
    Alter v. City of Cincinnati et al., and Ampt v. City of Cincinnati et al.
    
      Mtmcipal corporation — Powers of —Cannot own or unite property with that of individual or corporation — Water rent and water works acts of April 1896 — Invalidity of section 8 of latter act — Constitutional law.
    
    1. Under section six of article eight of the constitution, a city is prohibited from raising- money for, or loaning its credit to, or in aid of, any company, corporation, or association ; and thereby a city is prohibited from owning part of a property which is owned in part by another, so that the parts owned by both, when taken together, constitute but one property.
    2. A city must be the sole proprietor of property in which it invests its public funds, and it cannot unite its property with the property of individuals or corporations, so that when united, both together form one property.
    3. Section eight of the act of April 24, 1896, entitled “An act to provide for water-works purposes in cities of the first grade of the first class, ’ ’ 92 O. L., 606, is unconstitutional, being in conflict with section six of article eight of the constitution. The remainder of the act, not depending upon said section eight, is a valid statute.
    4. The act of April 24, 1896, entitled “An act to prescribe the purposes for which water rents may be assessed and collected in cities of the first grade of the first class, ” 92 O. L., 605, is a valid statute.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Hamilton county.
    The petitions in these cases were filed on the same day in the court of common pleas of Hamilton county. Mr. Alter, a taxpayer, brought his action to test the constitutionality of the act of April 24, 1896, entitled “An act to provide for water-works purposes in cities of the first grade of the first class,” 92 Ohio Laws, 606. Mr. Ampt, also a taxpayer, brought his action to test the constitutionality of the same act, and also to test the constitutionality of the act passed the same day, entitled “An act to prescribe the purposes for which water rents may be assessed and collected in cities of the first grade of the first class,” 92 Ohio Laws, 605; and he claimed in his petition that both acts should be read together as one act. In the proceedings the first named act is known as the water-works act, and the second as the water rent act.
    The court of common pleas held the water-works act to be unconstitutional, and the city took an appeal to the circuit court, and held the water rent act to be constitutional, and Mr. Ampt appealed.
    The circuit court held both acts to be constitutional, and thereupon petitions in error were filed in this court, seeking to reverse the judgments of the circuit court.
    
      W. M. & F. O. Ampt; Theodore Horstma/n and O. B. Matthews, for plaintiffs in error.
    Brief of W. M. c& O. F. Ampt.
    
    The water-works law is peculiar in the fact that in terms and words it does not direct the water works commissioners to build new works — all mandatory words and phrases are studiously omitted, indeed, suspiciously omitted, by the drafter of the act, who evidently intended to obviate the tendency of courts to condemn mandatory legislation in local affairs. Lessee v. Black-man, 8 Ohio, 19; Sefford v. Beaty, 12 Ohio St., 194; Bouvier, Title “May;” 14 Am. and Eng. Enc., 979; Pope v. Pollock, O. G. C., 347; Campbells. McCormick, 1 O. O. 0., 509, 510; Schuyler Co. v. Mercer Co., 5 Cowen, 24.
    We claim that the water-works law is mandatory as against Cincinnati in compelling it to bear a burden which it may not wish to assume at the present time, and we rely upon the recent decisions of this court in road cases — ordering by law roads to be built in remote townships without consulting local auhorities. State v. Comissioners (Paddock road case), 54 Ohio St., 333; Hixson v. Bur son, 54 Ohio St., 470; Bailey v. Mayor, 3 Hill, N. Y., 531.
    The right of local self government is violated by the water-works law for the additional reason that a debt may be imposed upon the' city of Cincinnati to the extent of $6,500,000 without the consent of the city, its council or its citizens, and even without consultation with them or any of them. Cooley’s Con. Him., 6th ed., 47, P. IV, 207, 281, P. Ill, and notes, 288, Dillon’s-M. C., section 72, 3d ed-; People v. Hthrburt, 24 Mich., 44, 87, 97; People v. Detroit, 28 Mich, 228; People v. Solomon, 51 111., 37, 58; People v. Mayor, 51 111., 17; People v. Batchelder, 53 N. Y., 128. Also, 53 Illinois, 302, Affd.; 59Illinois, 155; 53 Illinois, 33; 55 Illinois, 133; 57 Illinois, 145; 61 Illinois, 218; 77 Illinois, 505; 84 Illinois, 461; 31 Vermont, 226. The Ohio" eases are not against this view. State v. Smith, 44 Ohio St., 349.
    We claim section 8 is void because mandatory and administrative, and in the following particulars:
    
      (1) As requiring an “entirety” contract.
    (2) As requiring lease to be taken by the city from the construction company.
    (3) As requiring the commissioners in this lease to fix terms, conditions and price of purchase.
    (4) As requiring an exclusive right to be given to the construction company to connect the new works with the city’s old works, or such portion of the old works as may be retained for water-works purposes, thus also tending- to create a monopoly» We claim that section 8 is also void.
    (5) As providing a rule for bidding on public work which is at variance with the general law on the subject, thus making a law which should be general lack uniform operation throughout the state, and which in its operation discriminates against our citizens.
    (6) And further void as enabling a municipality to use its credit and property in aid of a constructing company. Taylor v. Commissioners, 23 Ohio St. 22; Zanesville v. Crossland, 8 O. C. C., 625; Riverside, Ó. O. C., 12;- Wysearver v. AtMnson, 37 Ohio St., 80; Quinoy v. Bull, 106 111., 337; Brady v. Bayonne, 30 Atl., 968.
    In word, this water rent law permits the collection of water rents from such occupants in the first place in a sufficient amount to pay a proper price for water, and secondly, an additional amount to pay the cost of building either new works absolutely, or '“a material enlargement, ' extension, improvement or addition to the existing works.” The rate is to be assessed “upon all tenements and premises supplied with water,” the B. of A. to fix an equitable rate of aportionment, and this may be according to the amount of water consumed, or likely to be consumecl, or according to the size or value of the house. Whether the owner or the occupant is the one to pay the rent, it is none the less a tax, being payment exacted by the city for the public service it renders in forcing the water through its water pipes, and thus delivering it into the house and comes, within the rule laid down by Cooley Con. Lim. 6th ed., 611; Falke Case, 42 Ohio St., 638; Rosche Bros. Case, 50 Ohio St., 103; Steinkamp Case, 54 Ohio St., 284.
    Brief of Theodore Ilorstmcm, attorney for Franklin Alter, plaintiff in error.
    By reason of section 6, article 8, of the consittution, there are five things which a county, city, town or township cannot be empowered to do, namely:
    (1) It cannot 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 money 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.
    This section of the constitution is very learnedly discussed in Taylor v. Commissioners of Boss County, 23 Ohio St., 22; State exrelv. The Judges, 21 Ohio St., 1; Walker v. Cincinnati, 21 Ohio St., 76.
    Municipal corporations possess a double character; one governmental, or public; the other proprietary, or private. 1 Dil. Mun. Corp., section 66; People ex rel. v. Common Council of Detroit, 28 Mich., 228; State v. Commissioners Perry County,. 5 Ohio St., 497; Western College v. City of Cleveland, 12 Ohio St., 377, approved in 91 U. S., 551. See also, the well-known case of Baily v. Beto York.
    
    
      The act is unconstitutional because it disqualifies citizens from holding office by reason of political opinions they entertain, or reputed to entertain.
    In City of Evansville v. State, 118 Ind., 420, 423, the court passed upon the precise question here involved. Cooley’s Constitutional Limitations (5th ed.), 483; Broion v. Hayioood, 4 Heisk., 357; Laugh-tan v. Commonwealth, 79 Va., 196 (52 Am. Rep., 626); Attorney General v. Board, 5 Am. Rep., 675. See also People v. Hurlburt, 24 Mich., 44-93; 58 Mich., 213, Atty. Geni. v. City of Detroit; 15'Md., 379-466, Mayor of Baltimore v. State. ' In 19 Am. & Eng. Enc. of Law, 398 ; 53 Albany Law Journal, 310; 118 Ind. 449; 124 Ind., 514.
    Points made in oral argument by G. B. Matthews, for plaintiff in error.
    The water-works act of the city of Cincinnati, 92 Laws, 606, is obnoxious to the constitution of the state.
    
      First — Because it is compulsory legislation with reference to a proprietary right of a municipality.
    
      Mount LLope Cemetery Company v. Boston, 23 Ñ. E., 695; Cooley’s Constitutional Limitations, (6th ed.), 223, 226, 284 and 288; Beach on Public Corporations, 724.
    
      Second — The act is invalid because it is special legislation with reference to a general subject. Parker v. City of Neioark, 30 At., 186; Dao'cy v. Scon Jose, 104 Cal., 642; Pittsbw^gh v. Hughes, 13 Pa. Co. Ct. Rep., 535 -,-Philadelphia n. Cemetery Company, 162 Pa.. St., 105; Alexander v. City of Elizabeth, 28 At., 51. Among others, the following Ohio cases: Cincinnati v. Steinkamp, 54 Ohio St., 284 ; State v. Commissioners, 54 Ohio St., 333; State v. Baker, 55 Ohio St., 1; Hayes v. Cleveland, 55 Ohio St., 117; Atoic v. Davis, 55 Ohio St., 15. Also Gardner v. City of Chester, 2 Pa. Dist. Rep., 162; Water-ioorks v. Atlantic City, 39 N. J. Eq., 367; Same case, 44 N. J. Eq., 427; ----v.-, 82 Wis., 374.
    
      Third — Section eight of the law is -invalid because it confers the power of eminent domain on the city to be used for private purposes, and permits a loaning of the credit of the city to a private individual or corporation. Colbu/rn v. Bailroad Company, 94 Tenn., 43.
    
      Frederick Ilertenstein, Corporation Counsel, and Paxton, Warrington <& Boutet, for defendant in error.
    I. The only standard recognized in Ohio for testing the validity of an act of the legislature is the constitution. The only standard of public policy and even of natural justice recognized in our state, after the general assembly has within the language and intent of the constitution declared one, is that found in the legislative acts. Probasco v. Baine, Auditor, 50 Ohio St., 378, 390; State exrel. v. Cincinnati, 19 Ohio, 178; Walker v. Cincinnati, 21 Ohio St., 14; State ex rel. v. Smith, 44 Ohio St., 348.
    II. Every act of the general assembly is supported by a strong - presumption of validity. No statute, whose subject matter is of a legislative character, can be judicially declared invalid, unless it clearly and incontestibly violate some express or necessarily implied provision of the constitution. The slightest doubt of invalidity is the certain sign of validity. McCormick v. 
      Alexander, 2 Ohio, 65; Zeiois v. McElvaine, 16 Ohio, 347; C. W. & Z. B. B. Go. v. Clinton Go., 1 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 573; State ex rel. v. Cincinnati, 20 Ohio St., 18 ; 21 Ohio St., 14, 42; Western Union lei. Go. v. Mayer, 28 Ohio St., 521; State v. Eendle, 52 Ohio St., Walker v. Cincinnati, 346.
    III. We maintain the water rents which as here are to be collected only of water consumers, are not taxes, but are charges voluntarily assumed and consequently founded on consent; and that the board of administration is a municipal agency which was, prior to the passage of the disputed acts, accustomed . to the exercise of important legislative power, including that of' taxation, with the approval and consent of the people of Cincinnati.
    The owner of property who is not a consumer but who can thus be made liable is chargeable with notice of this provision, and therefore as consenting to pay. Anderson v. Brewster, 44 Ohio St., 576, hot. ’ p. 580 and hot. p. 584; Provident Institution v. Jersey City, 113 U. S., 506. Such owner is consequently to be treated precisely the same as a consumer.
    Are water rents which are chargeable only to consumers, taxes? Cooley, in his work on Taxation, 1, defines taxes. At page 199, the author states the purpose of revenue or tax laws. Bourroug-hs, section 4; Hilliard, section 22; Bailroad Go. v. Commissioner, 1 Ohio St., 102; Schovil v. CiPy of Cleveland, 1 Ohio St., 136; Boa/rd of Education v. State, 51 Ohio St., 539; Anderson v. Brewster, 44 Ohio St., 581.
    The leading ideas which we wish to impress by these quotations are the compulsory nature of the charges without respect to any definable corresponding benefit, and. the unlimited extent to which they may be imposed. Taxes are enforceable charges, no matter whether there be appreciable benefit given in return or not. The right to levy and collect them is as broad as the public needs. Wagner v. Gity of Booh Island, 146 111., 139. Vreeland v. Jersey Gity, 43 N. J. L., 135; Veeland v. O'Neil, 36 N. J. Eq., 399; Yreeland v. jersey Gity, 37 N. J. Eq., 574; Provident Institution v. Jersey City, 113 U. S., 506. The same distinction is made in New York. Bemsenv. Wheeler, 105 N. Y., 573; Matter of Trustees of Union College, 129 N. Y., 308; Silkman v. Water Commissioners of Gity of Yonkers, 54 N. Y., 81; Allen v. Drew, 44 Vt., 174; The Northern Liberties v. St. John's Church, 13 Pa. St., 104; Cooley on Taxation, 2d ed., 620.
    In Diete v. Gity of Cleveland, recently affirmed in Hayes & Son v. Gity of Cleveland, 55 Ohio St., 117, this court sustained an act passed April 27, 1896 (92 Ohio L., 704), authorizing cities of the class and grade of Cleveland to issue $1,500,000 of bonds for water-works purposes, and requiring the sum, principal and interest “to be paid out of the receipts of the water-works.”
    The same policy exists in other states. For example, Massachusetts — 8 Mass. Spec. Laws, 1838-1848, p. 624, section 11; Id. 1860-65, p. 514, section 6; lb. 591, section 13 ; New York — Rev. Stat. of N. Y., Banks & Bros., 9th ed., vol. 3, p. 2399, section 15; New Jersey — Gen. Stat. of N. J., ed. 1896, vol. 1, pp. 651-2, par. 920, see. 3: also Gen. Pub. Laws, N. J., 1876, p. 372, section 12; also Spec. Pub. and Priv. Laws, Session of 1871, p. 1132, section 83; Indiana — 22 Ind. Rev. Statutes, 1894 (Burns), p. 518, section 4261; Illinois— 1 Starr & Curtis’ Annotated 111. Stat., p. 864, par. 447 ; after so providing for cost of construction, surplus authorized “to be applied as council or board of trustees may direct;” Missouri — 1 Rev.Stat. of Mo., ed. 1889, sectioi 1172, p. 348; Nebraska — Compiled Stat. of Neb., ed.' 1895, p. 265, section 91; and Wisconsin — 1 Annotated Stat. of Wis. (Sandborn & Berryman’s), section 98, p. 570; Elster v. Springfield, 49 Ohio St.,'97; Meriwether v. Garrett, 102 U. S., 472.
    It has been the policy of the legislature for years to vest in the board of administration and its predecessors, in cities of the-first grade and class, extensive legislative power relative to municipal obligations, to taxation, and to assessments, no matter whether the members of the board were elected or appointed. Board of Education v. Sicote, 51 Ohio St., 538; Toledo Bank v. Bond, 1 Ohio St., 623, last par. of syl. 699; Merixoether v. Barrett, 102 U. S., 472, par. 3 of syl.
    IV. The claim that consent to municipal improvements can be given only by the councils or the citizens, is in direct conflict with Ohio decisions. Scheer v. City of Cincinnati, 14 W. L. B., 87; City of Cincinnati v. Street By. Co., 36 W. L. B., 300: Meriweather v. Gcm-ett, 102 U. S., 472; Toxon of Mcwietta v. Fearing, 4 Ohio, 432; Toledo Bank v. Bond, 1 Ohio St., 645.
    Cities and villages are distinguished from counties and townships, touching the “survival” of a “system of’local self-government,” so far certainly as the power of the legislature to prescribe the agencies and vest in them power to bind the localities is concerned. Sicote ex rel. v. Commissioners of Hamilton County, 35 W. L. B., 213, at 214 ; Baker v. City of Cincinnati, 11 Ohio St., 542; 
      State v. Covington, 29 Otilo St., 113; State exrel. Herron v. Smith, 44 Ohio St., 372; State v. Baughman,, 38 Ohio St., 455, 461; Ntofe v. Constantine, 42 Ohio St., 437, 442; Niafe c¡r re/. Herron v. Smith, 44 Ohio St., 348; d'zto/e v. Cincinnati, 52 Ohio St., 419; Matter of Board of Public Works, Í44 N. Y., 440.
    V. Nothing can be done under the water-works law toward either the construction of water-works or their enlargement and improvement, unless it originate in the voluntary consent of the board having charge of the municipal water supply. The water-works law in this regard, not to. speak of other portions at this moment, is clearly both in form and substance merely permissive, not mandatory. Minor et al. v. Bank, 1 Pet., 46; Julius v. Lord Bishop of Oxford, L. R., 5 App. Cas., 214; Sifford v. Beaty, 12 Ohio St., 194.
    VI. The water-works law, in its form and essence, is legislative, not administrative.
    It is settled that the legislature can by m andatory statute compel any of the state political subdivisions to provide for paying their just obligations, and to pay them. Board of Education v. State, 51 Ohio St., 531; Lew Orleans v. Clark, 95 U. S., 644.
    If the commissioners were m their discretion to adopt the plan mentioned in section 8, instead of that named in section 7 of the act, still they are merely “authorized to contract” for the proposed improvement “as an entirety * * * and .for
    the exclusive privilege of connecting” the improvement “with the existing water works” section 8.
    But even if this were so, the section 8 could not be ' declared invalid for that reason; because (1), it is plainly discretionary with the commissioners either to resort or not to resort to the plan authorized by section 8, and (2), it is settled that the legislature has power to provide for the making of exclusive grants, the only question in any case being whether it has clearly done so. State ex rel. v. Ginti. Gas Light eft Golee Co., 18 Ohio St., 262, syl. 2; Newton v. Board of Comrs. of Mahoning Co., 26 Ohio St., 626, par. 2; State ex rel. v. City of Hamilton, 47 Ohio St., 71.
    VII. Section 8 properly construed authorizes the creation of no other or different relation from that of employer and employe, and ultimately of lessor and lessee; the city as employer furnishing, sites for improvements and the employe as contractor constructing them; and the contractor becoming finally the lessor and the eitjr the lessee with privilege of purchasing only such improvements as shall be constructed. Trustees of C. S. By. v. Llaas, 42 Ohio St., 239; Same v. Handy, 9 W. L. B., 32.
    In what way can it fairly be urged that the city would in this manner aid the contractor and prospective lessor? The city would not “raise money for” him. The city would not “loan its credit to” him. He would do these things for the city. Walker y> Cincinnati, 21 Ohio St., 54; Wyscaver v. Atkinson, 37 Ohio St., 96. A system of water works is a publiq enterprise. State ex rel. v. City of Toledo, 48 Ohio St., 112.
    This cannot be a loaning of credit or giving of municipal aid. Brady v. Bayonne, 39 Atl. Rep., 968, at left col. 969; also N. J. Laws of 1888, 366; also section 19, art. 1, p. xxxiv, of N. J. Const, as amended in Rev. Stat. of N. J., ed. of 1709 to 1877; The City of Cincinnati v. Julius Dexter, 55 Ohio St., 93.
    
      But even if section 8 were declared to be invalid, the rest of the statute could not be declared void for that reason.
    ■ The water-works law enacts by different sections two complete and unconnected modes for executing the power to construct or enlarge and improve water-works, and vests in the commissioners the right to select and carry into execution either of these modes. Constitutional severability of such an act is clear. B. B. Go. v. Oomrs., 31 Ohio St., 338, 343; Boioles v. State, 37 Ohio St., 35; States. Frame, 39 Ohio St., 399, 411; Treasurer v. Bank, 47 Ohio St., 504, syl. 3.
    VIII. Both the water-works and water rents laws are general in form, not special. Their classification of the municipalities affected conforms with • the rule now established as to general laws and laws of a general nature. State ex rel. Atty Geni v. Baker, 55 Ohio St., 1; Ilayes db Sons v. Gity of Cleveland, 55 Ohio St., 117.
    IX. The commissioners are not officers within the meaning of section 20, article II of the consti. tution requiring the general assembly to “fix the term of office and the compensation of all officers.”
    
      (a) As to the commissioners not being officers etc: Walker v.< Cincinnati, 21 Ohio St., 50 ; Gleason v. Cleveland, 49 Ohio St., 431.
    (5) As to the provision for political qualification, and its directory character: Commonwealth
    
    v. Plaisted, 148 Mass., 375; Rogers v. Common Council of Buffalo, 123 N. Y., 173; 2 Beach Pub. Cor., section 1309, and note; Albany L. J., May 16, 1896, 310.
   Burket,. J.

The water-works act authorizes the appointment of commissioners of water-works by the governor of the state in cities of the first grade of the first class, upon request of the board of such city having charge of the water supply, and for the construction of water-works, or the enlargement, extension and improvement of existing water-works by such commissioners, at a cost to the city of not exceeding six millions five hundred thousand dollars, for which bonds are to be issued by such commissioners, to be secured by a lien upon the water-works property then owned, and thereafter acquired by such city, and upon the net income of the water-works, and by a pledge of the faith and credit of such city.

The water-works, when so constructed, or enlarged, extended and improved, are to be owned and operated by the city for the benefit of its inhabitants.

After providing for the appointment and qualification of said commissioners, and prescribing their duties and powers, and providing as to plans, surveys and specifications, so as to secure an abundant supply of pure water, there is contained in said act section six, which is as follows:

“Section 6. Said commissioners are authorized to acquire by purchase or by the proceedings hereinafter mentioned, in behalf of such city, all real and personal property and franchises necessary for the proper construction of water-works, if there be none existing, and for the enlargement, extension, improvement or addition to existing water-works; and whenever, for such construction or the completion of any part or parts of such enlargements, extensions, improvements or additions, it shall be necessary to use or occupy any street or other public way, space, park or ground, or any part thereof, belonging to such city, or to cross any stream under the control of the state, said commissioners may take and use or occupy the same on behalf of the city for such purposes; and whenever it shall be necessary, in the opinion of said commissioners, to appropriate any land, turnpike, highway or franchise of any description, or any easement or interest in any of the same, in order to carry out the purposes set forth in this act, either within or without the limits of such city, or, whenever, for like reason, it shall be necessary, in the opinion of said commissioners, to appropriate land for the foundations or abutments of piers across any stream within this state, said commissioners are authorized to commence and conduct, in the name of such city, proceedings therefor under and according to chapter 3, division 7, title 12, of the Revised Statutes, and the acts amendatory and supplementary thereto, and no concurrent action of any board or officer shall be necessary; and all the powers with respect to such proceedings that are now vested in any other board or officer, shalL be vested also in and may be exercised by said commissioners. ’ ’ •

Section seven of the act prescribes the manner of proceeding by said commissioners in the construction, or enlargement, extension and improvement of water-works for the city, to be owned and operated by it.

Section eight is as follows:

“Section 8. If said commissioners should deem it inexpedient or inadvisable to proceed under section 7 of this act, then, in order to provide for the construction of water-works, if. there be none existing, or for the enlargement, improvement or addition to existing water-works, said commissioners are hereby authorized to contract, in the name of the city, with any person, company, or corporation, their successors or assigns, for the construction of such works, or such enlargements, extensions, improvements or additions, as an entirety, in accordance with the surveys, plans and specifications that may be adopted, and for the exclusive privilege of connecting such enlargements, extensions, improvements, or additions to the existing water-works, and for a lease on behalf of such city of such water-works of such enlargements, extensive improvements or additions to the same, from the person, company or corporation, their successors or assigns so constructing the same, upon such terms as may be agreed upon, and may by said contract or lease pledge the income of such water-works as so constructed . and enlarged, to secure the payment of the rentals provided in said lease. And said commissioners are hereby authorized to convey to such person, company or corporation, their successors or assigns, any property or rights acquired, or which may become necessary to acquire, under the provisions of section 6 of this act, or authorize the use of any property which may be necessary to enable the said person, company or corporation, their successors or assigns, to complete the construction or enlargements, extensions, improvements or additions to existing’ water works, upon such terms and conditions as may be ag’reed upon; provided, however, that no such lease shall be made for a longer period than forty years, renewable forever, with the right reserved to said city, upon six months’ notice in writing, at the end of each period of ten years, or at such shorter period as may be agreed upon during the term of said lease, to purchase said water-works, or the enlargements, extensions improvements, and additions to the water-works,, under -such terms and conditions as may be agreed upon in said contract; and provided, further, that* in making such contract, said commissioners shall be governed by all the statutes now in force relative to competitive bidding, and the making of contracts. And provided further, that if said commissioners enter into said contract and lease, as herein provided for, then said work shall be operated, managed and conducted by such city as provided bylaw.”

The serious question is, whether this section eight is constitutional. Section six of article eight of the constitution is as follows: “The general assembty 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.”

The full scope of this section of the constitution has not yet been determined by this court. In Walker v. The City of Cincinnati, 21 Ohio St., 15, the court says: “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 Taylor v. Commissioners of Ross County, 23 Ohio St., 22, the court, on page 78, say: “And if it shall be deemed wise and economical to authorize municipalities, who own water-works 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.”

This section of the constitution not only prohibits a “business partnership,” which carries the idea of a joint or undivided interest, but it goes further and prohibits a municipality from being the owner of part of a property which is owned and controlled in part by a corporation or individual. The municipality must be the sole owner and controller of the properly in which it invests its public funds. A union of public and private funds or credit each in aid of the other, is forbidden by the constitution. There can be no union of public and private funds or credit, nor of that which is produced by such funds or credit.

The whole ownership and control must be in the public. The city may lease from an individual or corporation any property of which it may need the use, or having property the use of which it does not need, it may lease the same to others, but it cannot engage in an enterprise with an individual or corporation for the construction or erection of a property which, as a completed whole, is to be owned and controlled in part by the city, and in part by an individual or corporation.

The sixth section of the act contemplates, that the plans, surveys and specifications having been agreed upon, the commissioners shall select the site and acquire the necessary real and personal property and franchises, by purchase or appropriation for the construction of water-works, or for the enlargement, extension or improvement of existing water-works, together with the right to use and occupy any street or public ground and cross any stream, in short to get everything ready to proceed to the construction, or enlargement of water-works under section seven of the act. Everything being thus in readiness, and having been acquired by the commissioners with the public funds of the city, the eighth section provides that if said commissioners should deem it inexpedient, or inadvisable to proceed under said section seven for the construction or enlargement of water-works, said commissioners may contract in the name of the city with any person, company or corporation for the construction or enlargement of such water-works, as an entirety, in accordance with the surveys, plans and specifications adopted, and for the exclusive privilege of connecting such enlargements with the existing water works, and for the lease of such works or enlargements bjr the city from the owners upon such terms as may be agreed upon.

It will be noticed by a careful reading of section eight, that the water-works and the enlargements will be owned by the person, company or corporation constructing them, that the existing water works are owned by the city, that to these water works so owned by the city, an individual or corporation may make enlargements, extensions, improvements and additions to be owned by the person or corporation making them, and to be connected with the existing works, and to be leased to the city upon such terms as may be agreed upon. When the enlargements, extensions, improvements and additions shall be thus made, completed and connected with the existing water-works so owned by the city, the enlargements, extensions, improvements and additions, together with the existing works, all taken together, will constitute one completed whole — one waterworks system, one water-works — owned in part by the city, and in part by the individual or corporation, and thereby the union of public and private capital and funds in one enterprise will become complete.

The provision that the works shall be operated, managed and conducted by the city, does not relieve the matter, because before the city can operate the works, it must first obtain a lease upon such terms as may be agreed upon, and that puts it beyond the power of the city to operate and control the works as sole proprietor.' It would be a joining of- two. properties owned by different parties, together, to make one property, the parts owned by each being- necessary to the successful operation of the whole, and each owner having his say as to the terms and conditions upon which the whole should be operated. The existing water works would be so tied to the extensions as to be dependent upon them, and the extensions would be so tied to the existing works as to be of but little value without them. It is this close connection and dependence one upon the other that constitutes both together as a single whole, and makes a union of public and private funds and credit. The existing works are to be connected with the new improvements, and are thereby to lend aid to the person, company or corporation making and owning such new improvements.

The case is not like a city leasing a building or water-works plant owned by another, because in such case the leased property, would stand upon its own merits, and would not, before or after the lease, become merged into the other property of the city so that the whole would become one property, and make the property of the city dependent upon the leased property for its value and utility.

Whether the city has the right to appropriate private property, for the sole purpose of selling the same to a private person, company or corporation, as provided in the sixth and eighth sections, may well be doubted.

We regard the eighth section of the act as clearly in conflict with section six of article eight of the constitution, and therefore void.

The remainder of the act, in so far as it does not depend upon section eight, is a complete statute in itself, and not in conflict with any provision of the constitution. The reasons for so holding are sufficiently stated in the opinion of the circuit court in this ease, reported in 12 Circuit Court Reports, 119.

As to the water rent act, it is sufficient to say that the general assembly has full power to legislate upon the subject, and provide the purpose to which the water rent shall be applied, and there is no injustice in applying the water rent to aid in the construction of the water-works, and the power to do so is certainly ample. Water rents are not, strictly speaking, taxes, and certainly not taxes on property to be regulated under article twelve of the constitution. Whether this statute applies water-rents to general revenue, as urged by counsel, is doubtful, but, even if it does, the act is not thereby rendered unconstitutional. In raising general revenue, all property must be taxed, except such as may be exempted under section two of article twelve, but this does not prohibit the legislature from procuring general revenue from sources other than taxation on property. The State ex rel. v. Ferris, 53 Ohio St., 314. The judgment in the water rent case should be affirmed and the judgments in the water-works cases should be so/modified as to grant the injunctions prayed for as to proceedings under section eight of the act, and to refuse the injunctions as to the remainder of the act.

Judgment accordingly.  