
    *John Carey et al. v. The Commissioners of Wyandot County.
    This is a motion to dissolve an injunction reserved in Wyandot county, and was considered and decided in connection with the last preceding case.
    On March 20, 1850, “the act to incorporate the Ohio and Indiana Railroad Company” was passed, with authority to construct a railroad, commencing at a suitable point, to be selected by said company, on the Cleveland, Columbus and Cincinnati Railroad, near Sultzer’s tavern, in the county of Richland; thence to Bueyrus, in the county of Crawford ; thence to Upper Sandusky, in the county of Wyandot; and thence, on such route as the directors of said company or a majority of them may select, to the western line of the State of Ohio; and thence to Fort Wayne, in the State of Indiana.
    Section 4 of this act provides, “ that the county commissioners of any county through which said railroad may be located, by and with the consent of a majority of the legal voters of such county, . . . be and they are hereby authorized and required to sub-
    scribe, in the name and for the benefit of such county, to the capital stock of said company any sum not exceeeding one hundred thousand dollars,” etc. 48 Local Laws, 297.
    Section 12 also provides, “that before any stock shall be subscribed in said company by the commissioners of any county, under the provisions of this act, the question shall be submitted to the qualified electors of such county, whether the county shall become a subscriber or not,” in the manner prescribed in said act. This charter is also subjected to the restriclions of the general railroad act of February 11, 1848.
    *At the October election, 1850, a vote was taken in Wyandot county, on the question for and against a subscription of $50,000 to the capital stock of the Ohio and Indiana Railroad, which resulted in favor of it by a majority of ninety votes.
    
    The commissioners of that county soon thereafter were preparing to subscribe the $50,000 in pursuance of this vote ; whereupon the complainants filed their bill. They represent and show that they are citizens of Wyandot county, and the owners of large tracts of real estate, as well as of large amounts of personal property within the county, upon which they are required to pay taxes, and which are annually assessed upon the duplicate for county, state, and other purposes of taxation.
    The faith of the county subscribing stock under the aforesaid charter, and the net profits or dividends upon the stock so subscribed, are pledged for the payment of the indebtedness and interest, which may become due from the county by reason of such stock subscription. And the county commissioners and auditor are required, annually, to assess a tax upon the property of the county; sufficient in amount to pay the annual interest on such loan, and to provide a sinking fund to extinguish the principal of the indebtedness ; and such assessment of taxes is to be placed on the county duplicate, and collected as other county and state taxes are collected.
    The bill alleges that complainants voted against the said subscription, and have never given their assent to it; that fraudulent representations wore made to procure votes in favor of said subscription, which are particularly mentioned in the bill; and that at the time of taking said vote, said Ohio and Indiana Railroad bad not any portion of it been located in Wyandot county, nor west of Bucyrus, in Crawford county.
    The bill prays that the commissioners be enjoined from subscribing said $50,000 of stock to the Ohio and Indiana Railroad Company.
    An injunction was allowed by a single judge, in vacation, restraining the subscription of stock by the commissioners, and continued by the court of common pleas of Wyandot county, *until the removal of the cause into this court. On March 24, 1851, the legislature passed “an act to amend the act entitled an act directing the mode of proceeding in chancery, in the counties of Wyandot and Crawford;” by the terms of which, “ in any cause in equity then pending, or which might thereafter be instituted, wherein an injunction has been allowed by the court of common pleas, or any president judge thereof, any party against whom said injunction has been allowed, may file a motion in the Supreme Court, in the county in which such case is pend, ing, or in the Supreme Court in bank, setting forth the grounds of the same; and the Supreme Court in the county, or the court in bank, shall have competent power and jurisdiction to hear and determine said motion to dissolve the injunction, on ten days’ notice to the other party,” etc. 49 Local Laws, 321.
    Under this law motion was made in the Supreme Court of Wyandot county, at the July term, 1851, to dissolve the injunction ; which motion was reserved for decision here.
    An answer was filed by John Welch, one of the commissioners of Wyandot county, in person; and for Ethan Terry and Isaac Walgamottc, the other two commissioners of that county, an answer was filed by the attorneys for the railroad, who also represent the county commissioners. At the April term, 1851, of the common pleas, this answer, on the motion of the complainants, was stricken from the files, on the ground that it was not signed, in person, by the respondents; and for the reason, also, that an answer by the board of commissioners should be filed, in pursuance of an order entered upon their journal for that purpose, and should assume to be their official act, as a board of commissioners.
    The respondents are now urging the dissolution of the injunction, under their motion for that purpose.
    O. Bowen, O. K. Watson, and Wm. H. Gibson, for the complainants.
    The same arguments were submitted as .in the last preceding case.
    *0. Bowen argued the further questions arising in this case.
    The first question we present, is, whether the commissioners of Wyandot connty are authorized to make a subscription of stock to the Ohio and Indiana railroad, issue bonds, and pledge the faith of the county for their payment ?
    We insist that the vote of the qualified electors, which must by law precede the subscription, was prematurely given—that it is a nullity. The language of the railroad charter, under which the proceedings to secure the subscription were attempted to be had, is, “ that the county commissioners, through which said railroad may be located, by and with the consent of a majority of the legal voters,” be authorized and required to subscribe, etc. To locateT means to designate and determine the place of—to settle the particular spot or position of a thing. Location is an act completed. It imports, when applied to railroads, much more than power to construct a road through the county, or than the organization of a company with authority for that purpose. It implies that the power has been obtained, the organization of the company perfected, and everything precedent to the establishment of the road performed. Questions as to points of commencement and termination—its angles and curves, courses and distances.—■ are settled by it, and to be seen and understood as fully as if the grubbing and grading of the work were completed. When the vote was taken in October, what had been done toward locating the road in Wyandot county? No route was established for it through any part of the county. The action of the people, it is fair to presume, might be much influenced by the course the road should pursue through their county.
    Smith’s Com. 560, sec. 504; Stourbridge Canal Co. v. Wheely, 2 B. & Adol. 793.
    We contend, further, that the vote of the people of Wyandot county was a nullity, for the reason that, when it was taken, no organization of the Ohio and Indiana Railroad Company had been perfected. It is averred in the bill, and not denied, that at the date of the election, there had not been subscribed by ^individuals, to the capital stock of the railroad company, more than $20,000. The charter requires that $50,000 shall be subscribed, as precedent to any organization of this company. It is said, in the bill, that about the sum of $25,000 was authorized to be subscribed by townships; but no actual subscriptions by them had been made; and if there had been, there is the same premature action, which, we have shown, vitiates the vote of the county, attending the vote of the people of any township before then taken.
    We have not understood that the motion to reinstate the answer of the commissioners of Wyandot county will be insisted upon, but if it should, we refer to the following authorities, viz: Cooper’s Eq. Pl. 226; Daniel’s Ch. Practice, 269; Bayley v. De Nalkins, 10 Ves. 441; Harding v. Harding, 12 Ves. 259; Wilson v. Grace, 14 Ves. 172; Rogers v. Cruger, 7 Johns. 558; Dumond v. Magee, 2 Johns. Ch.; Dennison v. Bossford, 6 Paige’s Ch. 370; and Story’s Eq. Pl. (4 ed.) 895. Judge Story says: “Where an oath is not required, generally there must be the signature of the defendant to the answer.”
    But the answer is not properly executed, for another reason. The county of Wyandot is a quasi corporation, and the county commissioners representing it must answer, in chancery, as such corporation. The answer must be the act of the corporation, adopted as such by the action of the commissioners, as a board. Story’s Eq. Pl. 278, (4 ed.) in its support.
    C. K. Watson
    further argued that the act authorizing the subscription was void, because it delegates legislative power to the counties and townships. Parker v. Com., 6 Barr, 507; Rice v. Foster, 4 Har. 479.
    On the other side, it is claimed that the state legislatures are clothed with powers of taxation, limited only by express constitutional provisions. To this we reply that under our constitution, all powers not delegated to the state government are expressly reserved to the people. 8 Leigh, 150, per Judge *Brooke; 4 Har. 485; 6 Barb. S. C. (N. Y.) 215; 9 Dana, 513; Sutton’s Heirs v. Louisville, 5 Dana, 28.
    T. W. Bartley, Samuel E. Yinton, J. D. Sears, M. Birchard and H. Stanbery, for respondents.
    The same arguments were submitted as in the last preceding case.
    H. Stanbery argued the further questions arising in this case:
    I. As to the objection, that there should have been an actual survey of the line before the vote:
    1. We say that, as to Wyandot county, the act of incorporation does locate the road through that county, within the meaning and spirit of this section.
    The line of this road is in part fixed, and in part left at large by the act. Its line is fixed through Wyandot county, by way of the county seat; and no power can change it, so as to avoid the county. West of Wyandot county, the location is left at large. This uncertainty as to the route of the road west of Wyandot, and as to the particular line to be run through Crawford and Wyandot, as to the towns and townships in those counties, was undoubtedly the reason of this provision. The intent of the legislature was, that no county, town, or township should subscribe unless the road passed through it.
    As to Wyandot county, there was no contingency—no may be—■ as to the road. The question did not depend on a survey; the law settled the question, and brought Wyandot precisely in the condition for subscription.
    The conclusion is inevitable, that the act locates the road through this county, unless the intent of the legislature was not merely that the road should pass through the county, but should pass through it on some definite and surveyed line. It is clear that the legislature had no such meaning.
    2. But if the.legislature meant an actual survey, and the appropriation of a particular line through Wyandot, yet the *act does not require such location as a condition precedent to the vote.
    The location has reference to the subscription. The county commissioners, when authorized by the vote, may make the subscription to the road, if located through their county.
    
      What is there to prevent the vote prior to the location—or, indeed, as an inducement to the location? The vote simply gives authority to make the subscription. It is the subscription which is the binding thing; and if the road is located before it is made, the location is in good time.
    The court will not fail to see that, as yet, there has been no subscription in Wyandot; and that the plaintiffs seek to maintain their bill, -on the ground that there was no location prior to the vote. They have enjoined the subscription, not because the road is not yet located, not until it shall be located, but absolutely because it was not located at the time of the vote. The provisions of section 12 of the act show that the vote may be taken at any spring, or fall election.
    II. Is the act authorizing a subscription upon a vote of the people void, because of a delegation of legislative power? In other words, has this act of the general assembly the character of a law! Is it of itself—proprio vigore—a law ; or is it merely a proposition, having no effect as a law without the assent of the-people of the county expressed by a popular vote?
    These propositions are undeniable :
    1. That the body of the people, or the majority of qualified voters of a county, have no legislative power of any sort. They can neither pass laws, nor levy taxes for works of county improvement, or for any other purpose. Nor can they either approve, so as to ratify; or veto, so as to annul, any laws passed by the general assembly. '
    2. That all legislative power in the State of Ohio is vested in the general assembly, subject to the limitations declared in the constitution of Ohio, or imposed by the constitution of the United States.
    *3. That a law may be made to depend on a contingency—■ may take effect at a future day, or upon the happening of a future and contingent event, beyond the control of the legislative authority.
    Now I maintain that this act has all the qualities of a law, and exists as a law from the moment of its enactment,'without reference to any action, or any sanction, by the people of the county. Everything to be done under its provisions is done in virtue of the act itself, and can only be done according to those provisions. Many things to be done under those provisions are not mandatory, but optional, on the part of persons to be affected.
    In what particular do the voters, who assent to make the subscription, exercise more legislative power than the railroad company which assents to receive the subscription? The assent of both is required, and is equally necessary to give effect to the principal thing to be accomplished—that is, the subscription.
    The assent required, or proposed as well to the railroad company as to the voters, is simply an assent to be given under the law, and in conformity with the law—an assent to certain provisions, which, if given, calls into exercise certain other provisions.
    If this act of the general assembly were so framed, that by its terms it should not become a law without the approval or consent of the voters, or of a corporation, or of the governor, or any other individual or authority, independent of the general assembly, then, indeed, there would be some semblance of a delegation of legislative power; but even then it would not be strictly legislative power, hut rather a power of approval or rejection, very analagous to the power conferred by the federal constitution on the president.
    But there is nothing of that character—no such conditional provision in this act. The general assembly have passed it upon their own authority, and it stands as a law fr,om the date *of its enactment—in no respect subject to approval or rejection by any other power or authority.
    It is simply a law to authorize a subscription—not to compel a subscription ; the contingency as to a subscription depending on the assent of a majority of the voters, and only to be made when that assent is given. If that assent is given, the law provides what further is to he done, in the making of the subscription, the issuing of the bonds, and the levy of a tax.
    Here, then, is a law e'ontaining various provisions, some of which provisions are dependent on a contingency—on an option or consent of third persons. The law is depend-ent on no contingency —on no option or consent from without. Whether the contingency happen or not, whether the assent be given or not, this act is all perfect as a law.
    Take now a familiar instance in which an act of the general assembly depends on a contingency. Take the common case of an act of incorporation. Can it be said that when such an act has passed the legislature that it is not a law? And yet it depends on a contingency, on an assent to bo given ; for until it is accepted— until a corporate body is organized and assents to receive it—the act does not have its full effect. Is that a delegation of legislative power ?
    Take another instance : the act passed by Congress for the distribution of the public moneys among the states. That act provided for a prorata distribution to the states of a large amount of public money accumulated in the treasury of the Uuited States; and it provided for the deposit with each state of its share, upon certain conditions to be agreed to by each state for itself. Some of the states accepted, others rejected the deposit. Will any one say that this act of Congress was not a law ?
    I have said that if this act of the general assembly, by its terms, was so framed as not to become a law unless sanctioned by a popular vote, there would be some ground for the objection, that as a law it is not made by the true legislative authority. It might then be argued with some plausibility, that the ^people make the law—that the people are left to say whether it shall or shall not be a law, and thereby exercise a legislative power. I do not say that such a legislative act would be void, but I do say it is only such an act that could give rise to the objection now urged; and I further say, that no authority can be found in favor of this objection, except in reference to an act of that character.
    This is precisely the sort of legislative act which was before the Supremo Court of Pennsylvania, in the case of Parker v. Commonwealth, 6 Barr, 507.
    Samuel E. Yxnton, for respondents, in support of the constitutionality of the law,
    cited the following authorites : 11 Penn. St. 70 ; City of Louisville v. Hiatt, 2 Mon. 178 ; 9 Dana, 514; Adams v. How, 14 Mass. 345; Wellington v. Petitioners, etc., 16 Pick. 95; Kendall v. Kingston, 5 Mass. 534; Barnes v. Falmouth, 6 Mass. 417; Portland Bank v. Apthorp, 12 Mass. 254; Rice v. Foster, 4 Har. 479; Parker v. Com. Penn., 6 Barr, 507; was reviewed in Com. v. Judges Q. Sess., 8 Penn. St. 391, and Com. v. Painter, 10 Penn. St. 214; Com. v. McWilliams, 11 Penn. St. 61; 7 Cranch 382 ; 2 Yeates, 493 ; Godden v. Crump et al., 8 Leigh, 120.
   Spalding, J.

The opinion of the court delivered in the last preceding case disposes of this.

Motion dismissed for want of jurisdiction.

For the dissenting opinion of Hitchcock, C. J., in this and the last preceding case, see Appendix A.  