffs-aver, that said commissioners will make, execute, issue, and deliver said coupon bonds, and enter into contracts for the construction of said railroads, or some of them, and apply the said bonds in payment of the amounts that will become due the contractors for the building thereof, unless restrained by the court from so doing.
    The plaintiffs are residents and electors and tax-payers of said county of Ross; and in case said bonds are issued and are required to be paid, their taxable property in said county, which is of great value, will be assessed, with the other taxable property therein, to raise .sufficient sums of money to pay said bonds and the interest which will accrue thereon.
    The plaintiffs did not, nor did either of them, vote in favor of the construction of said railroads at said special election.
    The question involved in this cause is one of a common and general interest of many persons; and the plaintiffs sue in this cause as well for the benefit of themselves as other tax-payers of said Ross county, who are too numerous to be made parties, and it is impracticable to bring all of them before the court.
    The plaintiffs therefore pray that a temporary injunction may be granted enjoining the defendants from making, issuing, or delivering the coupon bonds of said Ross county, or any other evidence of indebtedness, for the said sum of $600,000, or any part thereof, and also enjoining the said county commissioners from making or entering into any contract or contracts for the construction of any of the railroads, or any part of the railroads proposed to be constructed under the proceedings aforesaid instituted before the said county commissioners, and which are hereinabove set out at large; and also restraining-the defendants from doing any act, matter, or thing, or authorizing any other person or persons to do any act, matter, or thing toward carrying out said project for the construction of the railroads, or any part of the railroads mentioned in said proceedings. And the plaintiffs pray that, on the final hearing of this cause, said temporary injunction may be made perpetual. They further pray for such other, further, or different relief as the nature of their case may require, and as may seem equitable and just.”
    To this petition the defendants filed an answer, reading as follows:
    “ The said defendants, for answer to the plaintiffs’ petition, say they deny all and singular the allegations of the said petition, which charge, or are meant and intended to charge, that the said proceedings of the said county commissioners are intended to cause the said county of Ross to become a stockholder in either of the three corporations named in said petition, or in any joint-stock company, corporation, or association whatever; or to raise money for or to loan its credit to, or in aid of any such company, corporation, or association; or that the real object and purpose of said proceedings for appropriating $600,000 toward the construction of said “Ross County Railroad,” was, or is, or that the actual effect and consequence thereof will be, to raise and expend that amount of money to aid the several railroad companies, named in said petition, to construct their said several roads.
    They deny that that part of said Ross County Railroad which lies between said point in the valley of Massie’s run, in the southern boundary of Ross county and the city of Chillicothe, with a branch thence to the northern bouudary of said county, in the direction of Lancaster, is designed to constitute, and will, if constructed, in fact constitute a part of said “Ohio and Kentucky Railroad;” or that the said branches extending north and south from Chillicothe are designed to constitute, and will, if constructed, in fact constitute, a part of said “ Scioto Valley Railroad;” or that the said branch from Chillicothe, in the direction of Washington, is designed to constitute, and will, if constructed, in fact constitute, a part of said “ Dayton, Xenia and Belpre Railroad,” in any sense which involves ownership or control of said several parts of said. Ross County Railroad, by any or either of the said railroad corporations, or in any sense inconsistent with the absolute ownership, control, and operation of said railroad by the said county of Ross, or the leasing or sale thereof under the provisions of the said act of the general assembly under which said proceedings were had, as set forth in the plaintiffs’ petition. The defendants admit that they expected, and still expect, the said Ohio and Kentucky Railroad, or other railroad or railroads, corresponding substantially in location with said proposed Ohio and Kentucky Railroad, to be constructed from Lancaster, in the county of Fairfield, southwestwardly, in the direction of Chillicothe, to the northern boundary of said county of Ross, so as to connect with said Ross County Railroad, and in this sense to cause said Ross County Railroad to form a part of the said line known as the Ohio and Kentucky Railroad, but not otherwise; that they expected, and still expect, the said Scioto Valley Railroad, or other railroad or railroads located in the Scioto valley, to be constructed from Columbus southwardly to the northern boundary of said Ross county, so as to connect with the said branch from Chillicothe to the said northern boundary, in the direction of Circleville, and in this sense to cause said Ross County Railroad to form a part of said Scioto Valley Railroad, but not otherwise; and that they also expected, and still expect, that a line of railroad from Dayton, through Xenia, and Washington, to a point in the western border of said Ross county, in the direction from Chillicothe to Washington, will be constructed so as to connect with said Ross County Railroad, and in this sense, but not otherwise, to cause the latter to form a part of said line from Dayton,, through Xenia and Washington, to Chillicothe, and in this-manner to make said Ross County Railroad substantially part of said several railroads, so that the same may be run and operated as connecting lines, under the restrictions, limitations, and provisions of the act referred to in said petition, but not otherwise.
    They deny that the several parts of said Ross County Railroad, as described in said pétition and notice, are independent and distinct lines, and not substantially one road;. they insist that the same are one in the ownership of the said county of Ross, and are to be constructed wholly in the interest and for the benefit of said county as such single owner, and are to be operated as one road by such owner,, or, if need be, may be leased or sold, as the interests of said county may require, and as authorized by said act.
    They deny that said act prohibits the question of the-construction of more than one railroad by a county, from being submitted to the electors thereof at one and the same election, and to be voted upon as a single proposition; and they insist that whether it does or not, the said request, order, and notice are not in evasion or violation of the provisions of said act, or meant or intended so to be; and they deny all the allegations of the plaintiffs’ petition which so charge.
    They deny all the allegations of said petition which charge, or are intended to charge, that the termini of the railroad proposed to be constructed by said Ross county are not specified as required by law; that the description of che western terminus of said branch, from Chillicothe, in the direction of Washington, to wit, a point in the western boundary of said Ross county, at or near where the surveyed line of the Dayton, Xenia and Belpre Railroad crosses said boundary, has reference to a well-known surveyed railroad line, usually known by the name aforesaid, crossing the western boundary of said Ross county in the direction from Washington to Chillicothe, and capable of being ascertained with certainty.
    They further deny that any of the provisions of said written request and order and notice, set forth, render the construction of any part of said railroad, so proposed to be constructed by said Ross county, impracticable; and as to the several allegations of the plaintiffs’ petition in that behalf, they say that it was and is contemplated that aline of railroad, usually known and designated as “the Scioto Valley Railroad,” will be constructed from the city of Columbus, in said Scioto valley, southwardly, down said valley, through the cities of Circleville and Chillicothe, to the city of Portsmouth, on the Ohio and at the mouth of the Scioto river; that said line is to be formed of several roads, to be constructed in part by the counties or other municipal corporations situated in said valley, and including said comity of Ross, under the act referred to in said petition, and where not so constructed by counties or other municipal corporations, then by such other corporations as-are authorized to construct and operate railroads; and that the proviso in said proceedings, that the contract for the construction of that part of said Ross County Railroad, extending from the southern line of said Ross county, in Eranklin township, in the direction of Portsmouth, through Chillicothe, to the northern boundary of said county, in the direction of Circleville, should contain a provision that no order for the delivery of any part of said $175,000 of bonds should be approved until the county commissioners should be satisfied that by the time said line is graded and bridged through Ross county, the Scioto Valley Railroad, of which it is designed to form a part, will be graded and bridged from Columbus to the northern boundary of said county, had reference to said general line of railroad in the Scioto valley, and was one of the “other particulars in regard to the appropriation” of the sum so to be voted upon, which was authorized to be specified in said request and notice, and not otherwise provided in said act, and was a reasonable and proper precaution to guard against the improvident expenditure of the sum so appropriated, and to secure to that part of said road a proper northern outlet, so as to render the same practically useful; and they deny that the electors of said county who voted at said election were led to believe by the said notice, or that they did believe, that said “ Scioto Valley Railroad Company,” the corporation referred to in said plaintiffs’ petition, were authorized to build a railroad whose northern terminus was said city of Columbus, or that said electors were misled in regard to any material fact and matter involved in the proper determination of the question submitted to them by said county commissioners; and the defendants submit that it is immaterial whether the said Scioto Valley Railroad, or that part of it lying between Columbus and the north line of Ross county, shall be constructed, graded, and bridged by the corporation named in the plaintiffs’ petition as the “Scioto Valley Railroad Company,” or by the counties, cities, townships, or other municipal corporations, along said line, as authorized by law, or by any other corporation having authority to construct a railroad.
    They deny that the said act of the legislature, under which these defendants are acting, does not provide for a legal appropriation of the right of way for said road, or that there is no legal authority for raising such money as may be necessary, if any shall be necessary, to procure the right of way for said road, by purchase or otherwise, or that said act is, for that or any other reason inoperative in all its parts, or that said railroad can not be lawfully constructed.
    They submit that the powers conferred upon the county commissioners by sections eight (8) and nine (9) of said act are reasonably sufficient to secure the right of way, or other thing necessary for the construction and operation .of said railroad ; and further, that the said county of Ross now own stock in the Marietta and Cincinnati Railroad Company, as reorganized, amounting at the par value thereof to $72,171.84, which they are authorized by the twelfth section of said act to sell, and to apply the proceeds to the construction of said county railroad, including the right of way necessary to such construction. And they further submit that should the means thus, or- otherwise, provided for by the act aforesaid prove inadequate for the completion of said road-, or should any defect exist in any of the provisions of said act, it may reasonably be expected that said-inadequacy or defect will be met and supplied by additional legislation.
    They insist that the railroad so proposed to be constructed, including its so-called branches, is authorized by the act aforesaid; that said act is not in conflict with any provision of the constitution of the State of Ohio, nor are the proceedings and election aforesaid, or the raising of said sum of $600,000, in the manner and for the purposes so specified, for any reason unauthorized, unlawful or void; nor have said commissioners exceeded their powers, nor will the issuing of said bonds and the making of.a contract for the construction of said railroad, work great and irreparable injury to the plaintiffs or other tax-payers of said county.
    They deny that said sum of $600,000, together with the means which they are authorized to receive by donations in lands, money, bonds, and other personal property, and that which may reasonably be expected to arise from the sale of the said railroad stock now owned by said county as aforesaid, is inadequate to pay what the construction of said railroad will reasonably cost; and they submit that if any deficiency should arise, the same can be provided for under the power conferred by said’act, and within the restrictions and limitations therein provided; that the assessed valuation for purposes of taxation, last made before said vote was taken, of the real and personal property in said Ross county amounted to $20,948,683; that said sum of $600,000 is much below five per cent, of such valuation, and it may reasonably be expected that any future valuation will l>e greatly increased over the past, so as to allow of a corre-pouding increase in the amount to be appropriated for railroad purposes, within the restrictions imposed by said act. And they fuither submit that it is not contemplated by said act that the sum so voted at any one time shall be sufficient to construct the whole of the road then proposed to be constructed; but provision is expressly made, by the seventh section of said act, for entering into a contract ‘‘with the party who will agree to build the greatest number of miles of road for the sum appropriated.”
    Wherefore the defendants pray that the prayer of the plaintiffs may be denied and their petition dismissed, with costs.
    To this answer the plaintiffs filed a general demurrer, which the Common Pleas sustained, and rendered judgment, perpetually enjoining the defendants as prayed in the petition. The cause was taken by appeal to the District Court, and by that court reserved for determination in the Supreme Court.
    The trustees of Duchouquet township, Auglaize county, being about to issue bonds and let a contract for the construction of a railroad, pursuant to an election held in that township under the same statute (act of April 23, 1872), Martin Kantner filed a petition in the Common Pleas of that county, averring said election and said purpose of said trustees, and that said statute was unconstitutional and void, and praying that said trustees might be perpetually enjoined from issuing said bonds and letting, said contract. The trustees filed a general demurrer to his petition. The Common Pleas sustained the demurrer, and dismissed the action. Kantner, having excepted to the decision upon the demurrer, by leave of this court, filed here his petition to reverse the judgment of the Common Pleas.
    Both cases were argued together.
    
      
      R. A. Harrison, A. S. Dickey, and T. A. Minshall, for James Taylor et al.:
    The act of April 23, 1872, commonly called “ the Boesel Law” is unconstitutional. The constitutionality of an act is to be determined by its operation, and not by the form it may be made to assume. The Slate, ex. rel. the Attorney-General, v. The Judges, etc., 21 Ohio St. 1, 11.
    By reason of section 6, article 8, of the constitution, there once five things which a county, city, town, or township can not be empowered to do, namely:
    1. It can not be authorized to become a stockholder in any joint-stock company, etc.
    2. Nor to raise money for any such company, etc.
    3. Nor to raise motley in aid of any such company, etc.
    4. Nor to loan its credit to any such company, etc.
    5. Nor to loan its credit in aid of any such company, etc.
    Every intelligent citizen of the state knows that the main object of the act under examination was, and that in point of fact its actual operation, if put into practice, will be, to enable the several counties, cities, towns, aud townships to use their credit and raise and expend their money in aid •of railroad companies. That, in short, its object was, and its operation will be, to enable the political organizations .and municipalities named to do indirectly what they are prohibited from doing.
    "When the provisions of this act are examined, it is manifest that the object was to enable counties, etc., to construct pieces of the lines of railways, projected by railroad companies, and when completed, to be owned and operated by such companies. This is clearly the general purport of the .act, as we shall now endeavor to show:
    1. The title of the act declares it to be an act to authorize counties, etc., to build railroads, and to lease and operate the same. But there is no provision in the act which provides the means for equipping or maintaining any road that may be constructed under it, nor which authorizes the same to be operated by the county that may construct it. But the net does provide that every railroad that may be constructed under it, shall be either leased or sold to some person or company; and this, even before its completion. Vide sec. 10. Counties, etc., are thus, in effect, authorized to build, under the name of railroads, parts of railways projected by-railway corporations, and to be owned and operated by such corporations. The power conferred is not the power to build a line of railway, but to build a railroad; and under that name to construct a part of a line of railway, projected by a private railroad company, and then make the same over to such company, to be owned and operated by it for its own gain.
    2. The seventh section requires county commissioners,upon the electors voting in favor of building a railroad, to “ enter into contract with the lowest responsible bidder for the whole of the road, or with the party that will agree to build the greatest number of miles of road for the sum appropriated. There is no provision in the act authorizing additional money to be raised to complete a proposed road, when the sum voted is insufficient for that purpose. Why is a county authorized to expend money in building an incomplete railroad, which, in its incomplete state, can not be used by, nor be of any advantage to, any person, except a railroad company in whose interest and as a part of whose line of railway it has been constructed ? There can be but one-answer to this question. The expenditure is authorized, in order to enable a county, in this indirect way, to aid a company to construct its line of railway, instead of aiding it do the same thing by subscribing to its capital stock, or giving money, or loaning credit, or money, to it.
    3. The act provides that every county, and every city, and every township, and every village, in the state, may construct a railroad, but that neither shall appropriate for the purpose more than five per cent, of the assessed valuation thereof. There are very .few counties or cities in the state, whose taxable property is sufficient to raise, by a tax thereon of five per cent., money enough to construct a line of railway. And a tax of five per cent, upon the taxable-property. of most of the townships and villages, nay, any per cent, thereon, will not be sufficient to build more than a small part of any railroad that can be built and used as such. Why, then, were not only all the counties and all the cities of the state, but also all the townships and villages, included in the act, and each authorized, in terms, to construct “a railroad?” Evidently, the object was, to get contributions, from each of these political organizations and municipalities, of five per cent, on the taxable property of their citizens, to aid railroad companies to build their lines-of railway. This could not be done directly; hence, the-scheme provides that it shall be done by the indirect and fraudulently evasive mode of expending the amount contributed through the instrumentality of county or township organizations, or of .municipalities.
    If the act be put into operation, a county, city, township,, or village will construct a part of a railroad, the residue of which will be constructed by a railroad company. The part constructed by the county, city, township, or village, will be leased or sold to such company for a nominal rent or price. Thus the company will, in fact, become the owner of a line-of railway, constructed partly upon the credit and with the money of the county, township, city, or village, or of all of them. This is just what is expressly and openly proposed to be done in the case now before the court. And it is precisely what is contemplated in every instance where action is taken under the act, although not expressed in words on the face of the proceedings in some instances.
    It may be said by the adverse counsel, that the question above made was settled by the case of Walker v. City of Cincinnati et al., 21 Ohio St. 14. We reply, that the question was not made in, nor presented by, that case. The act under which that ease arose, authorized a city of the first-class to construct a line of railway, with a single or double track, with all the usual appendages, including a line of telegraph between the termini of the railway; and it provides that whenever there shall be, between the termini of the railway, a railroad already partially constructed, or rights of way acquired therefor, which can be adopted as a part of the line of railway, the trustees of the line may purchase the railroad and right of way, and pay for the same out of the trust fund. The act gives the trustees power to rent or lease the right to use and operate the line; but it does not give them the power to sell the same. In view of these provisions, it appears the object of the act is to enable cities of the first class to construct lines of railway, and not to construct a part of a line of railway, built and owned by a railroad company. And this was the view this court took of it.
    II. The act under color of which these proceedings were had, is unconstitutional, so far as it relates to counties and townships, upon another ground. It is, to that extent, in conflict with section 7, of article 10, of the constitution, which is in these words: “Sec. 7. The commissioners of counties, the trustees of townships, and similar boards, shall have such power of local taxation for police purposes as may be prescribed by law.”
    The act authorizes counties and townships to issue bonds, and apply the same toward the construction of railroads. The bonds so issued must be paid by taxation upon the taxable property of the political organization issuing the same. Such taxation is not for a “police purpose.” It can not, therefore, be authorized by the legislature.
    “Local taxation for police purposes,” as used in section 7, of article 10, means taxation for the administration of justice, the maintenance of local government, the support of the poor, and the establishment and repair of roads and bridges, which every citizen has a right to use and can use with his own means of travel and transportation. Cooley’s Const. Lim. 572; Ib. 213, 215; 2 Bouvier’s Law Dic. 348; Dillon on Municipal Corp., sec. 106; Reeves v. The Treasurer of Wood County et al., 8 Ohio St. 333, 339; Broom’s Leg. Max. 414; United States v. Morse, 3 Story, 89; 11 Wend. 151; Stradling v. Morgan, Plowd. 206; Dr. Foster’s case, 11 Coke, 59; Child v. Hudson Bay Company, 29 Wins. 209; Cohen v. Hoff, 3 Brev. 500, 502, 504; Harvard et al. v. The St. Clair and Monroe L. & D. Co., 51 Ill. 130.
    
      It may be said, as Judge Thurman said in Cass v. Dillon, 2 Ohio St. 622, that it is assumed in section 5, of article 8, that a county may create debts to repel invasion, suppress insurrection, or defehd the state in war. But, we submit, that although there may be such an assumption, its utmost effect is to take debts created by counties to repel invasion, suppress insurrection, or defend the state in war, out of the operation of section 7, of article 10, so that taxes to pay such debts may be levied. To give section 5 of article 8 a more extensive effect than that above stated, would nullify section 7 of article 10. The debates in the convention show that our construction of this section is-the correct one. See vol. 2, pp. 775, 501, 120, 747.
    III. The taxing power can only be exercised for public purposes. Cooley on Const. Lim. 479, 487, 490, 492, 493.
    There maybe difficulty in determining what a public-use is. However this may be, the question should be determined, on behalf of the whole public, by some agent of the whole, public. In special cases, as under the ditch law, the road-improvement law, etc., the public necessity is required to be determined and declared by the boards before whom the proceedings are had, before the improvement is ordered.
    But there is no such provision in the “ Boesel act.” Under this act the commissioners, etc., act in a ministerial capacity only. The county commissioners are required to call a meeting of the electors of the county, whenever a written request to do so shall be made by one hundred taxpaying electors of the county. And then, if the tax is voted, they are required to issue the bonds of the county,. and within thirty days proceed to let the road to contract. In the language of the law: “They shall enter into a contract with the lowest responsible bidder for the whole of said road, or with the party that will agree to build the greatest number of miles for the sum appropriated.” There is no point at which the commissioners may exercise their judgment as to the public utility of the road.
    Nor is it any answer to this objection to say, that the-law requires a majority of two-thirds of the electors voting at an election called for the determination of the question of building a road, before the tax may be levied.
    It was upon the ground that a ditch might be located and opened upon the lands of individual proprietors solely for the purpose of private interest, irrespective of the public welfare, without infringing any provision of the ditch law, as it then stood, that this court held the law to be unconstitutional. And, inasmuch as under this act a tax may be levied for the construction of a private railroad, without infringing any provision of the act, it must be held liable to the same objection; as it will hardly be claimed that the taxing power conferred by the constitution extends to other than public purposes.
    It is a matter of general information that in some parts of the state one pursuit of the people largely preponderates over all others. Row take a county or township in which are located a number of iron furnaces. One or more of these furnaces may want a railroad of a. few miles in length to get at the ore, or to carry what they have produced to a point where it may be carried to market. The construction of such a road would be of private benefit to the furnaces concerned, but of no public benefit to the township or county where located. And yet might not these furnaces combine, and with the aid of their employes and other private interests, cause such a road to be constructed under the provisions of this act, and without infringing any of its provisions?
    It is worthy of notice that this is the only instance in which the board of county commissioner’s may be compelled to levy a tax for county purposes independent of their judgment, as to the public necessity of the improvement, toward the construction of which the tax is to be applied.
    Again, the question of public necessity of the road is not submitted as a question to be determined by the voters. The proposition submitted is simply,Railroad or no railroad? Now, many persons who would vote “Railroad — “Yes,” no other proposition being submitted, would vote “No,” ¡upon the question of-the public utility of the road, if submitted as a single, distinct proposition.
    IV. The act is unconstitutional for the further reason that it provides no way for the exercise of the power of eminent domain, and no roád can be constructed under its provisions unless private property is taken in its construction. It can not be constructed without the appropriation of a roadway.
    Section 8 of the act provides that when it may become necessary to exercise this light in the construction of a railway under the provisions of the act, proceedings shall be commenced by the commissioners and conducted in accordance with the act entitled “ an act to provide for the compensation to owners of private property appropriated for the use of corporations,” passed April 5, 1852.
    Now, this act was repealed on the 23d April, 1872, the date of the passage of the Boesel act; and while the latter law may have been passed before the former was in fact repealed, yet the former expressly provides (69 Laws, 96, sec. 25) that its provisions “ shall not apply to proceedings by state, county, township, district, or municipal authorities to appropriate private property for public uses.” And the repealing clause then provides simply, “that no proceedings had under any law herein repealed or modified, nor any proceedings now pending under any of the provisions of said acts repealed or modified by this act, shall be affected by such repeal or modification; but such proceedings, now pending, shall be conducted and completed under the provisions of the laws now in force.”
    And again, the law does not provide a fund from which compensation may be made to the owner of property taken; and for this reason the law is defective as regards the exercise of the power of eminent domain. By the provisions of the act, when any county may avail itself of its provisions, bonds are to be issued for the amount to be expended as determined by the vote of the electors, and delivered by the commissioners to the treasurer of state, whose duty it is to retain them until an order from the chief engineer shall be drawn, approved by the county commissioners, that there had been labor performed and material furnished during-the previous month, in pursuance of the contract to the amount therein specified. And then it is provided in the seventh section (69 Laws, 86) that the commissioners “ shall enter into a contract with the lowest responsible bidder for the whole of said road, or with the party that will agree to build the greatest number of miles of road for the sum appropriated.” It is clear, then, that the whole sum appropriated is to be applied in constructing the road, and that no-part of the sum so appropriated can be applied in procuring the right of way.
    V. This act is unconstitutional, because, while under its provisions, some railroads may be constructed which will-be of benefit to the public, yet others may be constructed for private use and private emolument, and not for public-use and public.benefit.
    The act authorizes any county, township, city, or village to construct a railroad. It does not provide that this may be done when demanded by the public convenience or welfare. The character of the railroad which it authorizes to» be built, is not defined or described in the act. It does not provide any tribunal to determine the question whether a proposed road will be of public utility. See opinion of Brinkerhoff, J., in Reeves v. Treasurer, etc., 8 Ohio St. 333.
    YL This act is void for still another reason:
    Under the constitution, counties and townships are-merely geographical subdivisions of the state. They are-political organizations, not corporations. They exist only for political purposes. Commissioners of Hamilton Co. v. Meighels, 7 Ohio St. 109; Marietta v. Fearing, 4 Ohio, 427.
    The legislature can not, therefore, constitutionally enact that the tax-payers of counties and townships shall, against their consent,- become joint-stock companies, for the purpose, and with the powers, to construct, lease, and sell railroads.
    VII. The provisions of this act in regard to counties and townships are void, because they attempt to authorize-counties and townships to construct railroads wholly outside and remote therefrom.
    The grant of power to counties and townships is unlimited as to the locality where the roads may be constructed.
    A tax levied by county commissioners is necessarily a local tax. The object of such tax must therefore be fora local object. A railroad of such a character as will necessarily be of general benefit to the public at large, is not a, local improvement, and therefore can not be built by local taxation.
    VIII. If the legislature had attempted to authorize counties and townships to construct, equip, maintain, and operate the railroads they might construct under the act, it. would have been void for this reason, if for no other reasons, namely : The exercise of the powers supposed would have changed, substantially, the very objects and purposes-for which these local civil divisions of the state were created. Counties and townships were not created for the purpose, nor does the constitution recognize them as existing for the purpose, of becoming common carriers of passengers and freight for hire, and to incur the enormous liabilities which such a business would impose upon them, and to form such business connections with one another, as well as with corporations and individuals, as carrying on such a business-would necessarity require. And our state constitution does not provide such officers for the exercise of their limited powers of local government, as would be required, if they were to be employed for such purposes. And it is well-known that the officers of such organizations are very seldom competent to discharge such duties as are essential to-manage railroads.
    Besides, such political organizations as counties and townships are not only not adapted to carrying on the business-of constructing and ’operating railroads, for the reasons-above stated; but the carrying of it on would necessarily have a very corrupting effect upon the conduct and management of their ordinary and legitimate affairs, and upon the elections. These considerations, doubtless, induced the-framers of the constitution to restrict the powers, and circumscribe the spheres, of these political organizations, as they did.
    IX. The case of Walker v. City of Cincinnati et al., 21 Ohio St. 14, is not decisive of the validity of the act now under examination.
    The principal objections to the constitutionality of this act, do not exist against the statute which was drawn in question by that case:
    1. It does not appear, from the provisions of the latter statute, that its operation will be to aid railroad corporations to construct railroads; whereas, this act will, in its operation, necessarily have that effect. That is its main and primary object.
    2. The statute provides that no action shall be taken toward the construction of a line of railway under it, unless the city council declare it to be essential to the interests of such city; whereas, under this act, no such finding .and declaration are required.
    3. The constitution does not prohibit cities from levying taxes for any other purposes than police purposes; whereas, it does prohibit counties and townships from levying taxes for any purposes but police purposes, and (o discharge debts incurred to repel invasion, suppress insurrection, and defend the state in war.
    4. That statute does not authorize a railroad to be constructed for private use and private emolument; whereas, under this act, railroads may be constructed to subserve merely private interests, and for that purpose it authorizes taxes to be levied and private property to be taken, without the consent of the owner, and not at a price fixed by him.
    5. That statute provides a fund to pay for the right of way, necessary to construct the road; whereas, this act does not.
    6. That statute authorizes the construction by a city of the first class, of a line of railway, complete and perfect in .and of itself, constructed on the own sole account of the city.
    
      Before leaving the question of the unconstitutionality of this statute, we ask attention to Penn. Railroad Co. v. Philadelphia, 47 Penn. St. 189.
    In a supplemental brief, filed after oral argument, Mr. Harrison made the following points:
    1. The acts supplementary to the so-called “BoeselLaw,” passed March 31, 1873, so far as it assumes to give a construction to the original act, is inoperative as to this case and other pending cases. The Schooner Aurora Borealis v. Dobbie, 17 Ohio, 125; Cooley’s Const. Lim. 94.
    2. The act amending section 12 furnishes additional evidence that the actual intent and purpose of the original act was to enable counties, etc., to aid railroad companies to construct their lines of railway. The amendment contains this proviso:
    “Provided, that in case.of incorporated villages and townships having a population of less than one hundred and fifty tax-paying electors at the last state election, when a, written request to do so shall be made by twenty-five tax-paying electors of such villages or townships, and in all other townships and villages by fifty tax-paying electors, it shall be the duty of the trustees of any township or incorporated village, and the mayor of any city or incorporated village, to call a meeting of the electors of such township, village or city, as provided in section two of this act for counties.”
    The idea of an incorporated village or a township having a population of less than 150 tax-paying electors constructing a railroad, or operating it, is utterly absurd.
    3. A case has recently been determined by the Supreme Court of Massachusetts, in which the question as to what is a private and not a public object within the meaning of the rule that taxes can not be levied except for public objects was considered. The case is not yet reported, having been decided only a few weeks since. But we have seen a brief report of the case in the newspapers.
    From this report, it seems the legislature of Massachusetts, on the 7th of December, 1872, passed an act autho
      rizing tho city of Boston to issue bonds to the amount of twenty-five millions of dollars, the.proceeds of which were to be expended in loans to persons who are, or may become, owners of land in Boston, “the buildings upon which were burned by the fire in Boston, on the 9th and 10th days of November, 1872.” The ultimate end and object of the expenditure, as indicated by the provisions of the statute itself, was to “insure the speedy rebuilding on said land.”
    The court is reported as having decided the act to be unconstitutional, upon the ground that the expenditure authorized by the act was for private and not for public objects.
    The court said : “ The incidental advantage to the public,, or to the state, which results from the promotion of private-interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax; and not the magnitude of the private-interests to be affected, or the degree to which the general interests of the community, and thus the public welfare, may be ultimately benefited by the promotion of those private interests.
    “ The promotion of the interest of individuals, either in respect to property or business, although it may result incidentally in the advancement of public welfare, is in its essential character a private and not a public object. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental.
    “ If it be assumed that the private interests of the owners will lead them to re-establish warehouses, shops, and manufactories, and that the trade and business of the place will be revived or enlarged by means of the facilities thus afforded, still these are considerations of a private interest, and if expressly declared to be the aim and purpose of the statute, they would not constitute a public object in any legal sense.”
    
      
      Thomas Ewing, McClintock & Smith, and M. L. Clark, for the commissioners of Ross county:
    1. The act of April 23, 1872, is constitutional. The unanimous decision of this court in Walker v. Cincinnati, 21 Ohio St. 14, is decisive of this proposition. The Southern Railway act, declared valid in that case, is open to every constitutional objection which can be plausibly urged against the act of April 23, 1872.
    Plaintiffs’ counsel, however, argue that the Boesel law is unconstitutional in several particulars, wherein it differs from the Southern Railway act:
    
      (a) In that it authorizes a sale of a railroad built under its authority. But as it is not alleged in the pleadings that a sale of the Ross County Railroad is contemplated, the question can not properly arise here. Waiving this objection, however, the decision of this court in the Cincinnati case settles this point, for the Southern Railway act authorizes a lease; and if the constitutional prohibition wholly precludes a sale, it obviously and equally precludes a lease —for one is as ready a means as the other of transferring the control and benefits of the railroad to a “joint-stock •company, corporation, or association.”
    
      (b) Because the Boesel law authorizes a tax for the construction of a railroad, without proper determination that such road is a public purpose and of special use to the community taxed.
    The exercise of the power of eminent domain and of the taxing power is restricted to public purposes — the only distinction pertinent to this discussion being that the power of eminent domain may be exercised on any property for any public purpose, while a tax can only be authorized for a public purpose of some probable special benefit to the community taxed.
    Now, it is settled by an unbroken current of decisions in the United States and in England, that all railroads, whether owned by the public or by private persons or corporations, constructed under authority of law, are public purposes. Bradley v. N. Y. & N. H. R. R. Co., 2 Conn. 294; Swan v. Wil
      
      lliams, 2 Mich., 427; 4 Ohio. St. 308; Abbott’s Dig. Law of Corp., title “Eminent Domain,” and many cases there cited; Rex v. Severn and Wye R. R. Co., 2 B. & Ald. 646; Angell on Highways, 11, note.
    None of the authorities rest on the ground that, by a special act of incorporation, the legislature determines the particular railroad proposed in the charter to be a public purpose, but on the ground that every railroad, whether built under special or general laws, designed for general purposes of commerce, is a public use. Hence, the rule is equally applicable to those railroads the routes and termini of which are designated by the legislative acts of incorporation, and to those the routes and termini of which are designated by the corporations or quasi-corporations themselves — as is done under our general railroad act of 1852, and under the Boesel law.
    See case, directly in point, of Buffalo and New York R.R. v. Brainard, 5 Selden, 110.
    The general incorporation act of 1852, and its amendments, under which all the railroads built in Ohio for the last twenty-one years have had their origin, are based on the assumption, as is also the Boesel law, that the railroads constructed under it are public purposes. Hence the act of April 30, 1852, and its amendments, and the act of April 23, 1872, which provide the mode of condemning right of way, etc., under authority of those laws, confine the judicial inquiry to the question of necessity of the appropriation and value of the thing appropriated. They authorize neither inquiry nor decision on the question whether a proposed railroad is a public use. 1 S. & C. 311; Laws 1872, p. 88. In other words, the legislature has decided that all railroads constructed under the general incorporation law or the Boesel law are public uses.
    Counsel cite the case of Reeves v. The Treasurer of Wood County, 8 Ohio St. 346, in which a law authorizing the taking of private property for a ditch without previous-ascertainment that it was a public use, was declared unconstitutional. But this case and that are widely different
      Prima facie a ditch was not a public purpose — as a well, or a saw-mill, would not be. It is not of a class of improvements generally recognized by legislatures or courts as public uses. The purpose might, in some instance, be public;. but the legislature having provided no means of judicially ascertaining the facts which might show the taking to be-constitutional, the law was held invalid. But here the purpose is the' construction of a class of improvements uniformly recognized by legislatures and courts, in Great Britain and throughout the United States, as public uses— equally with turnpikes, common roads, and bridges.
    The fact, therefore, that the county tax authorized by the Boesel law is for a public purpose is settled. But counsel say there is no mode provided for determining that the-proposed road is of local and special benefit-to the community to be taxed ; and therefore the law is invalid.
    It will be observed that the Boesel act does not expressly authorize a county to build beyond its boundaries. Hence, by implication, it restricts the county railroad to county limits. For “ a general power to borrow money or incur indebtedness to aid in the construction of ‘any road or bridge,’ must .be understood to have reference only to the roads or bridges within the municipality.” Bullock v. Curry, 2 Metcalf, 171. See also Cooley’s Const. Lim. 212, 215, and notes, and cases there cited. Moreover, section 12 of the Boesel law contains the proviso, “That in ease of cities or villages, one terminus of said road shall be located beyond the limits of said corf oration, if so determined by a majority of the votes of the electors of said city or incorporated village.” Which is equivalent to an express declaration that in all other cases the road is to be confined to the limits of the municipality building it.
    The fact is, therefore, that the Boesel law authorizes a tax on a county only for a railroad in the county; and then only after two-thirds of the electors voting at a special election called for that purpose shall determine to build the-railroad on a route designated. The law does not put the whole people on oath not to assume the tax unless they will derive special benefit from it; but assumes that a railroad voted for by two-thirds of the electors is of local and special use to the county. No constitutional principle requires any formal finding by the people, or the intervention of any tribunal between the legislature and the people, to determine whether an improvement, for which a local tax is authorized, is of special local benefit.
    Counsel say it is usual to have such intermediate tribunal, and cite the Southern Railway law. The proposition there was extraordinary; and the ceremony of judicially ascertaining the proposed road to be a public use, was doubtless contrived to usher forth the proposition to the voters with a, weight of influence and seeming authority. But no like instance, we believe, can be found in the legislation of the state. It is true, as counsel assert, that under our general state and county road-laws, the usefulness of a proposed road is to be determined by the county commissioners before it is finally established at the expense of the county. 2 S. & C. 1285-1291. Yet in such cases there is no popular vote on the question of establishing the road. But in laying out free turnpikes, on the petition of a majority of the property holders within the tax bounds along a proposed.line, the commissioners have no discretion, but are imperatively required to construct the turnpike. S. & S. 686.
    This turnpike law, and the Boesel law, are the only acts, we believe, of a general nature, passed under the present constitution, authorizing a popular vote on a question of internal improvement. They alike assume the public character of the class of improvements they respectively authorize, and, in effect, leave the question of local benefit to popular vote.
    Most, if not all the acts of 1850 and 1851, authorizing counties to subscribe to the stock of railroad companies, directed an election on the proposition, and peremptorily required the subscription to be made on a majority vote, without vesting the least discretion in any intermediate tribunal. See act to authorize Clinton county to subscribe to the stock of a railroad company, 49 Local Laws, 514; see also like acts as to Ross county, p. 494; and Pickaway, 501; and Fairfield, 511; and Wayne, 517; and townships in Ashland, 521; and Fayette, 525; and Knox, 530; and townships in Preble, 531; and Perry, 536; and Muskingum, and the cities of Zanesville and Putnam, 539; and Summit county, 542. The validity of the taxes levied in pursuance of those subscriptions was assailed in numerous suits; but in not one was it intimated by the courts that the acts were invalid, because they did not provide a tribunal to determine, either whether the proposed railroads were public purposes, or whether they were of local and special benefit to the municipalities taxed. C. W. & Z. R. R. Co. v. Com. of Clinton Co., 1 Ohio St. 78; Goodwin v. Crump, 8 Leigh, 120; Brodhead v. Milwaukee, 19 Wis. 652.
    Counsel seek to break the force of these authorities by insisting that this railroad, if sold, will become a mere private use. But the ownership of a railroad has nothing to -do with the question whether it is a public purpose. If built by an individual or a partnership, without act of incorporation or power of condemnation, a railroad may be a private use — as a farm-road, or a garden-walk, may be. But if the sovereign authority be invoked for the usual corporate organization and powers, then the railroad becomes and remains a public purpose, subject to state regulation for the protection of the public use, no matter how often the road may be sold, or who may own it — for the franchise of condemnation can neither be granted nor maintained except for a public use. The roads authorized by this act differ from those built by private corporations in this, that their public use and character are indicated in every requirement, of the law, and every step of the proceedings under it. And, in respect of the power of the state to protect the public use, if there were a difference between roads constructed under this law and those constructed by private corporations, it would be in favor of its exercise as to these roads originated and constructed by the people, through their agencies, with their money, and for their convenience.
    
      (c) But it is argued that section 7, article 10, of the constitution, which provides “ that commissioners of counties, etc., shall have such power of local taxation for police purposes as may be prescribed by law,” prohibits, by implication, the grant to them of powers of taxation for any other purposes not specially authorized by other provisions of the constitution.
    
      We submit that this section is only a limitation of the taxing power existing in and exercised by the counties from their formation under the first constitution. Cass v. Dillon, 2 Ohio St. 622.
    If the legislature can only authorize counties to tax for police purposes, and such other purposes as are specially authorized, then no county can levy a tax to construct a. common road, a turnpike, or a bridge — for the construction of not one of these is a police purpose. It is an exercise-of police power to see that a ferry-boat, a bridge, a wagon-road, or a railroad, is safe for transit; and to stop its use if, and while, unsafe. But it is not a police power to build bridges, or ferry-boats, wagon-roads, or railroads. It would be an exercise of police power to remove private buildings which may threaten to fall on passers-by; but not to build new ones. A theater may be so constructed so as to endanger the life of play-goers: the police authority may require its modification, but can not build and operate a theater. Counsel orally cited Encyclopaedia Britannica, vol. 7, p. 467, which on examination turns out to be distinctly against them. But they do not, and we venture to-say can not, cite an authority in England or the United States, supporting their proposition that the construction of a common road, a turnpike, or a bridge, is an exercise of police power. All the authorities we have been able to find, point the other way. Dillon on Municipal Corp., secs. 93, 608, 609; Cooley’s Const. Lim. 572, and authorities cited in text and notes.
    If, however, counsel are right in saying that section 7 of article 10 restricts the taxing power conferable on counties to police purposes (and such other purposes as may be specifically authorized in the constitution), and that the construction of common roads, turnpikes, and bridges are police purposes, then taxation for railroads may also be authorized; for a railroad built for the ordinary purposes of commerce, must then be a police purpose. It is of exactly the same class of use with plank-roads, turnpikes, and bridges.
    “It is true,” said Judge Ranney in the Clinton County case, 1 Ohio St. 95, “ that in early times only wagon and turnpike roads were constructed; but it would be strange imbecility to fasten upon government to deny, in the attainment of the same ends, the use of such improvements as science and discovery have brought within reach.”,
    
      (d) It is alleged that no provision is made by this act for the equipment and management of railroads constructed under it; and therefore it is unconstitutional, because obviously designed to aid private corporations through lease or sale of the roads. It might as well be argued that the construction of a turnpike with public moneys is forbidden, because obviously in aid of private stage-companies — or a canal, because in aid of boat-companies. The turnpike, the canal, the railroad, may be alike free to all who are in a situation to use them, consistently with the peculiar mode of use adapted to each. The legislature may provide for the maintenance and operation of these roads by a system of tolls which will leave them open to use by all who conform to regulations lawfully prescribed; or by lease or sale under the present act. Either mode is practicable; by either the public use may be guarded and preserved ; and neither is necessarily in violation of the constitution.
    This is enough. The courts will not declare an act unconstitutional because they think unwarranted exercises of authority under color of it may be attempted by public officers. If such attempt be made or threatened, any taxpayer may enjoin. Until they are made or threatened, the courts will presume that public officers and the people, if they exercise the power of lease and sale at all, will exercise it in modes not prohibited by the constitution. The former constitution of Ohio delegates power to the legislature in precisely the language of the present constitution : “The legislative authority of this state shall be vested in a general assembly.” 1 S. & C. 20, 28. This grant embraces all legislative power; and it has therefore always been a function of the legislature of Ohio to enact whatsoever laws it sees fit, provided they be within the scope of “legislative authority,” as-understood by publicists, and be not prohibited by other constitutional provisions.
    In nearly all the other states the legislatures are endowed with like comprehensive power, limited variously by special provisions of their constitutions.
    Now, in every state in the Union, because of the public use of railroads, whether owned by the public or by private persons or corporations, it is established as a legitimate -exercise of legislative authority to aid their construction through the sovereign power of eminent domain. And, by parity of reasoning, their' construction is a public object justifying the exercise of the taxing power — subject, however, to the sole condition that the road must be of some local and special benefit to the community taxed. Hence, the decisions of the state courts of all the states (with the single exception, we believe, of The State v. The County of Wapello, 13 Iowa, 388), declare that it is within the general grant of legislative power to authorize the construction by any of the municipal or political divisions of a state, alone, or in conjunction with private capital, of a railroad lying within such division, or so connected with it as to, in some degree, specially tend to its prosperity. See Cooley’s Constitutional Limitations, 119, note 4, and over sixty cases there cited.
    The recent Wisconsin case of Whiting v. The Sheboygan Railroad Co., 9 Amer. Law Reg. 156, and the Michigan case of the People, ex rel. The Detroit and Howell Railroad Co. v. The Township of Salem, 5 Amer. Law Reg. 126, are not exceptions in the general current of authorities; as they, by implication, affirm the same doctrine, but declare that “ a statute levying a tax for the sole purpose of making a direct gift of the money raised to a mere private-rail way, in which the tax-payers have no ownership, is unconstitutional.”
    
    In Ohio, the whole question, as it stood under the old constitution, was elaborately discussed by Judge Ranney,. delivering the unanimous opinion of the court in The C. W. and Z. R. R. Co. v. The Commissioners of Clinton County, 1 Ohio St. 78; in which the power to authorize any political division of the state to subscribe stock in a railway company, and levy a tax to pay it, is declared to have been, under the old constitution, “ an undeniable legislative-function.” This decision has since been affirmed by this court in fifteen cases, and never once doubted. Walker v. City of Cincinnati, 21 Ohio St. 43, and cases there cited.
    The power to authorize political divisions of the state to build railroads being within the general grant of legislative power in our present constitution, the law of April 23, 1873, is valid, unless it conflicts with other provisions-of that instrument. There are no provisions with which it is alleged to conflict, except—
    
      (a) Article 12, section 6, which provides that “ the state-shall never contract any debt for purposes of internal improvement;” and article 8, which provides that the state may contract debts to supply casual deficits or failures in the revenues, or to meet expenses not otherwise provided for;, and to repel incursion, suppress insurrection, defend the state in time of war, and to redeem outstanding indebtedness of the state; and that, “ except the debts above specified, no debt whatever shall be created by or on behalf of the state.”
    
    It was argued by Judge Ranney, in his dissenting opinion in Cass v. Dillon, 2 Ohio St. 624, that these clauses prohibit legislation authorizing political divisions of the state to contract debts which the state itself is prohibited contracting. But the court, in that case, held otherwise.
    The same question has arisen in several of the other-states, and in each case the decision has been that suck limitations on the power of the state are not limitations on its political or municipal divisions.
    
      Slack v. R. R. Co. 13 B. Mon. 15; Dubuque v. R. R. Co., 4 Green (Iowa), 1; Clapp v. Cedar Co., 5 Iowa, 15; Clarke v. Janesville, 10 Wis. 136; Brushnell v. Beloit, 10 Wis. 195; Prettyman v. Supervisors, 19 Ill. 406; Robertson v. Rockford, 21 Ill. 451; Johnson v. Stark Co., 24 Ill. 75; Perkins v. Lewis, 24 Ill. 208; Butler v. Dunham, 27 Ill. 474.
    
      (b) It is further alleged that the act in question is in conflict with section 6 of article' 8: “ 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.”
    We remind the court that we are now discussing, the general question of the constitutionality of this law as applicable to counties — not the legality or constitutionality of these proceedings. The law is constitutional if it can be executed without violating that instrument.
    It is not to be construed to direct or permit anything to be done in violation of the constitution if such construction can be avoided. “ If one construction is within and the other without the constitution, that one should be adopted which makes the law stand.” United States v. Coombs, 12 Pet. 76.
    The exact question then is: Can counties build railroads under this law as public works, with public moneys, and lease and sell them under any circumstances, without violating section 6 above quoted?
    The provision of this law for lease or sale of a railroad is valid unless the provision for construction is unconstitutional. For, suppose Ross county to have built her railroad without violating the constitution, she may then sell it to the State of Ohio. Would that be “to raise money for, or loan its credit to, or in aid of any joint-stock company, corporation, or association ?” Or, suppose she complete it, and afterward these petitioners, who have opposed its construction, organize a company and buy or lease it, would such sale or lease by the county be “to raise money for, or loan its credit to, or in aid of” that association? No more than for the county to sell public grounds or buildings to a joint-stock company which took no part in the original investment in them by the county. If, then, a lease or sale of a railroad built under this law might be made without infraction of the constitution, the law can not be held unconstitutional for authorizing a lease or sale. “If a"provision of law be valid or invalid, according to circumstances, a court would be bound to presume that such circumstances exist as would make it valid.” Talbot v. Hudson, 16 Gray, 417.
    Then, is the construction of a railroad, under this law, necessarily a violation of section 6, of article 8? Read the section again: “ 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.”
    Not a clearer or more perspicuous clause can be found in the constitution. There is not an ambiguous, obscure, or repugnant member of it. This court can not extend the clearly marked sense of these words.
    “ Where there is anything doubtful in a statute, it is the duty of a court, in expounding it, to give it such a construction as will comport with what is supposed to have been the intention of the enacting power. But where there is nothing doubtful, nothing ambiguous, no words made use of which operate to defeat the manifest intention of the legislature, there is nothing left for construction.” McCormick v. Alexander, 2 Ohio, 65-74; 4 Ohio St. 383-385; 2 Ohio, 297-299; 3 Ohio, 533-558; 5 Ohio, 494-505; 6 Ohio, 32; 14 Ohio, 207-217; 10 Ohio St. 268-271; 9 Ohio St. 558-562; Bartlett v. Morris, 9 Porter (Ala.) 268, 269; Sedgw. Stat. & Const. Law, 289; 14 Ohio St. 482.
    What was the evil this clause was designed to remedy? Up to the date of the formation of the constitution there had been incurred by political divisions of the state, debts aggregating about three and a third millions of dollars, to secure the construction of railroads, turnpikes, plank-roads, canals, gas-works, water-works, etc.; and about a million and a half of debt, in addition, had been voted, but not actually incurred, for like purposes. The improvements were-almost always built and controlled by private corporations;, and, by bad management or fraud, the public investments-were generally sunk.
    The generally admitted evil was not the multiplication of avenues of commerce, nor even an alarming increase of public indebtedness; for up to that date the debt incurred for these purposes, by all the political divisions of the state-combined, amounted to only about a third of one per cent, of the taxable property of the state. It was the loss resulting from the putting into the hands of private corporations the expenditure of large amounts of public funds, and the control of important public interests.
    Article 8, section 6, of the new constitution stopped that mischief, and in explicit terms divorced public and private funds thenceforth in the construction and ownership of works of internal improvement. It did, and was intended to do no more.
    It is clear that if section 6 prohibits the construction of railroads with public funds and as public works, it also-prohibits such construction of any of the classes of improvements which had, before its adoption, been built with-public and private funds combined. Then gas-works, waterworks, plank-roads, turnpikes, bridges — all fall with railroads. There is no escape from this conclusion.
    Section 4 of article 8 of the constitution contains limitations on the power of the state exactly equivalent to those-imposed by section 6 of the same article on counties.
    “ 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 01 association, in this state or elsewhere, formed for any purpose whatever.”
    The state, under the act of March 24, 1887, had loaned its credit to railroad companies, and had taken stock in tuimpike, canal, and slack-water navigation companies. 1 S. & C. 289, n. The mischief to be cured was the same as to both states and counties. Hence the remedy is not only the same in language, but in intended effect. If the counties, therefore, are prohibited constructing public works, so is the state. But there is an express limitation on the state in section 6, article 12, to wit-: “The state shall never contract any debt for purposes of internal improvement.”' This section is superfluous if the state is totally prohibited by section 4, article 8, from constructing such works. It is-a rule of interpretation that each provision of law shall,, if possible, be so construed that every other provision be given distinct effect; because the presumption is, the legislature will not insert idle repetitions in statutes. This reason is of special force applied to a constitution, every word of which is critically conned and weighed. To give any separate effect whatever to section 6, article 12, we must construe section 4, article 8, not to prohibit the state making, such improvements with public money; and it follows that counties are not prohibited by section 6, article 8.
    It is assumed, as an unquestioned fact, that from 1851,. when the present constitution was adopted, until the recent decision of the Supreme Court in the Southern Railway case, it was understood and conceded that every mode of constructing or aiding the construction of railroads with, public funds was unconstitutional. This is certainly an error. The most that can be said is, that the plan of constructing railroads, as public works, was not considered at. all, or, if considered, not thought practicable during that time. There was, therefore, no legislation to authorizes
    
      such construction of railroads, and consequently no discussion as to its constitutionality. But legislation authorizing the construction of free turnpikes, which plainly involved this very principle, was on the statute books when the constitution was adopted, and has been repeatedly amended, and acted on, and recognized as valid ever since. At least three times more of public moneys have been expended on turnpikes constructed as public works since 1851, than has ever been expended for railroads by all the political subdivisions of the state combined. In 1869, a question was made in the case of Eastman v. Commissioners of Warren County, 17 Ohio St. 559, as to the constitutionality of the free-turnpike laws; and this court unanimously held them to be constitutional in an opinion the reasoning of which is exactly ad rem in this case.
    II. It is alleged that the law of April 23, 1872, is fatally defective in this, — that it confers no authority to condemn right of way.
    Section 8 of the act provides that proceedings for condemnation under it shall be conducted under the act of April 5 [30], 1852. S. & C. 311. This last-named act was repealed by the act “ prescribing the mode of assessment,” etc., passed April 23,1872, being the day the Boesel bill became a law. Laws 1872, p. 96. There are no means of determining, as matter of fact, which law passed first.
    If the Boesel law was passed after the act repealing the condemnation law, though on the same day, then the con-' demnation law was revived pro hac vice; otherwise,, the Boesel law was shorn of an important provision on the very day of its enactment. The court must hold that one law preceded the other, and has no guide to the decision, except the rule that laws must be interpreted “ ut res magis valeat quam pereat." The Boesel law, therefore, must be held to have passed? last, and to have revived the other for its purposes.
    But if there were no provision for condemnation, the «ourt would not enjoin on that ground. The road could probably be built without it; and if it could not, it would be presumed that the legislature would make the law practicable by amendment. In. the Cincinnati case, when the injunction was sought, the city had no power to condemn a foot of ground in Kentucky or Tennessee; yet that fact was not alleged or held to be ground of injunction.
    Counsel upon both sides of the Ross county ease argued very fully the question as to the validity of the proceedings in that county under the act of April 23, 1872, upon the hypothesis that said act was not in conflict with the constitution ; but the decision of the court renders it unnecessary to present the points made upon that branch of the case.
    
      James Murray, for Martin Kantner:
    While it is true, as claimed, that every presumption is to be made in favor of the validity of the act drawn in question, and that the burden of proof is upon the party assailing its constitutionality, which burden is assumed by the plaintiff in these cases, yet it is not true, as claimed, “ that every possible construction is to be given to the act for the purpose of sustaining it.” No rule of law requires such strict construction as would limit the words used in the constitution to their exact and literal signification, as expressed in the instrument itself; nor, on the other hand, is there to be given to them such free or loose construction as would avoid their entire purport and meaning, as therein expressed.
    The true rule, as we understand it, is, that the words used are to be construed according to their natural and obvious sense, taken in connection with the purpose intended to be accomplished.
    
    Sound principles of construction will restrain all courts from carrying the words of the prohibition’beyond the object the provision of the constitution in question is intended to secure, but it will, at the same time, require such a construction as will accomplish that object, if it can be ascertained. Marshall, C. J., in Brown v. Maryland, 12 Wheat. 437; Cooley, sec. 59.
    When the inquiry is directed to ascertaining the mischief designed to be remedied, or the purpose sought to be' accomplished by the particular provision of the constitution, it is proper to examine the proceedings of the convention which framed the instrument. Cooley on Const. Lim., secs. 65, 66. What, then, was the mischief intended' to be remedied or guarded against by sectiou 6, article 8, of the constitution ? We answer : allowing the state, or any of its subdivisions or municipalities, to construct or engage in the construction of railroads or other improvements which were not free to the whole people at will, without let or hindrance, and without price or money, for their use and enjoyment, as well as from extending aid, etc., to any corporation, company, or association who might desire to engage in the construction thereof. Under the constitution of 1802, an innumerable multitude of railroad companies had been incorporated j and, in nearly every case, counties, cities, towns, and townships on the line of the proposed road had been authorized to subscribe stock to the company, and thereby aid in the construction of the road; and in most cases the road was proposed to be constructed, in a great degree, if not wholly, by such subscriptions and aid. The needed aid was extended, the bonds issued sold to bona fide purchasers, and no road built. Counties, cities, towns, and townships had thereby incurred debts amounting to many millions of dollars, and in many cases exceeding their ability to pay. They saw the ease with which legislatures were manipulated for such purposes, and the readiness with which non-taxpaying voters voted to-compel their more unfortunate tax-paying neighbors to make, or at least to issue bonds agreeing to pay for any and every contemplated railroad; they saw that in all public works constructed by the state, or in which it had any interest as a stockholder, there was not one a source of revenue, but all were fountains of corruption — subjects of private peculation and plunder, as well as of its inevitable concomitant, ruinous taxation; they realized full well the infatuation which periodically seizes upon the public mind, and which legislatures seemed unable to withstand — and seeing it all, they determined at one fell swoop to prohibit, by the fundamental law of the land, the possibility of any such thing in the future.
    That such was the intent of those who framed the constitution, is clearly evident from the debate upon the question in the convention. It was therein asserted, over and over again, that the adoption of this prohibitory clause •would forever prevent the state, or any of its subdivisions or municipalities, from constructing or aiding in the construction of railroads; and that it would do so, and was intended to do so, was expressly admitted by the supporters of this clause. Vide speeches of Stanton, Dorsey, Curry, and others, 2 Debates Const. Conv. 305, et sequitur.
    
    We claim that the act entitled an act to authorize counties, cities, incorporated villages, and townships, to build railroads, and to lease and to operate .the same, passed April 23, a. d. 1872 (69 Ohio L. 84), is repugnant to the above-cited prohibitory clause of the constitution of Ohio, and is therefore unconstitutional and void.
    This act is not, as we claim, covered by the decision in the Cincinnati case, nor is it in any of its substantial features like that ease. It purports, by its title, to authorize counties, towns, etc., to build and operate lines of railroad; but v/hen we come to examine the provisions of the body -of the act, we find that it does neither — that it is a mere colorable device whereby to enable them to evade the constitutional prohibition by extending aid to corporations for the purpose of building railroads. The form of an act is of very little consequence. What is it in substance? — what does the act in fact mean? and what is the object therein designed to be accomplished ? Let us examine and see whether the provisions of the act itself would enable a county, etc., to build and operate a railroad.
    1. It does not find, nor does it provide any mode by which it shall be fouud, that the proposed railroad is required by public interest, or will be for public utility, convenience, or welfare. In this connection it may be well to recall the language of this court- in the case of Reeves v. 
      Wood County, 8 Ohio St. 346. Is it claimed that the mere fact of its being a railroad that is proposed to be built will raise a presumption of law.that it is for a public purpose ?‘ "We answer that a railroad company is never in any sense a public corporation, except in so far as the right of eminent domain is concerned. To that extent, and to that extent alone, it is considered as a public corporation. See Whiting v. Sheboygan, etc., R. R. Co., 25 Wis. 181; Angell & Ames on Corporations, sec. 40; Bonaparte v. C. & A. R. R. Co., 1 Bald. C. C. 246; Hanson v. Vernon, 27 Iowa, 48; Bankhead v. Brown, 25 Iowa, 540, and cases there cited; Redfield on Railways, 5, and cases in the note.
    To authorize taxation, the purpose for which the tax is levied must be a public one. Cooley on Const. Lim. 488; Tyson v. School Directors, 51 Penn. St. 9; Morford v. Unger, 8 Iowa, 90; Freeland v. Hastings, 10 Allen, 575.
    We claim, then, that a railroad, not being necessarily of public utility, before taxation can be authorized for the purpose of building it, there must be a finding by the legislature themselves, or in some manner prescribed by them, that it is required by the public interest, and is necessary for the public use, convenience, or welfare.
    2. The act in question does not, in fact, authorize the-building of an entire road, but only of part of a line of road.
    3. The act makes no provision for any deficiency that may exist between the amount authorized to be raised, and the amount necessary for the purpose of building the road-
    4. It makes no provision for operating a road after it is-built.
    5. It contains no legal provision for condemning the right of way.
    6. This act provides for a lease or sale of the road, either before or after its completion.
    In this case, the right to lease or sell is given at any time,, either before or after the completion. What, then, are they to lease or sell before completion ? Is it the franchise ? I find nothing in the act creating a corporation, or granting. any franchise. Is it the right of way ? I find nothing in the act providing for acquiring the right of way. Is it the constructed road? The road can hardly be said to be constructed until it has been completed. But as if to make the farce all the more complete, it is stipulated that if they can not build a whole road, then they may contract with* that bidder who will build the greatest number of miles for the money they have power to raise by taxation. If it be-said that it is intended to give a company the whole sum for building, say, a mile or so of road, and then to lease or sell them the right to the whole, in consideration of their constructing the remainder, I ask if that be not virtually-admitting themselves out of court, by confessing that it is; not the design of the act to have a county, etc., build an entire line of road, much less to operate it, but under cover of having a company or corporation build a fractional part of a road, to furnish them aid, whereby to forward and build and operate the entire road; for if that company build a fraction of a road in each county, town, etc., and get for it all the bonds authorized to be issuéd by each one of therm-then no other company can successfully compete with them in the purchase or lease of the remainder, upon their simple-agreement to build. The county, etc., must lease or sell, or sink the bonds they have already issued; for they have-neither bonds nor money to build any more.
    7. The act makes no provision for suits by or against ‘•he-road, for service of process upon it, or payment of any claims against it.
    It may bé a question whether either of these defects (except the first), taken by itself, would be sufficient to impeach the constitutionality of this act; but taken as a whole,, they are clearly sufficient to show that there was no bona fide intent upon the part of the framers of the act to authorize counties, townships, etc., to build or operate railroads, but that the real purpose was to aid corporations in the building of railroads.
    Again, we assert that the legislature may not authorize-counties or townships to build or operate railroads, or to assume the duties or incur the obligations of common carriers thereon.
    A county or township is not a corporation, but a mere political organization of certain of the territory within the state, particularly defined by geographical limits for the more convenient administration of the laws and police power of the state, and for the convenience of the inhabitants. Such an organization is invested with certain powers delegated to it by the state for purposes of civil administration; and for the same purpose is clothed with many characteristics of a body corporate. Hunter v. Comm’rs, 10 Ohio St. 520; Meadwell v. Comm’rs, 11 Ohio St. 190.
    It is at most but a local organization, which, for purposes of civil administration, is invested with a few functions characteristic of a corporate existence. It is at best but a quasi corporation. Comm’rs v. Mighels, 7 Ohio St. 115; Rock Island v. Steele, 31 Ill. 543; Goodnow v. Comm’rs, 11 Minn. 11; L. & N. R. R. Co. v. County Court, 1 Sneed, 637-687; H. & St. Jo. R. R. Co. v. Marion County, 36 Mo. 294; Reardon v. St. Louis, 36 Mo. 555; Maury County v. St Louis Co., 1 Swan, 236.
    These being then mere political subdivisions of the state, by what right is it claimed to confer upon them the authority to build and operate a railroad?. And as they are simply for purposes of civil administration, by what right .are they to be authorized to undertake to perform the duties, and incur the obligations of common carriers? They can not be sued in their capacity' of quasi corporations. How, then, are they to be held liable?
    We also claim that section 7, article 10, of the constitution of Ohio, in providing that “ the commissioners of counties, the trustees of townships, and similar boards, shall have .such power of local taxation for police purposes as may be prescribed by law,” has limited their power of local taxation to the one purpose therein expressed.
    It is claimed, however, that the construction of common roads, free turnpikes, ditches, drains, etc., which has been sanctioned by this court, is not in either case required for .police purposes. In this, however, we differ with counsel on the other side. As we understand it, everything which is required by, or will be conducive to, public health, convenience, or welfare, and which is for the use and benefit -of all, which is free to all, and which all are at liberty to use at will, subject to such reasonable regulations in regard to its use as may be prescribed by the state, is constructed under the police power. In any event, however,, these free turnpikes, ditches, etc., are made by assessment upon the adjoining property immediately benefited thereby, and not by taxation upon the property of the whole community. Railroads which no man may use except in the modes, at the times, on the vehicles, and upon the terms prescribed by those .operating them — roads which are free to none, and upon whose track, or roadway, not one of its alleged individual owners may assert or exercise a right to travel, except upon the cars furnished by the owners of the road for that express purpose — can be built and operated, if at all, solely by virtue of the power of taxation as it exists under the present constitution of Ohio.
    
    We think we have conclusively shown that no such power exists. If the restriction as to counties and townships of the power of local taxation be absolute, as we think we have shown that it is, then as this is admittedly local taxation for other than police purposes, upon what possible theory can it be sustained ? We can not imagine any; and after a most careful examination of the “ briefs ” on the other side of the question, we are constrained to say that they have not aided us in any degree to answer the query.
    
      Geo. W. Andrews, for the trustees of Duchouquet township:
    Oral arguments having already been made, I submit the following notes and authorities.
    As to the power of the court in the sole question made in this case. It belongs with the powers in the arrangement of our plan of government, known as “ checks and balances,” and is properly defined as the veto power. But while that of the executive may be used at discretion, the judicial veto-ought, not, can not be used, although the statute be shown to be inexpedient, unjust, and profligate, unless it is clearly-unconstitutional. To give reasons why this- power will not be exercised unless a clear invasion of the organic law is-shown, is fully shown by the simple statement that there is no power provided for a change. The rule in all the-states is, that “ a solemn act of the government will not be set aside unless it is plainly and palpably in violation of the constitution.” “ The incompatibility between the statute and the constitution must be clear and palpable.” 2 Pet. 203; 12 Wheat. 270; Carey v. Giles, 9 Geo. 253; Dawson v. Shaver, 1 Blackf. 206; Dyer v. Tuscaloosa Bridge Co., 2 Porter, 203; Carson v. Commonwealth, 1 Marsh. 290;. Hughes v. Hughes, 4 Mont. 43; Tate v. Bell, 4 Yerg. 202; Union Bank v. State, 9 Yerg. 490; Hays v. Harley, 1 Mills’ Const. Ct. 267 (So. Car.); Indiana Turnpike v. Phillips, 2 Penn. 184; Derby Turnpike Co. v. Parks, 10 Conn. 522; Hill v. Sunderland, 3 Vt. 507; Dow v. Norris, 4 N. Hamp. 14; Holden v. James, 11 Mass. 396.
    The authorities and precedents are all to the effect that Supreme Courts will not disturb a legislative enactment, unless it is in plain opposition to the organic law. In what is the act of the 23d of April, 1872, in opposition to-the constitution? It is claimed that it conflicts with section 6, article 8. This section presents “ plain opposition ” to counties, townships, and towns becoming stockholders in railroads owned by joint-stock companies or corporations ; and the fact is almost patent, that the framers of the constitution solely intended to protect the people from the scheming- and peculations of such companies, and not to prohibit them from constructing roads and ways. It will not be denied that the constitution, as well as our legislative enactments that apply, foster the construction of highways and ditches by taxation of all property-holders interested; yet counties, townships, and towns are-forbid being stockholders in township, road, and ditch companies, as well as in railroad companies. If it is said that every tax-payer may freely use the highway that he-aids in constructing, it may be answered that a railroad must be managed by “ common carriers”- and so accessible to all; and the freedom is about the same, for that a fixed rate for payment is established by the common carrier — the railroad; the highway can only be used by the-additional expense to the tax-payers, of vehicles and working animals. To establish this view, I need only cite the decision already made by this court in what is known as-the “ Cincinnati case.”
    It is claimed that section 10 of the act, which authorizes a sale or lease of a railroad after completion, is intended to provide for placing the work in the hands of corporations, and thus evade the provisions of the constitution. The sale or lease is only “ authorized,” and nothing is in the section looking to authority for retaining stock in the-company that makes .the purchase or takes the lease. Though this section could possibly be subject to the objections made, it would not affect the balance of the act; to sustain this position, I presume I need not cite authorities.
    It is maintained that the statute is unreasonable, for the-fact that no means are provided for acquiring the right of way for a railroad; that section 8 directs that proceedings shall be had in accordance with an act which was repealed on the same day. If that act was so repealed, is it not in consonance with good law, to say it was revived by section 8 of the act of April 23, 1872, so far as will be necessary to carry out the provisions of that statute ? .
    But if all that is claimed be true, and the act of April 5, a. D. 1852, “ to provide for the compensation to the-owners of private property appropriated for the use of corporations,” was unconditionally repealed, and no means-by law are provided for obtaining “right of way,’’ where it can not be acquired by purchase, is the validity of the general act affected thereby ? The courts will not set aside a statute of the legislature because it is incomplete in some of its parts, nor yet for reason that it is “ unreasonable and absurd.” Flint River Steamboat Co. v. Fos
      
      ter, 5 Geo. 194; Republica v. Duquet, 2 Yates, 493; Durham v. Lewistown, 4 Greenl. 140.
    This act of April 23, 1872, is, upon the face of it, designed to aid in the improvement and development of the country —results in benefit to all the people. Finding that safeguards are in every section provided, will this court pass by the rule established by all the states — that the law must stand as valid unless plainly unconstitutional ?
    
   White, C. J.

These two cases were argued at the same time, and they have been considered and will be disposed of together, as they both involve the question of the constitutionality of the act of April 23, 1872, to authorize counties, townships, and the municipalities therein named, to build railroads, etc. 69 Ohio L. 84.

It is claimed by the counsel seeking to maintain these proceedings under the act named, that the’question as to its validity has already, in effect, been determined in the case of Walker v. The City of Cincinnati et al., 21 Ohio St. 15.

The act passed upon in that case, is widely different from the one now before us. The latter contains provisions and elements not found in the former. That act authorized a railroad to be built by a municipality, when it was found to be essential to its interest, as one of its public works. It was to be used and operated as other works of a public nature, in which it had a special interest, and which it was authorized to own and operate.

In the case referred to, of Walker v. The City of Cincinnati, the court held that it was competent for the legislature, under the general grant of legislative power, to authorize the entire construction of such a work, by a municipality having a special interest therein, and to empower the local authorities to provide the means’ therefor by taxation. And, further, that a work thus constructed was neither in violation of the express nor the clearly implied prohibitions of article 8, section 6, of the constitution. That the construction of the work in this manner, however unwise it might be, did not involve the union of public and private capital or credit, nor the raising of money by the municipality for, or loaning its credit to, or in aid of other parties, incorporate or otherwise. That this is as true in regard to railroads so constructed, as it is in regard to water-works, gasworks, and other improvements of a similar nature which the municipalities may construct, but which require the employment of skill and labor to make them available for public use.

It is true that in the act passed upon in Walker v. The City, etc., authority is given the trustees as fast as portions of the line of road of which they are trustees, are completed, to rent or lease the right to use and operate such portions upon such terms as they may deem best; but such rights are to' cease and determine on the final completion of the whole line, when the right to use and operate the same is to be leased by them to such person or company as will conform to the terms and conditions which shall be fixed and provided by the council of the city by which the line of road is owned.

This power can not be exercised until after the work is completed, except for the purpose of getting the immediate-use of the finished portion during the time required to complete the entire work. The proprietary interest in the road when completed, is as fully in the municipality as that of any other of its public works. It is the road “ owned” by the municipality that is authorized to be leased. The public use for which the road was built, is to be preserved, and the power of leasing the right to use and operate it, is designed only as a mode of making such use available to the-public. If, under color of this authority, it should be attempted to divert the work from the purposes for which it was authorized, and to subordinate the public to private interests, the attempt would be unwarranted, and the courts-would be open to prevent or redress the wrong.

Every step in the public service requires compensation,, whether it be in discharging the duties of office, or in preserving and keeping in order, so as to be available for-public use, all descriptions of public property. Compensation for services is as necessary as compensation for property.

The constitution does not forbid the employment of corporations, or individuals, associate or otherwise, as agents to perform public services; nor does it prescribe the mode of their compensation. And if it should be deemed wise and economical to authorize municipalities, who own waterworks, or gas-works, to lease them as a means of supplying the public needs, we know of no constitutional impediment.

But this is a different thing from investing public money in the enterprises of others, or from aiding them with money or credit. In one case, the whole proprietary interest is in the public, and its authority is paramount; while in the other, the reverse is true.

Whether or not the act now before us can be justified under the decision referred to, will appear from an examination of the provisions of the act.

Its validity is denied, on the ground that it violates section 6, article 8, of the constitution. That provision is 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 but applying an axiom, to say that what the general assembly is thus prohibited from doing directly, it has no power to do indirectly.

In giving an exposition of this section, in Walker v. The City, etc., it is said in the opinion : “ 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 liability. They can 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.” And it was truly said, the evil would be the same to the public whether the transaction was with a single person, or with several persons associated together.

The first section of the act now in question declares that it shall be lawful for any county to construct a railroad, and to borrow, as a fund for that purpose, a sum not exceeding five per cent, on its taxable property, as two-thirds of the electors of the county, voting at a meeting called for that purpose, shall determine. Section 12 extends the provisions of the act to cities, incorporated villages, and townships:

The following is, substantially, the method or scheme prescribed for accomplishing this object. On presentation of a written request signed by the specified number of taxpaying electors, containing a specification of the termini of the proposed road, the amount to be appropriated toward its construction, and such other conditions and particulars as are not provided for in the act, the commissioners are required to call an election at which the electors are to vote on the proposition contained in the request. If the result of the election should be to approve the proposition, the commissioners are required to issue the bonds of the county for the amount authorized. For the payment of these bonds the credit of the county is pledged. They are to become due in not exceeding twenty years, and are to bear interest not exceeding eight per cent, per annum; and are to be deposited with the treasurer of state for the benefit of the parties interested.

The commissioners are also required, within thirty days after the proposition has been approved at the eleclion, to advertise for proposals for the construction of the work; but the time of letting is not to exceed sixty days. When the time of letting comes, the act requires that the commissioners “ shall enter into contract with the lowest responsible bidder for the whole of said road, or with the party that will agree to build the greatest number of miles of road for the sum appropriated.

The commissioners are invested with no discretion. It is made their imperative duty to enter into the contract: if no one will undertake to build the whole road for the bonds, they must let the work to the party who will agree to take them and build the greatest number of miles. No pro.vision is made for securing the right of way to the county, township, or municipality on which the public money is to be expended. The bonds are only to be used in payment of “ labor performed and material furnished during the previous month, in pursuance of the contract,” except that fifteen- per cent, is authorized to be reserved until the contract is performed.

The contract is to be entered into and the bonds expended without respect to the character of the work, or what it may cost to complete it, or make it of public utility. Whether the public money be much or little, or the work be expensive or otherwise, in all cases alike, the amount is to be expended. What the expenditure may result in, is all the county, township, municipality, gets, upon the hypothesis that it was the intention of the act to authorize these local bodies, respectively, to build a railroad as one of its local public works. It is clear that such could not have been the intention of the legislature, nor can it be the understanding of the voters who act under it.

While a railroad constructed and operated is a public highway of the greatest utility, yet it is of a peculiar nature. It is the means of accomplishing, with greatly increased facility, the results designed to be accomplished by other descriptions of highways. As an agency to serve this purpose, it can not, however, be viewed in the same light as ordinary highways. A railroad can be made subservient to the public, only under conditions entirely different from those of the common highway. It must be in a condition to be operated. A part of a railroad which is not in a condition to be used, can not, while it remains-in such condition, be said to be a highway or to serve any public purpose. To be available as a public way, it must be capable of being operated by motive power and cars,, under the direction of a single management.

But the tenth section is a constituent part of the plan or method provided by the act for accomplishing its objects. That section provides, that the “ county commissioners shall have power, and they are hereby authorized, to lease said road, constructed under the provisions of this act, before or after completion, .... or to sell the same-for such compensation and upon such terms as may be agreed upon by said commissioners and lessee or purchaser.

There is a proviso declaring that no such contract of lease or sale shall be valid until the same is ratified by a. majority of the electors voting at an election called for the purpose. This proviso has no bearing upon the question as to the authority of the legislature to pass the act. Whether valid or invalid, its validity can be neither impaired nor its invalidity aided by those acting under it.

Thus, by section ten, it appears the commissioners, or other public authorities operating under the act, are invested with authority to sell or lease the road either before or after completion. It would be within their power to sell what is called the road at any time; certainly after the making of the contract. Now, in such case, what is sold?' Substantially the right to use the public bonds to construct a work which becomes the property of the purchaser as-fast as it is built. What is to be paid for the right thus sold, is left to the discretion of the local authorities. It may be paid for by completing the work. Indeed, theamendatory act expressly declares that the consideration of the sale or lease may be the construction of the road.

This is, in effect, the same as if the purchaser had projected the road to be built on his own account, and the local authorities had agreed to aid him to the amount of the bonds.

The act contains no provision requiring the road, after the public funds have been expended, to be completed. Nor in case of sale is there any provision requiring it to be maintained and operated. In the absence of such a provision, neither railroad companies, nor others owning railroads, can be required to maintain and operate them. 2 Redfield on Railways, sec. 191; 18 Eng. L. & Eq. 199; 25 Wis. 207.

But if the public money should be expended before the making of the lease or sale, the public authorities are, by the act, put, we might almost say, in complete subordination to the railroad company, or parties owning or controlling the other parts which are to make up the whole road. To everybody else it will be as useless as to the county or township whose money built it. If leased or sold at all, it will necessarily be to the parties or company who control such other parts. The local authorities, under the act, have no alternative but to let the work perish in its incomplete state, or lease or sell it on such terms as the parties named are willing to accept.

If a line of road is projected through several townships or counties, no concert of action is contemplated. The leasing or selling of the part which may be constructed by the funds of one locality, is wholly independent of the action of the other localities. The company that gets one link in the line, can control or defeat the whole.

The transaction which the statute authorizes, begins with a railroad projected in the name of one of the localities mentioned, to be built in part by taxation, and ends with a debt on the locality for its construction, and, if anything useful has been accomplished, with the road being substantially owned by a railroad company, to be operated or not, or disposed of as such company may find most for its interest.

This is accomplishing by indirection what it would be a plain violation of an express provision of the constitution to do directly.

Where public credit or money is furnished, to be used in part construction of a work, which, under the statute authorizing its construction, must be completed, if completed at all, by other parties out of their own means, who are to own or have the beneficial control and management of the work when completed, the public money or credit thus used, can only be regarded, within the meaning of the constitutional provision in question, as furnished for, or in aid of such parties.

The extent of such aid can make no difference. The mandate of the constitution is, that such aids shall never be authorized. Whatever is furnished must be exacted by taxation; and whether the amount be large or small, to recognize the authority under which it is sought to be imposed, would be to deny the protection guarantied by the constitution to every tax-payer.

Nor will it do to say that the public money may be expended, and the road be neither leased nor sold. Taxes can be levied only for public purposes. The mere expenditure of the amount of public money authorized to be raised in building so much of a railroad as-could be built for that sum, without any authority to complete it or use it, could serve no public purpose.

Nor is this the case contended for in argument, of an act which is susceptible of two constructions, one of which would make it constitutional and the other not. We find this act capable of no other rational construction than the one we have given it.

Neither can we assent to the proposition that, although the act may authorize the accomplishing of an unconstitutional purpose, that it must, nevertheless, be presumed that it will, in fact, only be used to accomplish what can be done in accordance with the constitution.

The authority which it confers, clearly includes the unconstitutional purpose of aiding with the public credit, railroad companies and others engaged in the business of building and operating railroads. If there are lawful purposes to which the credit might be applied, the act gives no means to the officers in whom the authority is vested, of discriminating between what is lawful and what is not. This unconstitutional element vitiates the whole authority.

It is not the case of a separate and independent unconstitutional provision in a statute which may be rejected, and yet the rest of the act be allowed to stand and have effect according to the legislative intention. On the contrary, the unconstitutional element constitutes an inherent and essential part of the authority conferred.

Private property, except when taken for public purposes, or by legitimate taxation, is as inviolable as personal liberty. If an act of the legislature should authorize a magistrate, for such cause as he might see proper, to order the arrest and imprisonment of a citizen, the act could not be upheld on the ground that it was to be presumed the magistrate would exercise the authority only for legal and constitutional causes of arrest. The authority in the case supposed would be entire, and the act wholly void. The principle is the same in regard to the act now under consideration.

The tenth section, in which the authority to sell or lease is found, can not be disregarded in determining the validity of the act; for without that'section it can not be presumed the act would have either been passed by the legislature or acted on by the people. The section constitutes a necessary part of the plan or scheme for accomplishing the objects intended by the act. Monroe et al. v. Collins, 17 Ohio St. 666, 684.

The court are unanimous in the opinion that the act is in conflict with section 6, article 8, of the constitution, and therefore void.

It may be that, without the aid of this law, projects may fail, which could, under it, have been prosecuted to successful and useful results. But this consideration can have no influence in a judicial tribunal invested with the high trust of seeing, in the administration of justice, that the cónstitution suffers no detriment, from whatever quarter or in whatever shape the threatened invasion comes.

It has not been found necessary to pass upon the other grounds of objection made to the act.

In the case of Kantner v. The Trustees, etc., the judgment of the court below will be reversed; and a perpetual injunction is ordered by this court in each case.  