
    James Griffith et al. v. The Commissioners of Crawford County and the Ohio and Indiana Railroad Company.
    Pending a suit in the common pleas, this court has no constitutional jurisdicdiction of a motion to dissolve an injunction therein.
    A special legislative enactment will not confer jurisdiction upon this court to prevent the operation of an injunction allowed by the common pleas, in a case of which that court has taken jurisdiction.
    
      Obiter dictum by Judge Spalding alone:
    
    That the legislature has no constitutional power to authorize the majority of citizens in a county to vote a subscription of stock to a railroad company, that shall be binding on the property of the minority.
    
      This is a motion to dissolve an injunction reserved in the county of Crawford.
    The complainants filed their bill in the court of common pleas of said county, representing that they are citizens and tax-payers therein; that at the annual election, held in October, 1848, the question of authorizing the commissioners of said county to subscribe $100,000 to the capital stock of the Ohio and Pennsylvania Railroad Company was submitted to the legal voters of said county, under the provisions of an act of the general assembly of the State of Ohio, ^passed February 26, 1846 (44 Ohio L. L. 192), and a majority of the votes cast on said question was in favor of such subscription; that said Ohio and Pennsylvania Railroad was not located through said Crawford county, or to the town of Bucyrus, and consequently the commissioners of said county refused to subscribe stock thereto; that on the 20th day of March, 1850, the Ohio and Indiana Railroad Company was incorporated by an act of the general assembly of Ohio (48 L. L. 297), and that afterward, on'the 23d day of March, 1850, the same general assembly passed an act authorizing and requiring the county commissioners of said Crawford county to change the subscription of stock authorized to be made to the “ Ohio and Pennsylvania Railroad Company,” and subscribe the same to the capital stock of any company which was then, or thereafter might be, incorporated to construct a railroad commencing or terminating at any point in, or jtassing through or adjoining the town of Bucyrus, the county-seat of said county (48 L. L. 277) ; that pursuant to the provisions of this last-mentioned act, the county commissioners did subscribe $100,000 to the capital stock of said “ Ohio and Indiana Railroad Company;” that said commissioners issued the bonds of said county for $10,000, and delivered the same to said company, and that said bonds are now in the possession and under control of said company; that the balance of said bonds have not yet been issued by said commissioners, but that the officers of said company are importuning them for the same; that said subscription was contrary to law, etc.
    The prayer of the bill is, that the company may be restrained from selling, or in any manner disposing of said bonds; and that the commissioners be enjoined from issuing additional bonds, as well as from levying a tax for the payment of those already issued, and for general relief.
    On November 6,1850, an injunction was allowed by the president judge of said court of common pleas, which has continued in force until the present time.
    *On March 24, 1851, the general assembly of the State of Ohio enacted, that in any cause in equity, pending in the counties of Wyandot and Crawford, wherein an injunction has been allowed by the court of common pleas, or the president judge thereof, the party against whom such injunction has been allowed, “ may file a motion in the Supreme Court of the county in which such cause is pending, or in the Supreme Court in bank, with copies of the papers in the cause in the common pleas; and the Supreme Court in the county, or the court in bank, shall have competent power and jurisdiction to hear and determine said motion; and such determination shall be duly certified back to the common pleas, by the clerk of the Supreme Court or the court in bank, as the case may be.” 49 Local L. 321.
    Under this act, the motion to dissolve the injunction in this case, was filed in the Supremo Court for Crawford county, at its last term, and was reserved for the opinion of all the judges here.
    It is objected by complainants below:
    1. That the question, as to the dissolution of the injunction, is not properly in this court for its decision.
    2. That the act authorizing the county of Crawford to subscribe to the capital stock of the railroad in question, is void; for the reason, that it is in violation of the great and essential principles of liberty and free government, as recognized and established by the “ bill of rights.”
    C. K. Watson, O. Bowen, and W. H. Gibson, for complainants.
    0. Bowen claimed:
    1. That the following authorities warrant the intervention of chancery in all cases of this description : Mohawk & H. R. Railroad v. Archer, 6 Paige, 88; Oakley v. Trustees of Williamsburg, Ib. 164; Gardner v. Trustees of Newburg, 2 Johns. Ch. 162; Belknap v. Belknap, Ib. 463; Cooper et al. v. Alden, Harrington’s Ch. 72 ; Bonaparte v. The *Camden and Amboy Railroad Co., Bald. C. C. 205; Corning et al. v. Lawrence, 6 Johns. Ch. 440; Livingston v. Livingston, Ib. 497; Shand v. Aberdeen Canal Co., 2 Dow. 519; Bradley v. Comm’rs, 2 Humph. 428. See, as to this case, U. S. Eq. Dig. 67, art. 122.
    2. It is claimed, that the bills are multifarious.
    All of those who sue have a common interest to avoid the imposition of the proposed tax upon them. Story’s Eq. Pl., sec. 112; Mitford’s Pl. 408; Cooper v. Alden, Har. Ch.; Corning v. Lawrence, 6 Johns. Ch.; 4 Cow. 682; 2 Sim. & Stu. Ch.
    Under the act of February 28, 1846 (44 Gen. Laws, 82), and the act of March 23, 1850 (48 Local Laws, 277), a vote of the people was required before a subscription could be made, or even “ changed.” Smith’s Com. 879 ; Rex v. Lexdale et al., 1 Burr. 447; Church v. Cook, 2 Mass. 21.
    C. 31. Watson maintained that the case is not properly in this court for decision. This court acquired no jurisdiction by virtue of the act of March 24, 1851. Const. of Ohio, of 1802, art. 3, sec. 1; sec. 2, same art.
    To what class of cases does this motion belong ? Does it confer original jurisdiction? We think not. The court-of common pleas took original jurisdiction by bill, and two courts can not hold original jurisdiction of the same subject-matter. Is such jurisdiction appellate? We think not. It is an appeal from nothing in the common pleas. The motion in the Supreme Court vacates no order or decree in the common pleas. The acts authorizing the county of Crawford to subscribe to the capital stock of the railroad in question, are void, for the reason that they are in violation of the general, great, and essential principles of liberty and free government, recognized and established by the bill of rights.
    The right of acquiring, possessing, and protecting property and holding it inviolate, subservient only to the public welfare, on payment of compensation in money, is expressly secured. It follows that the grant of legislative power in the Constitution *of Ohio, must be in harmony with the great principles and objects of free government. The bill of rights thus becomes the basis on which the general assembly is authorized to exercise legislative power. To determine the extent of the legislative authority under our constitution, we are not confined to the letter of the constitution, but we may properly look to its declared principles and objects ; and a statute violating these, is as clearly void as one violating the letter of the constitution. Take, for example, the oft-repeated illustration of a law making a man a judge in his own case; such a law would contravene a declared principle only of our state government. The declaration of principles in our bill of rights, “that all men are born equally free and independent, and have certain natural, inherent, and inalienable rights, among which are the enjoying and defending life and liberty.—acquiring, possessing, and protecting property—and pursuing and obtaining happiness and safety,” would be subverted, so far. as it secures equality of right among citizens. It would not be true that two citizens enjoyed equal freedom, if one had power under the law to judge and determine their disputed rights. According to this declared principle, each citizen has an equal right with his fellows to have his claims submitted to an impartial tribunal; and any statutory violation of that right, would be void, for want of power in the general assembly to pass it.
    This is by no means a new rule of construction, as applied to constitutional law. It is distinctly recognized by Judge Brooke, in his dissenting opinion, in Godden v. Crump, 8 Leigh, 150; Rice v. Foster, 4 Harrington, 485; Parker v. The Commonwealth, 6 Barr, 507; Lexington v. McQuellin’s Heirs, 9 Dana, 513; Sutton’s Heirs v. The City of Louisville, 5 Dana, 28; The People v. Brooklyn, 6 Barb. (N. Y.) 215.
    We must be pardoned for our inability to see how a railroad in the hands of a private corporation, becomes a public improvement, calling into requisition the right of eminent domain and.*the power of taxation. It certainly seems to us like an entirely private affair, with nothing public about it.
    But to bring the cases in controversy within the range of proper constitutional taxation, they must be shown to present a case of equality of burden throughout the community.. Is this shown? The subscription, authorized in these cases, is by counties, towns, and townships; and to be valid, should be by the state. Bank U. S. v. Planters’ Bank of Ga., 9 Wheat. 907.
    The acts authorizing the subscription to the stock of railroads, in the county of Crawford, are void, because they delegate legislative powers to the county.
    The cases of the City of Bridgeport v. The Housatonic Railroad, 15. Conn.; Godden v. Crump, 8 Leigh; Nichol v. The Mayor of Nashville, 9 Humph.; and Talbot v. Dent, are particularly relied upon as authories to sustain these statutes.
    In reply to these cases, we say that they can not be relied upon by this court as binding authorities. They all relate to subscriptions made in pursuance of corporate powers confined to cities. The distinction between the legal powers of cities and those of counties and townships, is broad and unmistakable. Ang. & Ames on Corp. 10, 16; Dowat’s Civ. L. 457. The commissioners have legislative discretion in making selections of projects. A. fund is placed in their hands to purchase an improvement for the town of Bucyrus, at the expense of -the county.
    Henry Stanbery, M. Birchard,, and T.. W. Bartley, for respondents.
    Henry Stanbery, for respondents:
    I. As to jurisdiction to hear these motions'—special act of March 24, 1851. 49 Local L. 321. The terms original or appellate, cover all jurisdiction.
    *In this case the jurisdiction is original. It is to try and determine an original motion filed in Supreme Court upon copies of the papers, and to certify decision to common pleas.
    No question can bo made of the power to confer a special jurisdiction on Supreme Court—power often exercised, as in Hampson v. State; Seely v. State; tax appeals from decisions of auditor and attorney-general to court in bank.
    The decision on the motion binds the common pleas, and the cases then proceed in common pleas to final decree.
    II. We make objections :
    1. That the bill is multifarious. Armstrong v. Treasurer of Athens County, 10 Ohio, 235.
    2. That it does not make a case for the interference of a court of equity.
    The relief asked is to enjoin the levy of a tax upon all the taxable property of the county. The plaintiffs show.no special interest in tho subject—none that is not common to the whole body of tax-payers in the county.
    Tax is contingent—the injury contingent and slight.
    
    Bills are premature. Should wait until proceedings are had for .a sale.
    
    Remedy at law ample. McCoy v. Corporation of Chillicothe, 3 Ohio, 378; Le Roy v. Corporation of New York, 4 Johns. Ch. 352.
    The extreme cases—for equity jurisdiction against tax—are Osborn v. Bank U. S., 9 Wheat. 738; Burnet v. Cincinnati, 3 Ohio, 73; Culbertson v. Cincinnati, 16 Ohio, 577. All cases of irreparable injury, or affecting title to land.
    III. It is objected that the subscription was made without a popuular vote. None was required under the act of March 23, 1850. 48 Local L. 277. The first section of this act is:
    
      “ That the commissioners of Crawford county be and they are hereby authorized and required to change the subscription, heretofore authorized by a vote of the people of Crawford county to be made to the Ohio and Pennsylvania Bailroad, and to subscribe to
    the capital stock of any company or companies *which are now, or may hereafter be, incorporated to construct a railroad, commencing or terminating at any point in, or passing through or adjoining the town of Bucyrus, the county-seat of said county, the sum of $100,000.”
    It is said that this special act must be construed in connection with the general law passed February 28, 1846, which provides, that when county commissioners shall thereafter be authorized to subscribe to the capital stock of railroads, a popular vote shall be taken before the subscription is made.
    "We answer to this :
    1. That this special law is not simply a law to authorize a subscription, but to change a subscription heretofore authorized by a popular vote; and it does something more than merely authorize that, for it requires the act to be done.
    2. That the construction contended for would render the special act useless.
    It is claimed that the acts authorizing these subscriptions are void, because such subscriptions are not within the corporate purposes of a county. County purposes now embrace a great field of the usual subjects of legislation. The support of the po’or, the care of the insane, the subject of education, the public buildings, the subject of roads and highways—these are all legitimate county purposes.
    As incident to these corporate purposes, and to carry them out, a board of commissioners is provided for each county, representing the corporate body, with power to contract, to sue and be sued, and, within certain limits, to levy taxes. Hitherto the general assembly has been acknowledged as the proper authority to create and define the corporate purposes of a county.
    No one can question the power of the legislature to authorize a county to make a railroad, as well as a plank-road; but it is argued that the legislature can not authorize a county to aid an incorporated company in constructing the road. What is this but denying to the legislature the choice of means to carry out a lawful purpose ? If it be admitted that the construction *of railroads in a county is a legitimate county purpose, then, whether the authority is given to the county to construct the road entirely with its own funds, or to lend its funds to others in aid of its construction, can, in a constitutional point of view, make no difference. When it comes to that—a mere question of the mode by which a legitimate power is to be carried out—it ceases to be a judicial question, unless, indeed, there were a constitutional prohibition of the means used. Here there is nothing of the kind. The legislature are left at large—free from any restraint as to the particular mode by which the roads and highways in a county are to be constructed.
    It is said that county funds are public funds, and that they can not be used in matters of private concern. But is a railroad a mere private concern ? It may belong to individuals, so far as its management and profits are concerned, but it is essentially a public thing; and it is precisely on that ground, and no other, that a railroad company can appropriate private property for its track.. It is a public use.
    When this point was under discussion in the opening argument, a significant question was put from the bench. It was asked, whether the legislature could authorize a county to subscribe to a cotton factory within the county? The question, with due submission, is not to the point. The manufacture of cotton is not a public use, like a road. It is altogether a matter of private enterprise. But perhaps the question is best answered by putting another—and that is, can a cotton factory appropriate private property for the site of its works ? A question easily answered. Private property can not be taken for a cotton factory, nor can public property; but either may well be appropriated to a railroad, just because that is a public use—whether made by the public or-by an incorporated company.
    Our statutes are full of precedents in favor of this sort of legislation. One signal instance occurs to me in relation to the surplus revenue received from the United States. That was distributed by the state among the counties, by way of loan at ^interest, with authority to the counties to loan their proportion to any incorporated railroad or canal company, whose road or canal was-“within the county, or connected with it.” The property of the county was made subject to taxation, to secure the payment of the interest and the final payment of the principal.
    Not a decision has been found that sustains this objection.
    
      Godden v. Crump, 8 Leigh, 120; Bridgeport v. Housatonic Railroad, 15 Conn. 475; Nicol v. Nashville, 9 Humph. 252; Talbot v. Dent, 9 B. Mon. 526; Chesney v. Hooser, Ib. 330; Thompson v. Leland, 24 Wend. 65.
    M. Birchard, for respondents:
    I. The facts make no ease for chancery. 3 Ohio, 378 ; 16 Ohio, 577 ; 4 Johns. Ch. 352 ; 9 Johns. Ch. 738; 1 A. K. Marsh, 412, 555.
    II. The laws in question are constitutional.
    1. The power of assessing taxes by law, authorizing general and local taxation, is a necessary ingredient of government.
    2. It is a power to be exercised by the general assembly, subject to no control by the judiciary.
    3. The defining of the powers of counties is exclusively a matter ■of legislative jurisdiction.
    4. In construing the state and United States constitutions, this distinction is to be observed: By the first, all legislative power is vested which pertains to a sovereign state, and is not limited by the constitution of the state or United States. By the latter, only delegated powers may be exercised.
    5. Before a court is authorized to declare a law unconstitutional, it must be able to point directly to the clause of the constitution with which it conflicts, and it can not declare a law void upon any theoretical notion of a conflict with what the judges may suppose are elementary principles of government.
    6. The authority to subscribe stock, on condition that a majority
    *of a county vote for subscription, is not a delegation of the legislative power.
    7. It is not a taking of private property for public use, within the meaning of article 8, section 4, of the old constitution.
    8. The fact that a way may be authorized to be constructed by an incorporated company, in no sense affects its character as a public road demanded by the public wefare, and can not affect the -question of the'power to exercise the right of eminent domain.
    To sustain these positions, we cite—
    Rutherford’s Inst. 272 ; Calden v. Bull, 3 Dall. 400 ; Marsh. on Const. 521, 181, 409; McCulloch v. Maryland, 4 Wheat. 436; P. Bank v. Billings et al., 4 Pet. 565 ; Thomas v. Leland, 24 Wend. 69; 25 Wend. 282; 15 Conn. 496; Bennett v. Boggs, 1 Bald, 76; 9 B. Mon. 335, 520; 9 Dana, 521; Godden v. Crump, 8 Leigh, 154; People v. Wren, 4 Scam. 269 ; Same v. Reynolds, 5 Gilman, 15; 19 Ohio, 197, 418; 18 Ohio, 513; 3 Ohio, 378; 16 Ohio, 579; 4 Johns. Ch. 352; 9 Wheat. 738 ; 1 A. K. Marsh, 412, 555; 7 Ohio, 112, pt. 2; 11 Ohio, 393; 6 Ohio, 488; 4 Har. 495; 6 Barr ; 8 Barr; Nicol et al. v. Mayor of Nashville, 9 Humph, 252; 8, 10 and 11 Barr; Norwich v. Co. Comm’rs, 13 Pick. 60 ; Sawyer v. City of Alton, 3 Scam. 127; Vanderbilt v. Adams, 7 Cow. 349; Trustees of Paris v. Berry, 2 J. J. Marsh. 483; 3 Harr. 355; Aurora v. United States, 7 Cranch, 382; 3 Kent, 278; West. Law Jour. 1849-50, p. 218.
   Spalding, J.

The motion in this case has been considered in connection with one of a similar character reserved in the county of Wyandot, in the absence of the chief judge, who was called! home by reason of sickness in his family.

The decision is made by the three remaining members of the court, who are all clearly of the opinion that the motion to dissolve the injunction, allowed in the common pleas, is irregularly ^before this court, and that the same should be dismissed for want of jurisdiction.

The constitution of Ohio, in force at the time of the special enactment of March 24, 1851, provides, that the Supreme Court shall have original and appellate jurisdiction, both in common law and chancery, in such cases as shall be directed by law ; that the court of common pleas shall have common law and chancery jurisdiction in all such cases as shall be directed by law.

Section 1 of the act directing the mode of proceeding in chancery provides, that the court of common pleas shall have jurisdiction in all cases properly cognizable by a court of chancery, in which plain, adequate, and complete remedy can not be had at law.

Section 2 provides, that the Supreme Court shall have con-* current jurisdiction with the courts of common pleas, in all cases properly cognizable by a court of chancery, where the title to, or any contract in relation to land is in question, or the sum or matter in dispute exceeds one thousand dollars in value ; and appellate jurisdiction in all cases regularly brought before them from the chancery decisions of the court of common pleas.

Section 50 provides, that the Supreme Court, or any judge thereof, and the court of common pleas, or any president judge thereof, may allow injunctions in all cases, where it is usual for courts of equity to interfere by injunction, on petition filed, showing good cause in equity for such injunction, and verified by affidavit.

The bill in the case was regularly filed in the court, of common pleas of Crawford county; which court had undoubted jurisdiction, under our constitution and laws. That court, or the presi. dent judge thereof, allowed an injunction, “ on petition filed, show-! ing good cause in equity, and verified by affidavit.” The cause is still pending there, awaiting a trial upon its merits.

The common pleas having obtained jurisdiction, it follows, as a *necessary consequence, that the only jurisdiction which this court can take of the cause, under the constitution, is by appeal. Our original jurisdiction (if the amount involved is sufficient to give the two courts current jurisdiction) is gone, by reason of the complainantshaving elected to file their bill in the common pleas. The fifty-second section of the practice act provides, that any person may appeal to the Supreme Court for any final sentence or decree pronounced in any suit in chancery, in the court of common pleas, on giving notice, etc. The time, therefore, has not arrived for the exercise of our appellate jurisdiction in this case. We can not, and will not, interfere with the constitutional powers of the common pleas, which are, in their own proper sphere, as sacred as those that appertain to this tribunal. If, however, we may rightfully take cognizance of this motion, we are at a loss to see what possible good can result from it. Upon the supposition that we allow the motion to prevail for the dissolution of the injunction, there is nothing to prevent the court of common pleas from making another, and repeated orders, enjoining the party, so long as they have possession of the cause. The most casual observer will see that this would end in a clashing of jurisdiction, that would be simply ridiculous; and this might be the least of its evil consequences. We think the legislature improvidently passed the act allowing this motion to be filed in the Supreme Court while the cause was yet depending in the common pleas, and that they have failed to give to this court that sort of jurisdiction which is recognized and required by the constitution. The motion will therefore be dismissed, with costs.

In making known this determination of the court, I claim the right to say, that no one can regret more than myself that the case was not presented in such a shape as to enable us to decide the second point made by complainants’ counsel. Without committing this court, or any member thereof other than myself, to any particular construction of that sort of legislation which enables a majority in a county to vote the property of the minority into a joint-stock company, I can not forbear the ^remark, that it seems to me, not only a violation of the essential principles of liberty and free government, but in direct derogation of section 4, articles, of the late constitution of Ohio: “Privateproperty ought and shall over be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.” It is an important matter to know whether the security of the citizen and the safety of his property rest in the discretion of the legislature, or in the guaranty of the constitution.

Much of the curious speculation afloat, in regard to the absolutism of legislative power in these American states, is drawn from the notions formerly entertained of the British parliament. According to Lord Coke, “the power and jurisdiction of parliament is so transcendent and absolute, that it can not be confined, either for causes or persons, within any bounds. Of this high court,” he adds, “it may be truly said, si gntiquitatem species, est vetustissima; si dignitatem est honoratissima; si jurisdictionem, est capctcissima.” This is very far from being the case with our state legislatures. Wo all ought to know and feel, that in this country there is no absolute sovereignty except that which resides with the body of the people.

Legislative bodies are, at best, nothing more than limited agencies, constituted by the peoj)le for their own convenience, in carrying on the necessary functions of civil government. They have a right to tax the people for the ordinary expenses of the government. They havo a right, under the constitution, to take private property for public use, by paying a compensation in money to the owner. But they have no right to say themselves, much less to give to one class of the people the right to say, that another class shall be taxed on their property to support stage, steamboat, or railroad transportation.

It need not be denied that railroads are, in many instances, public improvements of great usefulness. But because they accommodate individuals and advance the public interest, it will not do to say that they are such a public use that private *property may be taken, without the consent of the owner, to construct them. If an incidental benefit, resulting to the community from the manner in which individuals, in pursuit of their own interestr use their property, will constitute a public use of it, it will be found extremely difficult to set bounds to the power of appropriating private property. As it is only on the plea that railroads are public highways—in other words, “a public use”—that the right is claimed to legislate a man’s money from his pocket "to make them,, whether he desire or not to take part in the work*

I have no uncommon sympathy for that class of our population who will suffer most by this internal improvement piracy ; but if the rights of minorities are not observed, it will not be long before the majorities will be in bondage. I look upon this thing of taking private property, or subjecting it to unusual burdens without the consent of the owner^as a great stride toward despotic power. The people of a county, by the vote of a majority, have no more right, under legislative sanction, to say that a single unwilling citizen shall mortgage his farm to build a railroad through their district, than they have to say he shall help support a line of stages running through the same territory.

It will not do to talk about the:, discretion of the legislature in this matter. The framers of our constitution took care to insert a clause, at the close of the last article, which is pregnant with meaning: To guard against the trangression of the high powers which we have delegated, we declare that all powers not hereby delegated remain with the people.” Amongst the most important of those powers remaining with the people, is, in my.apprehension,, the right of every citizen to manage his own private property in his own private way.

Motion dismissed for want of jurisdiction.

Hitchcock, C. J., prepared an opinion dissenting from some of the principles maintained above, for which see Appendix A.  