UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY CINCINNATI Southern Railway, CIRCULAR OF THE TRUSTEES TOOETHF.B WITH THE Laws Authorizing the Construction CINCINNATI SOUTHERN RAILWAY. DECISIONS OUPER^OR LOURT OF CINCINNATI SUPREME COURT OF OHIO THEREON. CINCINNATI : WRIGHTSON & CO., BOOK AND JOB PRINTERS. 1873. BOARD OF TRUSTEES. MILES GREENWOOD, President. R. M. BISHOP, E. A. FERGUSON, WILLIAM HOOPER, PHILIP HEIDELBACH . \ A*. _ . M MAP OF i : ; i i i i < > : i i - (; o 11 v e r gr I n i at CINCINNATI AND CHATTANOOGA. AND (Mines of Surveys of the Cincinnati Southern Railway, RAILROADS IN OI'KUATIOX, " PROJKCTED, CIN. SOITIIKRN RY. SIRVKYS, __ CiN.O From which a route will be selected. A. -E>0 Q VI AT TAMO INDEX. PASS. Trustees' Circular, - 5 Ferguson Act, 1869, - 9 Supplementary Act, 1870, - - 15 Supplementary Act, 1873, - 16 Proceedings in Superior Court of Cincinnati, - 19 Decision in Superior Court of Cincinnati, - 36 Decision in Supreme Court of Ohio, 1871, - 46 Decision in Supreme Court of Ohio, 1872, 70 Tennessee Act, 1870, - - 81 Supplementary Act, 1870, 91 Kentucky Act, 1872, - - 92 Supplementary Act, 1872, - 106 Supplementary Acfc, 1873, - ... 107 United States Act Authorizing Construction of Bridges Across Ohio River, - - 108 a It is more than thirty years since the question of connecting Cincinnati by a railroad, through the States of Kentucky and Ten- nessee, with the States of the South lying beyond .the Cumber- land mountains, began to be discussed. The importance of such means of communication has always been acknowledged, but the difficulties and cost of the route have prevented private capital hitherto from succeeding in the enterprise, although several at- tempts have been made. During the late civil war, so necessary to its operation appeared a direct transit through this pait of the country to the General Government, that the War Department ordered a survey of the route, and but for the sudden termination of the war, a railway would have been built by the United States. Pressed by an increasing demand for its manufactures from its natural market, the South, and requiring in return the pro- ducts of that fertile region, the city of CINCINNATI has under- taken to accomplish, in the only available way at command, what has become an urgent need to its citizens. The General Assembly of the State of Ohio, on the 4th of May, 1869, passed an act authorizing the construction of a railway by the city, through a Board of Trustees, between two termini, one of which should be Cincinnati, the other to be named by the City Council, which designated Chattanooga. Said Trustees are empowered to borrow a fund for the purpose, and to issue bonds therefor, in the name of the city, not to exceed ten millions of dollars, with ample powers as to the time and place of payment. Said bonds were to be secured by a mortgage on the line of rail- way and its net income, and by a pledge of the faith of the city, and a tax which it is made the duty of the City Council to levy annually, sufficient with its net income to pay the interest and provide a sinking fund for the final redemption of its bonds. A provision of the act above named, required that the question of constructing the railway, and the issue of bonds for the pur- pose, should be submitted to the qualified electors of said city, and that a majority should decide. vi CINCINNATI SOUTHERN RAILWAY. In conformity, a special election was hold on the 26th of Jane, 1869, whereat were cast 15,435 ballots in favor of providing said line of railway on the part of the city, and 1,500 ballots against providing the same. Subsequently, some doubts having arisin as to the constitu- tionality of the act of the General Assembly, conferring on the city the power to construct a railway outside of the State of Ohio, the question was brought before the Superior Court of Cincinnati. The " conclusion " of the opinion of the Court of three judges, is in these words: "Upon the whole case, we hold that the act passed May 4, 1869, and the act of March 25, 1870, sup- plementary thereto, both of which are recited in the petition, are constitutional and valid, in which opinion we are unanimous." From this decision an appeal was taken to the Supreme Court of Ohio. That Court delivered an elaborate opinion, and " af- firmed the judgment of the Superior Court." The General Assembly of the State of Tennessee, passed an act January 20, 1870, entitled " An Act to authorize the exten- sion and construction of the Cincinnati Southern Railway, with- in the State of Tennessee," of which the following is an extract from the seventh section : " Tliat the respective holders of all such bonds, (viz : the bonds authorized by the Ohio act,) are hereby declared to be entitled to hold by way of mortgage, without any conveyance, the said line of railway and its appendages, and the net income thereof, and all the estate, right, title and interest of the said city of Cincinnati, and of the said Board of Trus- tees therein, until the respective sums mentioned in the said bonds and the interest thereon shatt be fully paid, without any preference one above another, by reason of priority of date of any such bonds, or of the time when such holder became th owner of the same, or otherwise howsoever. The mortgage lien hereby given is to vest as soon as rights of way or lands whereon are to be placed the works and conveniences used in constructing, maintaining or operating said railway are acquired, or taken by virtue of the powers of said Trus- tees." CINCINNATI SOUTHERN RAILWAY. Vll The General Assembly of the State of Kentucky passed an act February 13, 1872, entitled "An Act to authorize the Trus- tees of the Cincinnati Southern Railway, to acquire the right of way and to extend a line of railway through certain counties in this Commonwealth," and enacted the same provision above quoted from the act of the Tennessee Assembly. By a supplementary act passed April 18, 1873, the same provision was also enacted by the General Assembly of Ohio. These enactments give to the bondholders a statutory mortgage on the entire road and its appendages, without the intervention of Trustees. The country which this railway is intended to traverse, is rich in agricultural products the blue grass region of Kentucky is widely celebrated. It has many small towns and centers of popu- lation, which only need the facilities of the roai to be largely increased. The Cumberland hills are full of immense deposits of coal and iron. In Tennessee there are already several furnaces dependent now upon uncertain stages of water communication which will be vastly increased by railway means of transport. And it is note- worthy that every mineral road in the United States, is a paying road. But the chief purpose of this enterprise is to connect the system of railways north of the Ohio, with the system in opera- tion south of Tennessee, to which hitherto the mountains and a sparsely settled country have been barriers. In Ohio and Indiana on the north and leading directly to Cincinnati are 6,000 miles of railway. South of Tennessee and converging there, are 4,000 miles and this railway will be as the neck between them. It is estimated that the extent of country which will there- by become a market for our manufactures, and from which we shall draw its special products, embraces an area of about 200,000 square miles, and in the whole of it there is no large town, and to it there is no eastern or northern city so accessible as Cincin- nati. The success of the enterprise as a paying property seems to be assured from the start, but its advantage to Cincinnati is be- yond the whole investment proposed, as a means of business in- tercourse. Below we submit some facts regarding the position of the city of Cincinnati in connection with the loan proposed to be issued : The real property belonging to the city acquired from time to Vlii CINCINNATI SOUTHERN RAILWAY time, was assessed, at the last valuation in 1871, at $15,237,- 194.00. The present value of the same, is estimated by the city auditor at $19,000,000.00. The property assessed for taxation for the year ending June 30, 1872, was valued at $175,084,296, of which $119,621,880 was real estate, and $55,462,410 was personalty. The present city tax levy is 15.10 mills on each $100, which produced for the cur- rent year $2,673,773, the total amount levied for municipal pur- poses. The present bonded indebtedness of the city is $6,101 ,500, from which should be deducted balance of cash in Treasury $566,703. Of this debt the sum of $1,025,000 has been expended for water works which yield a gross income of $610,960 annually. A revenue of $79,428 per annum, is derived from public wharves, markets, licenses and fines. The rest of the bonded debt has been expended in hospitals, school houses, infirmaries, eto. The population of the city by the census of 1870, was 218,900, since which time there has been an increase, and if the cities of Covington and Newport in Kentucky on the opposite bank of the Ohio River, which are practically a part of Cincinnati, be taken into account, there is within a radius of three miles, a population of 275,000. The value of the imports, exports and manufactures of Cin- cinnati for the three years last past according to tables published by the Board of Trade, were as follows: Import*. Export*. Manufactures, 1870 $312,978,665 $193,517,690 127,459,021 1871 $283,796,219 $179,848,427 135,968,365 1872 $317,646,608 $200,607,640 143,480,075 The red lines in the accompanying map indicate surveys from which a line of route will be selected. MILES GREENWOOD, WILLIAM HOOPER, R. M. BISHOP E. A. FERGUSON, PHILIP HEIDELBACH, Trustees. CINCINNATI, June 1, 1873. OHIO -A.OTS Authorizing Construction of the RoacU THE FERGUSON ACT. >d NA. CT relating lo cities of the first class havlnff a papula* u tion exceeding one hundred and fifty thousand inhabitants* Passed May 4, 1869. SECTION 1. Be it enacted by the General Assembly of the State of Ohio, That whenever in any city of the first class having a population exceeding one hundred and fifty thousand inhabitants, the city council thereof shall by a resolution passed by a majority of the members elected thereto, declare it to be essential to the interests of such city that a line of railway, to be named in said resolution, should be provided between termini designated therein, one of which shall be such city, it shall be law- ful for a board of trustees, appointed as herein provided, and they are hereby authorized to borrow, as a fund for that purpose, not to exceed the sum of ten millions of dollars, and to issue bonds therefor in the name of said city, under the corporate seal thereof, bearing interest at a rate not to exceed seven and three-tenths per centum per annum, payable at such times and places, and in such sums, as shall be deemed best by said board. Said bonds shall be signed by the president of said board, and attested 10 CIHCIHHATI SOUTHERN RAILWAY. by the city auditor, who shall keep a register of the same, and shall be secured by a mortgage on the line of railway, and its net income, and by the pledge of the faith of the city, and a tax, which it shall be the duty of the council thereof annually to levy, sufficient, with said net income, to pay the interest and provide a sinking fund for the final redemption of said bonds ; provided that no money shall be borrowed or bonds issued until after the question of providing the line of railway specified in the resolu- tion shall be submitted to a vote of the qualified electors of said city, at a specified election to be ordered by the city council thereof, of which not less than twenty days notice shall be given in the daily papers of the city ; and further provided, that a majority of said electors, voting at such election, shall decide in favor of said line of railway. The returns of said election shall be made to the city clerk, and be by him laid before the city council, who shall declare the result by a resolution. The bonds issued under the authority of this section shall not be disposed of for less than their par value. SEC. 2. If a majority of the votes cast at said election shall be in favor of providing the line of railway, as speci- fied in the first section, it shall be the duty of the solici- tor forthwith to file a petition in the Superior Court of said city, or if there be no Superior Court, then in the Court of Common Pleas of the county in which said city is situate, praying that the judges thereof will appoint five trustees, to be called the trustees of railway, CINCINNATI SOUTHEfiN RAILWAY. 11 (the blank to be filled with the name given to the rail- way in the resolution), and it shall be the duty of said judges to make the appointment, and to enter the same on the minutes of the court. They shall enter into bond to the city in such sum as the court may direct, with one or more sufficient sureties, to be approved by the court, conditioned for the faithful discharge of their duties. The bond so taken shall be deposited with the treasurer of the corporation for safe keeping. SEC. 3. The said trustees and their successors shall be the trustees of the said fund> and shall have the control and disbursement of the same. They shall expend said fund in procuring the right to construct, and in construct- ing, a single or double track railway, with all the usual appendages, including a line of telegraph between the termini specified in the said resolution, and for the pur- poses aforesaid shall have power and capacity to make contracts, appoint, employ, and pay officers and agents, and to acquire, hold and possess all the necessary real and personal property and franchises, either in this State or in any other State into which said line of railway may extend. They shall also have power to receive donations of land, money, bonds and other personal property, and to dispose of the same in aid of said fund. SEC. 4. The said trustees sh.ill form a board and shall choose one of their number president, who shall also be the acting trustee, with such power as the board may by resolution from time to time confer upon him. A major- 12 CIKC1HNATI BOCTFIERK RA1I.WAT. ity of said trustees shall constitute a quorum, and shall hold regular meetings for the transaction of business at their office in the city under whose action they are ap- pointed, but they may adjourn from time to time to meet at any time and place they may think proper. They shall keep a record of their proceedings, and they shall cause to be kept a full and accurate account of their receipts and disbursements, and make a report of the same to the city auditor annually, and whenever- requested by a resolution of the city council. No money shall be drawn from said fund but upon the order of said board, except their own compensation, which shall be paid out of the same upon the allowance of the court appointing them, and shall be proportioned according to their re- spective services. SEC. 5. Said trustees shall have power to take such security from any oflicer, agent or contractor chosen, ap- pointed or employed by them, as they shall deem advisa- ble. They shall not become surety for any such officer, agent or contractor, or be interested directly or indirectly in any contract concerning said railway. They shall be responsible only for their own acts. SEC. G. Whenever the city solicitor of any city, under whose action a board of trustees has been appointed as herein provided, shall have reason to believe that any one of said trustees has tailed in the faithful performance of his trust, it shall be his duty to apply to the court that appointed said trustee by petition, praying that such CINCINNATI SOUTHERN RAILWAY. 13 trustee be removed, and another appointed in his place; and when a vacancy shall occur in said board from any other cause, it shall be filled in like manner. If the said city solicitor shall fail to make .application in either of the foregoing cases, after request of any holder of the bonds issued by said trustees, or by a tax payer of the corporation, such bondholder or tax payer may file a peti- tion in his own name on behalf of the holders of such bonds for like relief, in any court having jurisdiction, and if the court hearing the action shall adjudge in favor of the plaintiff, he shall be allowed, as a part of his costs, a reasonable compensation to his attorney. SEC. 7. Whenever in the construction of a line of rail- way, as herein provided, it shall be necessary to appro- priate land for the foundation of abutments or piers of any bridge across any stream within or bordering upon this State, or for any other purpose, or to appropriate any rights or franchises, proceedings shall be commenced and conducted in accordance with the act entitled "an act to provide for the compensation to the owners of private property appropriated to the use of corporations," passed April 3, 1852, and the acts supplementary thereto, except that the oath and verdict of the jury and the judgment of the court shall be so varied as to suit the case. SEC. 8. Whenever there shall be between the termini designated in any resolution passed under this act a rail- road already partially constructed, or rights of way acuuired therefor, which can be adopted as a part of the It CINCINNATI 80UTHKRN RAILWAY. line provided for in said resolution, the trustees of said line may purchase the said railroad and right of way, and pay for the same out of the trust fund. SEC*. 9- The said trustees shall have power, as fast as portions of the line for which they are trustees are com- pleted, to rent or lease the right to use and opera f e such portions upon such terms as they may deem b< st, but such rights shall cease and determine on the final com- pletion of the whole line, when the right to use and ope- rate the same shall he leased by them to such person or company as will conform to the terms and conditions which shnll be fixed and provided by the council of the city by which the line of railroad is owned. SEO. 10. The city council of any city passing a resolu- tion as provided in the first section, may appropriate and pay to the said trustees, cut of the general fund of said city, such sum as may be necessary for defraying the ex- penses of the election, and said sum shall be repaid out of Baid trust fund when raised. SEC. 11. This act shall take effect on its passage. F. W. THORNHILL, Speaker of the Haute of Repreitntativn. J. C. LEE, Prttidtnt of the St*t. . CINCINNATI SOUTHERN RAILWAY. 15 jlJV AC 7' supplementary fo the act relating to cities of the first class having a population exceeding one hundred and thousand inhabitants. Passed May 4, A. D. 1869. Passed March 25, 1870. SECTIOX 1. Be it enacted ~by the General Assembly of Hie State of Ohio, That the city council of any city of the first class, described in the act to which this is sup- plementary, may, after trustees have been appointed as provided in said original act, advance to said trustees out of any fund of said city such sum as may be necessary, not exceeding fifty thousand dollars, for carry- ing the object for which they are appointed into effect, and said sum shall be repaid out of the trust fund pro- vided for in said original act when raised. SEC. 2. This act shall take effect on its passage. A. J. CUNNINGHAM, Speaker of the House of Representatives. J. C. LEE, President of the Senate. 16 CINCINNATI SOUTHERN RAILWAY. jiWACTntj>p1cni<-ntftrr f<> " '/'/// acf rclatinff to eitiet of //if first cifias JidfiHff d jiojntlfifioii r.rm-iliiirf one Jntiuh-cd ami /i/tY thousand iiibfihUfnitt." Pnopprl Mmr 4 A l Passed April 18, 1873. SECTION 1. Beit enacted ly tie General Assembly oftlte Slate of OJtio, That the respective holders of all the bonds authorized to be issued by the act to which this act is supplementary, are hereby declared to be entitled to hold, by wny of mortgage, without any conveyance, the line of railway specified in the resolution of the city council and its appendages and the net income thereof, and all the estate, right, title and interest therein of the city and of the board of trustees of said line, until the respective sums mentioned in said bonds and the inter- est thereon shall be fully paid, without any preference one above another by reason of priority of date of any such bonds, or of the time when such holder became the owner of the same, or otherwise howsoever. The mort- gage lien hereby given is to vest, as fast as rights of way, or lands whereon the works and conveniences used in constructing, maintaining or operating said railway are acquired or taken by virtue of the powers of the said trustees. Said bonds may be made payable, both as to principal and interest, in gold or lawful money. SEC. 2. Deeds and contracts may be made, and pro- ceedings for appropriation and actions may be commenc- ed, either in the name of the city providing the line of railway, or in the name of the <; trustees of rail- CINCINNATI SOUTHERN RAILWAY, 17 way," (filling the blank with the name given to the rail. way in the resolution,) and said proceedings may be commenced and conducted either in the court of com- mon pleas or the probate court, as in other cases of ap- propriation for the use of municipal corporations. SEC. 3. If said trustees shall find it necessary for the purposes of the railway to use or occupy any street, alley, or other public way, space or ground, or any part thereof belonging to such city, they may take ami use, or occupy the same ; and if the municipal authorities having charge thereof shall require said trustees to provide a new street, alley or other way, space or ground, in place of that so used or occupied, they may acquire, by pur- chase or appropriation, the necessary land, and cause the necessary improvement to be made thereon. SEC. 4. In addition to the powers given to the said trustees in the act to which this is supplementary, they shall have power to contract for completing and leasing the whole line of railway for which they are trustees ; but no such contract and lease shall be made until they shall have prepared and submitted for inspection, as herein provided, a form of lease containing the conditions on which said line of railway will be let and held. After said form is prepared, it shall ba printed in full, and no- tice given by publication in two or more newspapers of general circulation in said city, that said trustees will attend at a stated time and place, with a printed copy, to hear such suggestions and objections as may be urged y? fy/' 18 CINCINNATI SOUTHERN RAILWAY. in regard to the proposed conditions. Such hearing shall be held for at least three days, and for such furtlu-r time as the trustees shall deem necessary. A certified copy of the form of lease which they may finally adopt shall be deposited with the city auditor, and thereafter no change shall be made in the conditions without a new notice and like hearing. SEC. 5. This act shall take effect on its passage. N. H. VAN VORIIEP, Speaker of the House of Repretentalives, JACOB MUELLER, President of the Senate. PROCEEDINGS IN Superior Court of Cincinnati. fleas at the city of Cincinnati, in the county of Hamilton and State of Ohio, in the Term of April, anno domini one thou- sand eight hundred aud seventy, of the Superior Coitrt of Cincinnati, held by the Hon. J\C. f B. Hagans, one of the Judges of the said court, in separcte session, sitting in room J^o. /, in the court 7iouse in the city of Cincinnati, county and State aforesaid. SUPERIOR COURT OF CINCINNATI. J. BRYANT WALKER, Solicitor of the city of Cincinnati and a tax payer of said city, Plaintiff, VERSOS The CITY OF CINCINNATI, CHAS. H. TITUS, Auditor, and WILLIAM HOOPER, MILES GREENWOOD, RICHARD M. BISHOP, PHILIP HEIDELBACH and ED- WARD A. FERGUSON, Trustees of the Cincinnati Southern Railway, Defendants. INJUNCTION AND OTHER RELIEF. Be it remembered that heretofore, to-wit : on the 12th day of April, A. D., 1870, came the above named plaintifl and filed in the office of the Clerk of this Court his certain petition and pi recipe against the above named defendants, clothed in the words and figures following, to-wit: 20 CINCINNATI SOUTHERN RAILWAY. SUPERIOR COURT OF CINCINNATI. No. 2ft,007. J. BRTANT WALKER, Solicitor of the city of Cincinnati and a tax payer of Baid city, VERSUS The CITY OF CINCINNATI, CIIAS. II. TITUS, Auditor, and WILLIAM HOOPER MILES GKKKNWOOD, HICIIAKH M. I!IMK>I>, run.ip HEIDELIUCII nnd ED- WARD A. FKROUBON, Trustees of (he Cincinnati Southern Railway. (Petition.) J. Bryant Walker states that he is the SoHeitor of the city of Cincinnati, and a tax pay or in the said city, and that by an act of the General Assembly of the State of Ohio, passed on the 4th day of May, eighteen hundred and sixty-nine, entitled "An act relating lo cities of the first class having a population exceeding one hundred and fifty thousand inhabitants," it was enacted in the first, second, third and fourth sections thereof, as follows : AN si C'J' relating to cities of the first class haying a popu- lation e.rceedint/ one hundred and Jijtj' thousand inhabi- t'tll/S. SECTION 1. Beit enacted by Hie General Assembly of the State of O/n'o, That whenever in any city of the first class having a population exceeding one hundred and fifty thousand inhabitants, the city council thereof shall by a resolution passed by a majority of the members elected thereto, declare it to be essential to the interests of such city that a line of railway, to be named in said resolution, should be provided between termini designated therein, one of which shall be such city, it shall be law- ful for a board of trustees, appointed as herein provided, and they are hereby authorized to borrow, as a fuiid for CINCINNATI SOUTHERN RAILWAY. 21 that purpose, not to exceed the sum of ten millions of dollars, and to issue bonds therefor in the name of said city, under the corporate seal thereof, bearing interest at a rate not to exceed seven and three-tenths per centum per annum, payable at such times and places, and in such sums as shah 1 be deemed best by said board. Said bonds shall be signed by the president of said board, and attest- ed by the city auditor, who shall keep a register of the same, and shall be secured by a mortgage on the line of railway and its net income, and by the pledge of the faith of the city, and a tax, which it shall be the duty of the council thereof annually to levy, sufficient with said net income to pay the interest and provide a sinking fund for the final redemption of said bonds; provided that no money shall be borrowed or bonds issued until after the question of providing the line of railway specified in the resolution shall be submitted to a vote of the qualified electors of said city, at a specified election, to be ordered by the city council thereof, of which not less than twenty days notice shall be given in the daily papers of the city ; and further provided, that a majority of said electors voting at such election shall decide in favor of said line of railway. The returns of said election shall be made to the city clerk, and be by him laid before the city council, who shall declare the result by a resolution. The bonds issued under the authority of this section shall not be disposed of for less than their par value. SEC. 2. If a majority of the votes cast at said election shall be in favor of providing the line of railway, as speci- fied in the first section, it shall be the duty of the solici- tor forthwith to file a petition in the Superior Court of said city, or, if there be no Superior Court, then in the 22 CINCINNATI SOUTHEnN RAILWAT. Court of Common Pleas, of the county in which said city is situate, piaying that the judges thereof will appoint five tnir-ttvs, to be called the trustees of railway (the blank to be filled with the name given to the rail- way in the resolution), and it shall be the duty of said judges to make the appointment, and to enter the same on the minutes of the court. They shall enter into bond to the city in such sum as the court may direct, with one or more sufficient sureties, to be approved by the court, conditioned for the faithful discharge of their duties. The bond so taken shall be deposited with the treasurer of the corporation for safe keeping. SEC. 3. The said trustees and their successors shall be the trustees of the said fund, and shall have the control and disbursement of the same. They shall expend said sum in procuring the right to construct, and in construct- ing a single or double track railway, with all the usual appendages, including a line of telegraph between the termini specified in the said resolution, and for the pur- poses aforesaid, shall have power and capacity to make contracts, appoint, employ, and pay officers and agents, and to acquire, hold and possess all the necessary real and personal property and franchises either in this State or in any other State into which said line of railway may extend. They shall also have, power to receive donations of land, money, bonds, and other personal property, and to dispose of same in aid of said fund. SEC. 4. The said trustees shall form a board and shall choose one of their number president, who shall also be the acting trustee, with such power as the board may, by resolution, from time to time confer upon him. A ma- jority of said trustees shall constitute a quorum, and shall CINCINNATI SOUTHERN RAILWAY. 23 hold regular meetings for the transaction of business at their office in the city under whose action they are ap- pointed, but they may adjourn from time to time to meet at any time and place they may think proper. They shall keep a record of their proceedings, and they shall cause to be kept a full and accurate account of their re- ceipts and disbursements, and make a report of the same to the city auditor annually, and whenever required by a resolution of the city council. No money shall be drawn from said fund but upon the order of said board, except their own compensation, which shall be paid out of the same upon the allowance of the court appointing them, and shall be proportioned according to their re- spective services. That afterwards on the 4th day of June, in the year aforesaid, the City Council of the city of Cincinnati, re- citing in a preamb'e the powers conferred in the first section -of the said act, and that the said city of Cin- nati, in the State of Ohio, was a city of the first class, having a population exceeding one hundred and fifty thousand inhabitants, resolved in pursuance and by vir- tue of the powers in said act given (a majority of all the members elected thereto concurring) as follows : First. That the said City Council hereby declares it to be essential to the interests of the said city of Cincin- nati, that a line of railway, to be named " The Cincin- nati Southern Railway," shall be provided between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee. Secondly. That a special election be held on Saturday, the 26th day of June, 18G9, at which election the ques- tion of providing the said line of railway shall be sub- J I CltfCINlf ATI SOtTTnEnJI RAILWAY. mitted to a vote of the qualified electors of the said city ; and the City Clerk is hereby directed to cause to be printed a sufficient number of two sets of ballots (not less than one hundred thousand of each set) for use at each voting place, upon one of which sets shall bo print- ed: * Special election to decide for or ayiiin+t j>ro- viding a line of railway between Cincinnati, Ohio, and the city of Chattanooga, State of Tennessee. FOR PROVIDING SAID LINE OP RAILWAY." And upon the other set shall be printed : " Special election for or against providing a line of railway between Cin- cinnati, Ohio, and the city of Chattanooga, State of Tennessee. AGAINST PROVIDING SAID LLNE OF RAIL- WAY." Thirdly. That the Mayor of the said city of Cincin- nati be, and he is hereby directed to issue his proclam.i- tion to the qualified voters of said city, giving notice of said special election, and of the time and places of hold- ing the same, and that said proclamation be published in the daily newspapers of said city, at least twenty days before said election. Said election shall be held at the usual places of voting at municipal elections in each ward, and shall be conducted in the manner prescribed by law for holding municipal elections. The returns of said election shall be made to the City Clerk, and shall by him be laid before the City Council, who shall declare the re- sult by a resolution. That in pursuance and by virtue of said resolutions the lion. John F. Torrence, Mayor of the said city of Cincinnati, did by his proclamation published in all the daily newspapers of said city for more than twenty days prior to the day of said special election, give notice to the CINCINNATI SOUTHERN RAILWAY. 25 qualified electors of said city that a special election to decide for or against providing the said line of railway would be held on Saturday, the 26th day of June, A. D., 1869, and that polls would be open at the usual places of voting at municipal elections in each ward, between the hours of six o'clock in the morning and six o'clock in the evening of said day. That afterwards, to-wit : on the 28th day of June, in the year 1869, the said Mayor sent his message to the City Council of the said city of Cincinnati, certifying under his hand and the corporate seal of the said city, that he had given notice of the time and place of holding the said special election, as above stated, and the City Clerk of said city laid before the said City Council, at a meeting thereof, duly convened on said last mentioned day, the returns of said election ; whereby it appeared that at said special election there were cast fifteen thou- sand, four hundred and thirty-five (15,435) ballots of the qualified electors of said city, for providing said line of railway, and fifteen hundred (1,500) ballots against providing said line of railway. Whereupon the said City Council declared by a resolu- tion that the result of said special election was that a majority amounting to thirteen thousand nine hundred and thirty-five of the votes cast at said special election was in favor of providing said line of railway between the said city of Cincinnati, Ohio, and the said city of Chat- tanooga, in the State of Tennessee. That thereafter the city of Cincinnati filed in the Superior Court of Cincinnati, in cause No. 24,749, in the said Court on the 30th day of June, 1869, a petition reciting the facts set forth above, and praying for the ap- 3 26 CINCIHXATI iOOTDERV RAILWAY. pointment of five trustees, to be called the Trustees of the Cincinnati Southern Railway, with all the powers given in the above recited act, and that their appoint- ment l>e entered on the minutes of the said Court, as the act provides. That on the said 30th day of June, 1869, the fol- 1 \ving order was made and entered upon the minutes of the said Court : In the natter of the application of the city of Cincinnati for the ap- pointment of the Tiuateesof the Cincinnati Southern Railway. The petition of the city of Cincinnati, by J. Bryant Walker, City Solicitor for said city, having ln-.-n filed in this Court, praying that the judges thereof would appoint five trustees, to be called the Trustees of the Cincinnati Southern Railway, with the powers given in the act of the General Assembly of the State of Ohio, passed on the 4th day of May, in the year 18G9, entitled "An Act re- lating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants." And the Court and the Judges thereof being sati>lird, and finding that all the statements made in the said petition are true in substance and in fact, hereby appoint Itichnrd M. Bixhnp, Edward A. Ferguson, Miles Green- wood, J'/n'li/t Ileidelbach and William Hooper, to be Trustees of the Cincinnati Southern Railway, with the powers given in the act aforesaid, and order that the siul Trustees severally enter into bond to the said city of Cin- cinnati, in the sum of one hundred thousand dollars with four sureties each, to be approved by the Court, con- ditioned for the faithful discharge of their duties. And it is also ordered that upon giving bond as aforesaid, the CINCINNATI SOUTHERN RAILWAY. 27 Clerk of this Court deliver a certified copy of this order to each of said Trustees as the evidence of his appoint- ment. And afterwards, to wit: on the 3d day of July, in the term and year last aforesaid, the following entry was made in said cause on the journal of said Court, to-wit: (Min. 5018. Bonds Approved.) This day came the Trustees of the Cincinnati Southern Railway, who were heretofore appointed, and presented their said bonds with the following named persons : 1 As sureties for Richard M Bishop, as Trustee aforesaid, Carlos IT. Gould, William S. Dickinson, James A. Frazer and Win. Glenn. 2 As sureties for Edward A. Ferguson, as Trustee aforesaid, Charles W. West, Anthony D. Bullock, Ileury Lewis and John Schiff. 3 As sureties for Miles Greenwood, as Trustee afore- said, Robert Mitchell, Lewis Worthington, William Woods, Joseph C. Butler and Peter Gibson. 4 As sureties for Philip Heidelbach, as Trustee afore- said, Jacob Seasongood, Jacob Elsas, Abram Akerland and Samuel Thoruer. 5 As sureties for William Hooper, as Trustee afore- said, Learner B. Harrison, Leverett G. E. Stone, David 11. Ta} lor and Thomas R. Biggs. And the Court being satisfied that such sureties are sufficient, approve the said bonds with sureties afoivwiid, and order that the City Solicitor receive and deposit said bonds with the Treasurer of the said city of Cincin- nati, as provided by the statute. I> 4 CINCINNATI SOUTHERN RAILWAY. Thereupon the said Trustees appeared in open court and were duly sworn to discharge their duties as trustees as aforesaid. And afterwards, to-wit : on the 8th day of July, A. D. 180 9, there was filed in the office of the Clerk of said Court a certain receipt clothed in the words and figures following, to-wit : (Receipt of Citj Treasurer for Bonds.) ClTT OF Cl!fCI!!ATI, ) Treasurer's Office, July 6, 1869. ) Receired of J. Bryant Walker, city solicitor, the bonds of the following mamed Trustees of the Southern Railway ; "WILLIAM HOOPER, MILES KEEN WOOD, R. M. BISHOP, P. IIEIDELBACH, E. A. FERGUSON. Filed in the City Treasurer's office, according ROBERT MOORE, City Treasurer. That on the 6th day of July, 1809, they met and chose Miles Greenwood President, and appointed Henry II. Tatem Secretary, and ordered that their office he kept at the rooms of the Board of Trade of Cincinnati, in Pike's Opera House Building, and that their regular meeting be held on the first Tuesday of each month, at 3 P. M. That since the last mentioned date they have procured the consent of the State of Tennessee to the construction and maintenance of the said line of railway, and to the exercise of the powers vested in them as aforesaid in said State, and have made application for a like consent from the Commonwealth of Kentucky, in which latter State, however, no grant has yet been made. CINCINNATI SOUTHERN RAILWAY. 29 That for the purpose of further enabling the Trustees appointed under said act of May 4th, 18G9, to carry into effect the purposes of such act, the General Assembly of the State of Ohio, on the 25th day of March, 1870, passed the following act: jiJV ACT supplementary to the act relating to cities of the Jirsf class having a population exceeding one hundred and Jijty thousand inhabitants. Passed May 4, A. D. 1809. SECTION!. B e it enacted by Hie General Assembly of the State of Ohio, That the city council of any city of the first class described in the act to which this is supple- mentary, may, after trustees have been appointed, as pro- vided in said original act, advance to Laid trustees out of any fund of said city, such sum as may be necessary, not exceeding fifty thousand dollars, for carrying the object for which they are appointed into effect, and said sum shall be repaid out of the trust fund provided for in said original act, when raised. SEC. 2. This act shall take effect on its passage. That thereupon, upon the 2d day of April, 1870, the City Council of the city of Cincinnati passed an ordinance advancing the sum of $50,000 out of the interest fund, to be paid to the said Trust 3cs as a loan, to be repaid out of the proceeds of the first bonds sold. That Charles IL Titus is the Auditor of the city of Cin- cinnati, and that a portion of the funds so appropriated are still unpaid, and that he will pay the same unless re- strained by the Court. Plaintiff submits to the Court that the statutes of the State of Ohio above recited, are unconstitutional and 30 CINCINNATI SOUTHERN RAILWAY. void, and that the advance of such money is a misappli- cation of the funds of the corporation and in contraven- tion of the laws governing the samo, and is not proper corporate use. Wherefore plaintiff prays the Court to enjoin the pay- ment of and money so appropriated, and for such other relief as may be equitable and just. J. BRYANT WALKER, Solicitor. STATE OF OHIO, 1 Hamilton County. ] **' J. Bryant Walker on oath says that the facia set forth in tb abore petition are true. J. BRYANT WALKER. Subscribed in my presence and sworn to before me by said affiant this llth day of April, 1870. [K. P. SEAL.] J. W. WASHINGTON, Notary Public. SUPERIOR COURT OF CINCINNATI. (Praecipe.) J. BRYANT WALKER, Solicitor of Cincinnati, and a tax payer of said city, Plaintiff, VERSUS CITT OF CINCINNATI, CHAS. H. TITUS, Auditor, and WM. HOOPER, MILES GREENWOOD, K. M. BISHOP, P. HEIDELBACU and E. A. FEBOUSON, Trus- tees of the Cincinnati Southern Railway, Dtftudanis. To Clerk: Issue summons to each of the above named defendants, and endorse on summons: For injunction and other relief. WALKER & CONNER, Solicitort. Whereupon, on the 12th day of April, A. D. 1870, there ^as issued from the office of the Clerk of said Court a cer- tain summons, directed to the Sheriff of Hamilton county, clothed in the words and figures following, to-wit; CINCINNATI SOUTHERN RAILWAY. 31 SUPERIOR COURT OF CINCINNATI. (Summons.) THE STATE OF OHIO, Hamilton County, City of Cincinnati. To the Sheriff of the County of Hamilton: You are commanded to notify the city of Cincinnati, Chas. II. Titus, Auditor, and Win. Hooper, Miles Green- wood, R. M. Bishop, P. Heiclelbach, and E. A. Ferguson, Trustees of the Cincinnati Southern Railway, defendants, that they have been sued by J. Bryant Walker, Solicitor of the city of Cincinnati, and a tax payer of said city, plaintiff, in the Superior Court of Cincinnati, and that unless they answer by the 14th day of May, A. D. 1870, the petition cf the said plaintiffs against them, filed in the Clerk's office of said Court such petition will be taken as true, and judgment rendered accordingly. You will make due return of this summons on the 25th day of April, A. D. Ib70. Witness my hand and the seal of said Court at Cincin- nati, this 12th day of April, one thousand eight hundred and seventy. [SEAL.] H. H. TINKER, Clerk of the Superior Court of Cincinnati. By EyiL HOFFMAN, Deputy. Which summons is endorsed as follows, to-wit : (Endorsed.) Summons in action for injunction and other relief. To 25th day of Apiil, 1870. WALKER & CONNER, Attorney i. And afterward, to-wit: on the 25th day of April, A. D. 1870, came the said Sheriff and duly returned the fore- going summons, with his return thereon endorsed, clothed in the words and figures following, to-wit : CINCINNATI SOUTHERN RAILWAY. (Return.) 1870. April 12. Served city of Cincinnati by deliv- ering true copy to John F. Torreuee, Mayor, personally. Served Cbas. II. Titus, Auditor, with copy personally. 1870. April 13. Served Win. Hooper, P. Ileidelbach and E. A. Ferguson, each with copy personally. Served Miles Greenwood and 11. M. Bishop, each, by leaving copy at his residence, Trustees of the Cincinnati Southern Railway. D. WEBER, Sheriff. By I. H. BIRD, Deputy. And afterward, to-wit : on the 18th day of April, A. D. 1870, came the said defendants by their Attorney, E. A. Ferguson, and filed in the oitice of the Clerk of said Court their certain demurrer, clothed in the words and figures following, to-wit : SUPERIOR COURT OF CINCINNATI. No. 26,007. J. BRYANT WALKER, Solicitor of the City of Cincinnati and a tax payer of said city, Plaintiff, AGAINST THE CITY or CINCINNATI, CHABLES II. TITUS, Auditor, WILLIAM HOOPER, MILKS GREENWOOD, R. M. Ihwiiop, I*. HUDKLUACU and . A. FERGUSON, Trustees of the Cincinnati Southern Railway. Dtjtndanit. (Demurrer of defendants.) The defendants above named come and demur to the petition of the plaintiff and for cause assign: That the facts stated in said petition do not constitute a cause of action against them or either of them. E. A. FERGUSON, Attorney of CINCINNATI SOUTHERN RAILWAY. 33 And thereupon, to-wit : on the 18th day of April, in the term of April, A. D. 1870, of said Court, the following order of reservation was made and entered in said action, to-wit : SUPERIOR COURT OF CINCINNATI. No. 26,007 J. RBYANT WALKER, City Solicitor and a tax payer of said city of Cin- cinnati, Plaintiff, AGAINST THE CITY or CINCINNATI AND OTHERS. Defendants.. (Entry of reservation. Min. 87.) It is ordered that the questions of law arising upon the demurrer of the defendants to the plaintiff's petition be reserved and adjourned for the decision of the Court in general term. And the cause was removed to the general term of the Superior Court of Cincinnati upon the above recited order of reservation. SUPERIOR COURT OF CINCINNATI. No. 26,007. General Term. No. 1,508. fleas at the City o/ Cincinnati, in the county o/ Hamilton, State of Ohio, in the General Term of January, an/to do mini one thousand ciyht /t tut tired and seventy-one, of the Superior Court of Cincinnati, held by the Jlonorables 'Bel- lamy Storer, jilphonso 'J'ajt end . I/. /:. Jfayans, Judges of the said court, sit tint/ in 'Jtoom JVb, 3, in the court house, in the city of Cincinnati, county and State aforesaid, the Jlon. J/. .2?. And now, to-wit: on the 4th day of January, A. D. 1871, in the term and year last aforesaid, the following entry was made on the journal of said court, to-wit : 34 CINCINNATI SOUTHERN RAILWAY. J. BRYANT WALKKB, Solicitor of the city of Cincinnati, ami a tax payer of said city, Plainti/, AGAINST THF. PITT OF PixrixsATr PIMM,*" H Tirrs, AiHitor, and WILLIAM HOOPEE, MILKS (IKKKN \voon, n. M. BISHOP, P. HEIUELBACU and . A. FERGUSOX Trustees ot the Ciuciunati Southern Railway. Dejtndanit. (Judgment entry. Min. 2.) This cause came on to be heard upon the petition, and the demurrer of the defendants thereto, upon considera- tion whereof the Court find that said demurrer is well taken, and sustain the same. It is, then-fore, ordered and adjudged that the plain' iff's petition be dismissed, and that the defendants recover their costs herein to be taxed. SUPERIOR COURT OF CINCINNATI. THE STATE OF Onio, JJamilt Olll.i, 1 on County, \ set. City of Cincinnati. ) I, TI. II. Tinker, Clerk of the Superior Court of Cin- cinnati, do hereby certify the above and foregoing to be a full, correct and complete record of all the proceedings and judgment had in the case wherein J. Bryant Walker, Solicitor of the city of Cincinnati and a taxpayer of said city, was plain tiff, and city of Cincinnati, Chas. II. Titus, Auditor, Win. Hooper, Miles Greenwood, R. M. Bishop, P. Ileidel'^ach, and E. A. Ferguson, trustees of the Cin- cinnati Southern Railway, were defendants, No. 26,007, as the same appears from the files and journals of said Court in my office remaining. Witness my hand, and the seal of said Court, at Cin- cinnati, this llth day of January, A. D. 1871. [SEAL] II. II. TIXKKR. Clerk of the Superior Court of Cincinnati. CINCINNATI SOUTHERN RAILWAY. 35 OPINION OF THE SUPERIOR COURT OF CINCIN- NATI. In General Term, January 4, 1871. J. BRYANT WALKER, Solicitor of the city of Cincinnati, and a Taxpayer of said city, Plaintiff, THE CITY OF CINCINNATI, CHAS. H. TITUS, Auditor, and WILLIAM HOOPER, MILES GREENWOOD, RICHARD M. BISHOP, PHILIP HEIDELBACH and E. A. FERGUSON, Trustees of the Southern Railway, Defendants. TAFT, J. : This suit is brought for an injunction against the city and the Trustees of the Cincinnati Southern Railway. The petition recites the act of the 1 egisla- ture, passed May 4, 1869, to authorize the appointment of trustees and the construction of the road, and the issuing of bonds of the city to the amount of ten mil- lion dollars fur that purpose; alleges the appointment of the trustees under the act, and recites the proceedings of this Court, as recorded, in relation to said appointment, stating that the Trustees have organized and obtained an office ; that they have procured the consent of the Legis- lature of Tennessee to build the road through that State, and applied to the Legislature of Kentucky for a like consent ; that the Ohio Legislature have passed another act, of March 25, 1670, supplementary to that of May 4, 18G!), authorizing the city to advance fifty thousand dollars to the Trustees for the purpose of carrying into effect the object of their appointment, to be repaid out of the bonds to be issued under the original act ; that the Auditor has appropriated a portion of said fund, arid 3G CINCINNATI SOUTHERN RAILWAY. there remains a part unappropriated ; that the acts above mentioned arc unconstitutional and vois been held by our Supreme Court that the con- struction of a railroad might be a proper subject for the taxation of a municipal corporation, independent ol) and CINCINNATI SOUTHEBN RAILWAY. 37 prior to, the restriction in our present constitution, and the issue of bonds and the levy of taxes to pay the in- terest on them, was enforced by a writ of mandamus since the constitution of 1851 was adopted, the act un- der which the subscription was made having been passed prior to the change in the constitution. If the con- struction of a railroad had been a purpose beyond the scope of municipal taxation, the restriction in the new constitution upon the power of a city to lend its credit or otherwise assist a private corporation in its con- struction, would not have been required. The form in which such aid was granted, usually, was by lending bonds or money to the corporation which was constructing it, or by subscribing to its capital stock. The railroad company was a private corporation, and operated its road for its own profit, but the public derived large incidental advantages from its use. In this State, it has been several times decided, that a municipal cor- poration had an interest in such a work to justify a mu- nicipal tax to aid in carrying it through. (2 0. S. 607 647,649; 140.8.472,479.) If, then, the restriction in the present constitution against the aiding or subscribing to the stock of railroad companies by towns, cities, and counties had been omitted the Legislature might have authorized such aid to rail- road corporations. (Cassvs. DiUon,2 0. S. 608; Cin- cinnati, Wilmington & Zanesville Railroad Com- pany vs. Commissioners of Clinton County, 1 0. S. 77; Jfosdick vs. Village of Perrysburg, 14 0. S. 473.) It evidently follows, from these repeated adjudications, 88 CINCINNATI SOOTHER!* IUILWAT. that, if the Legislature, under the old Constitution, in- stead of authorising municipal corporations to aid piivate corporations in constructing railroads, by the issue of bonds, or subscription to the capital stock of such com- panies, h.-rl authorized a city itself to construct a rail- road deemed of public importance to such city, and in- dispensable to its welfare, it would have been constitu- tional. The same reason would have justified both methods of securing the same object. It would have been at least as constitutional to have authorized the city to build the road, as to have authorized it to lo m money to a private corporation, in order that it might build it. By the latter plan, the accomplishment of a public purpose through the application of the public fund , uas left dependent upon the good faith and discre- tion of a private corporation, whose legitimate object was profit to its individual stockholders. This has long been regarded as objectionable. The restriction in the present constitution which is sup- posed to prohibit the act authorizing the city of Cincin- nati to build its Southern Railroad, is contained in the sixth section of the eighth article, which provides "that the General Assembly shall never authorize any count v, city, town, or township, by a vote of the citizens or other- wise, to become a stockholder in any joint stock com- pany, corporation, or association whatever, or to rai>e money for, or to loan its credit to, or in aid of any such company, corporation, or association." This restriction plainly cuts off the power to authorize cities to loan their credit to railroad companies or take stock iu them. The power to authorize the city itself to CINCINNATI SOUTHERN RAILWAY. 39 construct such an improvement, however, is not men- tioned. By the fourth section of the same article, it is provided, that "the credit of the State Khali not, in any manner? be given or loaned to, or in aid of, any individual, associ- ation, or corporation whatever, nor shall the S'ate ever hereafter become a joint owner or stockholder in any com- pany or association in this State or elsewhere, formed for any purpose whatever." Prior io the adoption of the constitution, "it was com- petent for the Legislature, under the constitution of 1802, to cons' ruct works of improvement on behalf of the State," as did the Ohio canal, * or to aid in. their con- struction, by subscribing to the capital stock of a cor- poration for that purpose," as it did in the case of the Cincinnati and Whitewater Canal Company," and to levy taxes to raise the means, or by an exercise of the same power to authorize a county or township to subscribe to a work of that character running through or into such county or township, and to levy a tax to pay the sub- scription," as was held in the case of C. W. tt; Z. R.JK. Com puny vs. Clinton County, 1 0. S. R. li., 77, and S. < 7. R. R. Company vs. North Township, 1 0. S. R., 105 ; also several other cases, as 1 O. S. R., 153; 2 0. S. R., 608 ; 7 0. S. R., 327; 8 0. S. R., 394 ; 14 0. S. R., 482, 479, and still in other cases, which need not be cited, but which leave no doubt on this question, in the State of Ohio. Nothing can be clearer than that this restriction upon the State is limited to its loaning its credit to companies or corporations, and to its " becoming a stockholder in any company." It can not be contended that the pro- 40 CINCINNATI SOUTHERN RAILWAY. vision intended to prohibit the State itself from accom- pirsliing directly, "any purpose whatever." The extent of the restriction is that the State shall neither lend its funds to, nor become a member of, a private corporation for any purpose whatever. Its power to make necessary public improvements without the agency of corporations remains as it was before ; and what it was before, we have seen, was not doubtful. We feel bound to give a like construction to the sixth section, which applies to cities. They can not be authorized now, as formerly, to lend their funds or their credit to, or to becoire members of trading corporations, for any purpose whatever. But they can be authorized to expend their own funds in making necessary public improvements, in the same man- ner and to the same extent as before the adoption of our present constitution. In our opinion it follows logically, and unavoidably, from the decisions of our own State, and indeed from the current of authorities in other States, that these acts are constitutional. Upon a careful examination of our present constitution and a comparison of it with the constitution of 1802, and the adjudications of our courts under it, the case appears to our minds clear of doubt. I however, the case were doubtful, we should not be justified in pronouncing the acts of the Legislature void. The presumption must always be in favor of the validity of the laws enacted by the State Legislature, if the con- trary is not clearly demonstrated. The incompatibility must be clear, to warrant the set- ting aside of an act of the Legislature duly passed. C. W. & Z. JK. -Z2, vs. Commissioners of Clinton county, CINCINNATI SOUTHERN RAILWAY. 41 1 0. S. R. 823; Lehman vs. McBride, 15 0. S. R. 591 ; 10 0. R. 235 ; 11 0. S. R. 641. In Lehman vs. Me Bride, our Supreme Court de- clared ''that while it was the right and the duty of judicial tribunals to give full force and effect to the or- ganic law of the State, and, therefore, to declare null and void any attempted acts of legislation which contravene the limitations imposed by the constitution upon Legis- lative power, yet such judicial interference can not be justified in doubtful cases." Such is the uniform current of judicial authority. Mr. Cooley, in his work on Constitutional Limitations, lays down the same rule, pp. 87 and 88. It was said in the case of Sharpies,* vs. Philadelphia, 21 Penn. St. R. 164, which arose from an attempt to resist a tax levied to pay a railroad subscription, that an act resting in the discretion of the Legislature will be pronounced void, "only when it violates the constitution, palpably, plainly and in such a manner as to leave no doubt or hesitation in our minds. And in Cheney vs. Ifooser, 9 B. Monroe, 345, the Court declared that a " tax must be considered valid, un- less it be for a purpose in which the community taxed has palpably no interest" We are at liberty to use our judgment as to what is judicious for the State to enact, or for the people of the city to vote. Can we assume judicially that the people of this city have no interest in the Southern Rail- road, contrary to the solemn act of the Legislature, whose duty it was to pass on this very question, and contrary to the vote of the people ? Is this a case in which we can hold that the State Legislature has clearly gone beyond its authority? We think not. 42 CINCINNATI SOUTHERN BA1LWAT. The objection has been suggested that the Southern Railroad i> to extend a great distance from Cincinnati, and beyond the limits of the State of Ohio. The objection Is plausible. But power has often been granted to cities to operate beyond their corporate limits in order to secure something essential to their welfare. The city of New York was authorized to bring the water of the Croton ii\cr, a distance of forty miles, at a cost of 11,000.000; nor can we suppose that the exercise of such authority for such a purpose would have been prevented, if the Croton aqueduct had crossed the line of a State. Cincinnati has, in several instances, exercised authority granted by the Legislature to make costly improvements beyond the corporate limits. The House of Refuge was built under such a law. The Infirmary was beyond its limits, also the Work-house The city was authorized to expend funds in the pur- chase of stone coal in the mines which are not located within the corporation, but in different States, "and in all the necessary agencies for the procuring, transporting, delivery of said coal," to the city, for the purpose of pro- tecting the cities against exorbitant prices in the times of scarcity. Cincinnati, under a law of the Legislature, loaned to the Ohio & Mississippi Railroad Company, whose improve- ment lay piincipally beyond and outside of the State of Ohio, a large sum of money, and afterwards exchanged its bonds for the stock of the company. Under a like law of the Legislature, the city of Cincin- nati has alreidy invested 150,000 in the railroad from Cincinnati to Lexington, in the same general direction as that contemplated for the Southern Kailroad, and alto- gether outside the State of Ohio. CINCINNATI SOUTHERN RAILWAY. 43 If there were a lake of good water on the south side of the Ohio river, and if the Legislature and the city itself were of the opinion that the welfare of the city required that an aqueduct should be constructed by the city to draw pure and wholesome water from that source, and the proper legislation were had in Ohio and Kentucky, it can not be doubted that the city could raise the money by taxes under the authority of such legislation, to do the work. The fact that it is expected that the Southern Railroad will extend beyond the State line a much longer distance, or that it is not water which is to be drawn by it to Cin- cinuati, does not change the principle. We do not say that this principle could not be so abused as to require the interposition of the judiciary to restrain it. But we have no evidence on which we can so find in the present case. The opinion of Judge Cooley in the case of the Peo- ple vs. Salem, in the Supreme Court of Michigan, is not inconsistent with the decision we now make. That opinion decided that the levy of a tax to raise money to give to a railroad company either by loan, or by subscrip- tion, to the capital stock, to help construct its road, is not a proper use for the taxing power, because it is giving the public fund to a private corporation. 9 Am. Law Reg. 487. It has no application to a case \vhere the municipal corporation itself constructs a public work essential to its own welfare, as the learned Judge has himself declared in an opinion published since that decision, in which he says " that the power of cities in Ohio to construct works of internal improvement, with Legislative permission, has 44 CIWCINMATI SOUTHERN BAILWAT. been settled by judicial decision," and "that there is nothing in the present constitution of Ohio designed to prevent the local authorities from levying taxes for the construction of railroads where their own agencies are employed for the work." Indeed, the opinion coincides entirely with that which we have expressed. Nor is the case of Whiting vs. The Sheboygan Railroad Company in the Supreme Court of Wisconsin, as published in 9 Am. Law Reg. 15G, in conflict with our opinion as now announced. In that case, Dixon, Judge, giving the opinion of the Court, held that a municipal corporation could not, under the constitution of that State, loan its funds to a railroad corporation, although he expressed the opinion that it might subscribe to the capital stock of the company, be- cause it became to that extent owner of the improvement, and such ownership made it public property. It is not necessary that we should consider any such distinction. But we may add that we have found no authority, and have been referred to none, inconsistent with the principles we have expressed. Upon the whole case, we hold that " the act relating to cities of the first class, having a population exceeding one hundred and fifty thousand inhabitants," passed May 4, 1869, and the act of March 25, 1870, supplementary thereto, both of which are recited in the petition, are con- stitutional and valid in which opinion we are unanimous. STORER, J. It might be supposed in a case of so much importance, that-each of the Judges would announce an opinion ; but Judge Taft had so exhausted the subject, and given the individual views of his associates so fully, combining them with his own, that it is scarcely neces- CINCINNATI SOUTHERN RAILWAY. 45 sary they should do more than to subscribe to his opin- ion. There was one idea, however, it might be proper to re- fer to here, by the way of illustration, as it was suggested when the case was before the judges in the consultation room. Suppose it was necessary to build a bridge across the Ohio river at this point, could not the Legislature authorize the city of Cincinnati to build it, provided the State of Kentucky would permit the abutments on that side to be put up ? It did not appear to the Court there could be any doubt on that point HAGANS, P., J. The present case has been under ad- visement with the general term, since the month of Octo- ber ; the whole subject has been most carefully considered, in view of the magnitude and importance of the questions involved, as well as the discussion of them that has been had, not only before the Court but elsewhere. The result reached is entirely satisfactory to each member of the Court IN THE Supreme Court of Ohio. , f#7f. HON. JOSIAH SCOTT, Chief Justice, and HON. JOHN WELCH, HON. WILLIAM WHITE, HON. LUTIIER DAY, and HON. GEORGE MC!LVAINE, Judges. J. BRYANT WALKER, Solicitor of the city of Cincinnati, and a tax payer of said city, Plaintiff, VERSUS THE CITT OF CINCINNATI, CHAS. H. TITUS, Auditor, and WILLIAII HOOPKR, MILES GREENWOOD, RICHARD M. BISHOP, PHILIP HXIDELBACH and . A. FERGUSON, Trustees of the Southern Railway, DtfendanU. ERROR TO THE SUPERIOR COURT OF CINCINNATI. 1. Courts can not nullify an act of Legislation on the vngue ground that they think it opposed to a general latent ipirit, supposed to pervade or underlie the constitution, but which neither its terms nor its implica- tions clearly disclose. 2. It is well settled in this State, by repeated adjudications, that, inde- pendent of constitutional prohibitions, il is within the legitimate scope of legislative power to authorize a city to aid in the construction of rail- roads or other public improvements in which such city has a special interest, and to impose taxes upon its citizens for that purpose. 3. It follows that it is equally competent for the Legislature to author- ize the entire construction of such improvements by a city having a spe- cial interest therein, and to empower the local authorities to provide means therefor by the taxation of its citizens. 4. Where the authority given is to construct a line of railroad having one of its termini in such city, it does not affect the question of power, that the road when constructed will lie mainly outside of the State of CINCINNATI SOUTHERN RAILWAY. 47 Ohio. It is the corporate interest of the municipality which determines her right of taxation, and not the location of the road, which may well be constructed with the consent of the State into or through which it may pass. 5. The authority and duty to prevent an abuse of the powers of taxa- tion and assessment by municipal corporations, is entrusted by the con- stitution to the General Assembly, and not to the courts of the State. And 'the power of the Legislature to authorize local taxation can not be judicially denied on the ground that the purpose for which it is exercised is not local, unless the absence of all special local interest is clearly apparent. C. The act of the General Assembly of this State, passed March 4, 1869, entitled : " An Act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants," is not in conflict with the provisions of the constitution in any of the following respects: The conferring of authority on the Judges of the Superior Court of Cin- cinnati, to appoint trustees to carry out the purposes of the act, is not the exercise of an appointing power by the General Assembly, which article 2, section 27, of the constitution forbids. It is not the creation of a new ofEce, but the annexing of a new duty to an existing office. For the same reason it is not in conflict with article 4, section 14, which prohibits Judges of the Supreme Court and the Court of Common Pleas from holding any other office of profit or trust under the authority of this State or the United States. The duty imposed upon the Court by this act is of a judicial character. Nor does the act conflict with article 2, section 20, of the constitution, which requires the General Assembly, in cases not provided for in the constitution, to fix the term of office and the compensation of all officers. The Trustees for whose appointment it provides, are not pub ic officers within the meaning of this provision. And finally the act violates neither the express nor clearly implied pro- hibitions of article 8, section 6, which delares : "The General Assembly shall never authorize any county, city, town or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money, or loan its credit to, or in aid of any such company, corporation or association." Messrs. STALLO & KITTREDOE, and SCRIB.VKR & HUED, for the plaintiff. Messrs. HENRY STA.VBKRY, W. B. CALDWELL, STANLEY MATTHEWS & E. A. FEKGUSOX, lor the defendant*. 48 CINCINNATI SOUTHERN RAILWAY. OPINION OF THE COURT.* SCOTT, C., J. The question presented by this case is as to the constitutionality and validity of the act of the General Assembly of this State, passed iMarch 4th, 18G9, entitled "An act relating to cities of the first class hay- ing a population exceeding one hundred and fifty thou- sand inhabitants." The general scope and purpose of the act is to au- thorize any such city to construct a line of railroad lead- ing therefrom to any other terminus in this State or in any other State, through the agency of a board of trus- tees consisting of five persons, to be appointed by the Superior Court of such city, or if there be no Superior Court, then by the Court of Common Pleas of the county in which such city is situated. The enterprise can not, however, be undertaken until a majority of the City Council shall, by resolution, have declared such line of railway to be essential to the interest of the city, nor un- til it shall have received the sanction of a majority vote of the electors of the city, at a special election, to be ordered by the City Council, after twenty days' public notice. For the accomplishment of this purpose, the Board of Trustees is authorized to borrow a sum not exceeding ten millions of dollars, and to issue bonds therefor in the name of the city, which shall be secured by a mortgage on the line of railway and its net income, and by the pledge of the faith of the city, and a tax to be annually levied by the Council, sufficient with such net income to pay the interest and provide a sinking fund for the final redemption of the bonds. * Reported in 21 Ohio State Reports, p. 89. CINCINNATI SOUTHERN RAILWAY. 49 In pursuance of the authority which this act purports to give, the City Council of Cincinnati has resolved, that it is essential to the interests of that city that a line of railway, to be named the "Cincinnati Southern Railway," shall be provided between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee ; and this action of the council has been endorsed and approved by a vote of more than ten to one of the electors of the city, at an election duly ordered and held pursuant to the requirements of the act. But fifteen hundred of the electors of the city voted against the proposed pro- ject ; and the grave question here presented on behalf of these unwilling electors and tax payers, is whether it is within the power of the State Legislature to authorize the taxation of their property by the municipality ibr the purpose of constructing such a line of railway, by the means and in the manner prescribed in this act. The consequences which may reasonably be expected to result from the exercise, by municipal corporations, of powers such as this act purports to confer, both in respect to public and private interests, are so momentous as to , make it difficult to overestimate the importance of the question ; and to demand at our hands the most careful investigation and deliberate consideration. This is the first instance, in the history of the State, so far as we, are aware, in which the General Assembly has undertaken to authorize municipalities to embark in the business of constructing railroads, on their own sole account, as local improvements. The railway con- templated in this instance, is several hundred miles in length, extending into other States; the sum authorized to be expended in its construction is a large one, and 50 CINCINNATI SOUTHERN RAILWAY. should it prove inadequate for the completion of the road, wo may reasonably expect it will be increased by subse- quent legislation, These considerations, and the apparent abuse of discre- tion involved in declaring such a work to be so far local in its character as to justify its construction by a single city, at the sole expense of its citizens, all give a high degree of interest to the question. But we must bear in mind that the question is one of legislative power, and not of the wisdom, or even of the justice of the manner in which that power, if it exists, has been exercised. Had we jurisdiction to pass upon the latter question, we should probably have no hesitation in declaring the act under review to be an abuse of the taxing power. Let us then first inquire, under what conditions it be- comes competent for the judiciary to declare an attempted act of legislation, formerly enacted by the General As- sembly, to be invalid by reason of unconstitutionally. Courts can not, in our judgment, nullify an act of leg- islation on the vague ground that they think it opposed to a general "latent spirit" supposed to pervade or un- derlie the constitution, but which neither its terms nor its implications clearly disclose in any of its parts. To do FO would be to arrogate the power of making the consti- tution what the Court may think it ought to be, instead of simply declaring what it is. The exercise of such a power would make the Court sovereign over both consti- tution and people, and convert their government into a judicial despotism. Whilst we declare that legislative power can only be exercised within the limits prescribed by the constitution, we are equally bound to keep within the sphere allotted to us by the same instrument. On CINCINNATI SOUTHERN RAILWAY. 51 this subject we can not do better than to adopt what is BO well said by Judge Cooley, in his treatise on " Consti- tutional Limitations," pp. 128, 129, where, in speaking of limitations upon legislative authority, he says : "Some of these are prescribed by constitutions, but others spring from the very nature of free government. The latter must depend for their enforcement upon legislative wisdom, discretion and conscience. The Legislature is to make laws for the public good, and not for the benefit of individuals. It has control of the public moneys, and should provide for disbursing them for public purposes only. Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes, and what does properly constitute a public burden, are questions which the Legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which can not be controlled by the courts, except perhaps where its action is clearly evasive, and where, under pre- tense of a lawful authority, it has assumed to exercise one that is unlawful. Where the power which is exer- cised is legislative in its character, the courts can enforce only those limitations which ike constitution imposes, and not those implied restrictions, which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism, and sense of justice of their representatives." And he adds on page 171: "ISor are the courts at liberty to declare an act void because, in their opinion, it is opposed to a spirit sup- posed to pervade the constitution but not expressed in words ; "citing People v. Fisher, 24 Wend. 220 ; Cock- 52 CINCINNATI 80UTRF.BN RAILWAY. ran v. Van Rurlay, 20 Wend., 381 ; People v. Gal- l(i I CINCINNATI SOUTHERN RA1I.WAY. l-r. yet it is clearly too late to overrule them in this State. Were the question a new one, and properly deter- ini nable by the judgment of a court, we should perhaps concur in opinion with Jud^c Red field, that subscriptions for railway stock, by cities and towns, do not come appropriately within the range of municipal powers and duties. Yet he is constrained to add that * the weight of authority is all in one direction, and it is now too late to bring the matter into serious debate." 2. Redf. on Railways, 398, 399, note. And if, in the absence of con- stitutional prohibition, a municipal corporation may be authorized to aid, by stock subscriptions, in the construc- tion of a railway which has a special relation to its busi- ness and interests ; upon what principal shall we deny that it can be authorized to construct it entirely at its own expen: e, when its relation is such as to render it essential to the business interests of the municipality? And upon the question of fact whether a particular road is thus essential to the interests of the city, this Court in the case of the C. W. & Z. R. R. already referred to, quote approvingly from the case of Ooodin v. Crump 8 Leigh, R. 120, in which it was said : "If then the test of the corporate character of the act is the probable benefit of it to the community within the corporation, who is the proper judge whether a proposed measure is likely to conduce to the public interest of the city ? Is it this Court, whose avocations little fit it for such inqui- ries? Or is it the mass of the people themselves the majority of the corporation, acting (as they must do if they act at all) under the sanction of the legislative body ? The latter, assuredly." And in Sharpless v. Mayor of Philadelphia, 21 Penn. St. R. 147, it was CINCINNATI SOUTHERN RAILWAY. 55 said by C. J. Black, " if the Legislature may create a debt and lay taxes on the whole people to pay such sub- scriptions, may they not with more justice, and greater propriety, and with as clear a constitutional right allow a particular portion of the people to tax themselves, to promote in a similar manner a public work in which they have a special interest? I think this question can 1 not be answered in the negative." ....'! can not conceive of a reason for doubting that what the State may do in aid of a work of general utility, may be done by a county or a city, for a similar work, which is especially useful to such county or city, provided the State refuses to do it herself, and permits it to be done by the local authorities." The question in that case was upon the validity of subscriptions of stock made by the city of Philadelphia in aid of two railroads. One of these was the Hempfield road, which had its Eastern terminus at Greens- burg, three hundred and forty-six miles west of Philadel- phia. Both subscriptions were sustained, and the Court said, " It is the interest of the city which determines the right to tax her people. That interest does not necessarily depend on the mere location of the road." . . . "But it is not our business to determine what amount of interest Philadelphia has in either of these improvements. That has been settled by her own officers and by the Legisla- ture. For us it is enough to know that the city may have a public interest in them, and that there is not a palpable and clear absence of all possible interest percepti- ble by every mind at the first blush. All beyond that is a question of expediency not of law, much less of con- stitutional law." By the act under consideration, no railroads are au- 56 CINCINNATI SOUTHERN RAILWAY. thorized to be constructed, except such as have one of tlit ir termini in the city which constructs them. And that a city has no peculiar corporate interest in snch channels of commerce as lead directly into it, is a propo- sition which, to say the least, is very fur from being cl( arly true. And as the public or corporate interest in an improvement, rather than its particular location, deter- mines the question as to the right of taxation for its con- struction, the fact that the road contemplated in the present case will lie mainly outside of this State, can make no difference. The right of eminent domain can not be exercised, nor the road constructed in or through other States, without their permission and authority ; and the act in question contemplates nothing of the kind. But when such consent is given, we suppose the particular direction given to the road can have no bearing on the question of corporate power to construct it. It is also to be borne in mind, that this is not a case in which the L egislature has determined a particular public improvement to be of a local character, and has imposed the burden of its construction on an unwilling munici- pality. But it is the case of an authority given to a city to exercise its powers of taxation only for the construc- tion of an improvement which the local authorities have declared to be essential to the interest of the city, and even that can not be done till a majority of its people have sanctioned the measure by their deliberate votes. The towns and cities of the State are not the creations of the constitution. It recognizes these municipalities as existing organizations, properly invested by immemo- rial usage with powers of assessment and taxation for local purposes of a public character, but which were nev- CINCINNATI SODTHERN RAILWAY. 57 erthelss subject to control and regulation by the State, and that these powers might be abused unless properly restricted. The constitution itself provides where the power of preventing such abuse shall be vested. It de- clares, in article 13, section 6, that the "General As- sembly shall provide for the organization of cities find incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contract- ing debts, and loaning their credit so as to prevent the abuse of such power." It is very clear, that this consti- tutional mandate can not be enforced according to judi- cial discretion and judgment. In the very nature of the case, the power which is to impose restrictions so as to prevent abuse, must determine what is an abuse, and what restrictions are necessary and proper. As is said by the learned author from whose treatise we have before quoted: "The moment a court ventures to substitute its own judg- ment for that of the Legislature, in any case where the constitution has vested the Legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its dis- cretion alone will measure the extent of its interference. The rule of law upon this subject appears to be, that except where the constitution has imposed limits upon the legis- lative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision, which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitu- tional bounds, is by an appeal to the justice and patriot- 5 58 CINCINNATI ROUTHKHN RAILWAY. ism of tlio ropivsnit.-itivis of the people. If this fail, tin* pi'oplt- in their sovereign capacity can correct the evil ; but courts can not assume their rights " Cooley's Const. Lim., 167, 168. We do not mean to say tliat every legislative enact- ment is necessarily valid unless it conflict with some ex- press provision of the constitution. Undoubtedly, the General Assembly can not divest A. of his title to prop- erty and give it to B. They can not exercise judicial functions. They can impose taxes only for a public pur- pose. For it is of the essence of a tax that it be for a public use. Nor can they by way of taxation impose a burden upon a portion of the State only, for a purpose in which that portion of the State has no possible pecu- liar local interest. But to justify the interference of a court upon any of these grounds, the case must be brought clearly, and beyond doubt, within the category claimed ; and such we are persuaded is not the case in respect to the act in question. We have been referred to recent adjudications in several States, which are supposed to sustain the claim that taxa- tion can not be authorized for the construction of a rail- road in cases like the present. In the case of Whiting vs. Sheboygan Railway Co., 9 American Law Reg- 156, it was held that " a statute levying a tax for the sole purpose of making a direct gift of the money raised to a mere private railway in which the State or tax payers have no ownership, is unconstitutional." The case, from Michigan, of The People ex rel. The Detroit h <1. And its language is sullieiently comprehensive to embrace enterprise involving the expenditure of money, and the creation of pecuniary liabilities. Under the con- stitution of 1802, numerous special acts of legislation had authorized counties, cities towns, and townships, to become stockholders in private corporations, organized for the construction of railroads, to be owned and ope- l by such corporations. The stock thus subscribed by the local authorities was generally authorized to be paid for by the issue of bonds, which were to be paid by taxes assessed upon the property of their constituent bodies. Many of these enterprises proved unprofitable, and the stock became valueless. Some of them wholly failed. Heavy taxation followed to meet and discharge the inte- rest and principal of the bonds thus issued. Towns and townships were induced to attempt repudiation of their contracts. And, as the records of this Court abundantly show, the assessment and collection of the taxes, which the preservation of good faith required, had repeatedly to be enforced by mandamus. In many, if not all of these cases, it was alleged that the stock subscriptions sought to be enforced had been voted for and made under the influ- ence of false and fraudulent representations made by in- terested officers and agents of the corporation to be aided by the subscription. At the time of the formation and adoption of the present constitution these evils had begun to be seriously felt, and excited the gravest apprehensions of calamitous results. Under such circumstances this sec- tion was made a part of the State constitution. It may be well again to recur to its language : " The General Assem- CINCINNATI SOUTHERN RAILWAY. 67 bly shall never authorize any county, city, town or town- ship, by vote of its citizens or otherwise, to become a stock- holder in any joint stock company, corporation, or associa- ciation whatever ; or to raise money for, or loan its credit to, or in aid of, any such company, corporation or associa- tion." The mischief which this section interdicts is a busi- ness partnership between a municipality or subdivision of the State, and individuals or private corporations or asso- ciations. It forbids the union of public and private capi- tal or credit in any enterprise whatever. In no project originated by individuals, whether associated or other- wise, with a view to gain, are the municipal bodies named permitted to participate in such manner as to incur pecuniary expense or liability. They may neither become stockholders nor furnish money or credit for the benefit of the parties interested therein. Though joint stock companies, corporations and associations only are named, we do not doubt that the reason of the prohibi- tion would render it applicable to the case of a single individual. The evil would be the same, whether the public suffered from the cupidity of a single person, or from that of several persons associated together. As this alliance between public and private interests is clearly prohibited in respect to all enterprises of what- ever kind, if we hold that these municipal bodies can not do on their own account, what they are forbidden to do on the joint account of themselves and private partners, it follows that they are powerless to make any improve- ment, however necessary, with their own means, and on their own sole account. We may be very sure that a purpose so unreasonable was never entertained by the framers of the constitution. 68 CINCINNATI BOUTHFRN RAILWAY. Besides, if this section is to be construed so as to prohibit municipal corporations from making improve- ments on their own account, and with their own means, then the fourth section of this same article, which is quite similar in language, must be held to prohibit the HIM king of any improvements by the State on her own account, and with her own means. This would not only be highly unreasonable, but would conflict with the clear implications of the section which prohibits the State from contracting any debt for purposes of internal improve- ment. This implies that the State may make all such improvements as will not involve the creation of a debt. We find ourselves unable therefore, upon any estab- lished rules of construction to find in this section the inhi- bition claimed by Council to arise by implication. It may be, and indeed I think it very probable, that had the framers of the constitution contemplated the possibility of a grant to a municipal corporation of such powers as the acts under consideration confer, they would have interposed further limitations upon legislative discretion. But omissions of such a grave character surely can not be supplied according to the conjectures of a court. It is argued, however, that the Trustees of the contem- plated railway are a corporation, and that the act in ques- tion violates the terms of this section, by authorizing the city to raise money for and loan its credit to this corpo- ration, to enable it to construct a railroad. We think it unnecessary to inquire whether the trustees provided for by the act are in any sense a corporation or not. For if they are an association or organization of any kind what- ever, having a property interest in the road distinct from that of the city, then the objection is well taken. The CINCINNATI SOUTHERN RAILWAY. 69 inhibitions of this section are not directed against names. But it is clear that the Trustees are a mere agency through which the city is authorized to operate for her own sole benefit. Neither as individuals nor as a board have they any beneficial interest in the fund which they are to manage, or in the road which they are to build. They are in fact, as well as in name, but trustees, and the sole beneficiary of the trust is the city of Cin- cinnati. They are authorized to act only in the name and on behalf of the city. Looking, therefore, to the substance of things, this case can not be brought within the terms of the prohibition, unless we are to regard the city itself as being one of the corporations for which money is not to be raised, nor a loan of credit made. We do not understand counsel as relying upon any other ground of objection to the validity of this act than those which we have considered, and are of opinion that the judgment of the Court below must be affirmed. WELCH, WHITE, DAY and MC!LVAINE, JJ., concurred. 70 CINCINNATI SOUTHERN RAILWAY. IN THE SUPREME COURT OF OHIO. December Term, 1872. Hox. WILLIAM WHITE, Chief Justice, and Hoy. LUTHER DAT, HON. QEOKOE \v. M, l LVAI.NK, How. JOHN WELCH, and HON. WALTER F. STONE, Judges. JAMES TAYLOR ET AL. v. TUE COMMISSIONERS OP Ross COCNTT. APPEAL reserved in the District Court of Ross countj. MARTIN KANTNER v. THE TRUSTEES OF DOUCHOUQUET TOWNSHIP, AUOLAIZE COUNTT. ERROR to the Court of Common Pleas of Auglaize County. OPINION OF THE COURT.* Tuesday, May 18, 1873. WHITE C. J. : These two cases were argued at the Bame time, and they have been considered and will be dis- posed of together, as they both involve the question of the constitutionality of the act of April 23, 1872, to au- thorize counties, townships, and the municipalities therein named to build railroads, etc., 69, 0. 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 vs. The City of Cincinnati et. al, 21 0. L. It, 15. The act passed upon in that case is widely different from the one now before us. The latter contains pro- visions 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 * Reported in 23 Ohio State Reports, p. 76. CINCINNATI SOUTHERN RAILWAY, 71 works of a public nature in which it had a special inter- est, 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 em- power 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 consti- tution. 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, gas works, and other im- provements 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 vs. 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 con- ditions which shall be fixed and 'provided by the Council of the city by which the line of road is owned. 7J CINCINNATI BOUTIIKRX RAILWAY. This power can not be exercised until after tha work is completed, except for the purpose of getting the imun'- diate use of the fmi.^hed port ion during the time required to complete the entire work. The proprietary int in the road when completed is as fully in the munici- pality 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 subordi- nate 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 compensa- tion, 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 description of public property. Com- pensation 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 water works or gas works, to lease them as a means, of supplying the public needs, we know of no con- stitutional impediment But this is a different thing from investing public money in the enterprises of others, or from aiding them CINCINNATI SOUTHERN RAILWAY. 73 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 exami- nation 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 Gen- eral Assembly is thus prohibited from doing directly, it has no power to do indirectly. In giving an exposition of this section, in Walker vs. The City, etc., it is said in the opinion : " The mischief which this section interdicts is a busi- ness partnership between a municipality or subdivision of the State, and individuals or private corporations or as- sociations. It forbids the union of public and private capital, or credit in any enterprise whatever. In no pro- ject originated by individuals, whether associated or otherwise, with a view to gain, are the municipal bodies permitted to participate in such manner as to incur pe- cuniary liability. They can neither become stockholders, nor furnish money or credit for the benefit of parties interested therein. Though joint stock companies, cor- porations, and associations only are named, we do not 6 74 CINCINNATI SOUTHERN RAILWAY. 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 rail- road, 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 presenta- tion of a written request, signed by the specified number of tax paying electors, containing a specification of the termini of the proposed road, the amount to be appro- priated toward its construction, and such other condi- tions 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 ap- prove 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 elec- tion, to advertise for proposals for the construction of the CIXCINNATI SOUTHERN RAILWAY. 76 work ; but the time of letting it 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 con- tract : if no one will undertake to buiM the whole road for the bonds, they must let the work to the party who will agree to lake them and build the greatest number of miles. No provision 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 the payment of " labor performed and ma- terial furnished during the previous month, in pursuance of the contract," except that fifteen per cent, is authori- zed to be reserved until the contract is performed. The contract is to be entered into and the bonds ex- pended 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 to 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, or municipality gets, upon the hypothesis that it was the intention of the act to authorise 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 76 CISC1SXAT1 SOUTHERN RAILWAT. 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 com- mon 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 availa- ble 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 object. That section provides that the "County Com- missioners shall have power, and they are hereby authori- zed 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 in- vested with authoritv to sell or lease the road either CINCINNATI BOUTnERN RAILWAY. 77 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 ttoe public bonds to construct a work which becomes the property of the pur- chaser as fast as it is built. What is to be paid for the right thus sold, is to be left to the discretion of the local authorities. It may be paid for by completing the work. Indeed, the amendatory 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 78 CINCINNATI SOUTHERN RAILWAY. 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 locali- ties 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 constitu- tion 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 com- pleted at all, by other parties out of their own means, who are to own pr have the beneficial control and man- agement of the work when completed, the public money or credit thus used, can only be regarded, within the mean- ing of the constitutional provision in question, HS fur- nished 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 CINCINNATI SOUTHERN RAILWAY. imposed, would be to deny the protection guaranteed 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 expen- diture 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 unconsti- tutional 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 un- constitutional 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 un- constitutional 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 80 CINCINNATI SOUTHERN RAILWAY. the contrary, tho unconstitutional element constitutes an inherent and essential part of the authority conferred. Private property, except when taken for public pur- poses, or by legitimate taxation, is as inviolable as per- sonal liberty. If an act of the legislature should author- ize 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 con- stitutes a necessary part of the plan or scheme for accom- plishing the objects intended by the act. Monroe et al. v. Collins, 17 Ohio St. G66, 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 constitution suffers no detriment, from whatever quar- ter 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 Ti'ustees^ etc., the judgment of the Court below will be reversed ; and a per- petual injunction is ordered by this Court in each case. THE TENNESSEE ACTS Authorizing Construction of the Road, authorize the extension and construction of the Cincinnati Southern 'Railway within the State of Tennessee. \YIIERFAS, It is represented to this General Assembly that Miles Greenwood, Richard M. Bishop, William Hooper, Philip Heidelbach, and Edward A. Ferguson,. of the city of Cincinnati, in the State of Ohio, were ap- pointed, under and by virtue of an act of the General As- sembly of the State of Ohio, passed on the fourth day of May, in the year eighteen hundred and sixty-nine, a Board of Trustees, with authority to borrow a fund not to exceed the sum of ten millions of dollars, and to issuer bonds therefor in the name of the city of Cincinnati, un der the corporate seal thereof, of which said fund the said Miles Greenwood, Richard M. Bishop, William Hooper, Philip Heideibach, and Edward A. Ferguson, and their successors, are to be Trustees, with power to expend the same in procuring the right to construct, and in con- structing, a single or double-track railway, with all the usual appendages, including a line of telegraph, between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee, to be called and known as the " Cincinnati Southern Railway ; " and with power and ca- pacity for the purposes aforesaid, to make contracts, ap- point, employ, and pay officers and agents, and to acquire,, hold, and possess all the necessary real and personal 7 82 CINCINNATI IOCTHKRN RAILWAY. property and franchises, either in the said State of Ohio or in any other State into which the said line of railway may extend, and with other powers in said act expressed ; and whereas, the said line of railway cannot be constructed, nor the powers of the said Board of Trustees be exercised within the State of Tennessee, without the consent of the General Assembly thereof; therefore, SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the said Board of Trustees, namely : Miles Greenwood, Richard M. Bishop, William Hooper, Philip Heidelbach, and Edward A Fer- guson, and their successors, by the name of the " Trustees of the Cincinnati Southern Railway," be, and they are hereby authorized to extend, construct, and maintain, within the State of Tennessee, the said line of railway, with a single or double track, with all the usual appenda- ges, including a line of telegraph, and to exercise the powers vested in them under and by virtue of said act of the General Assembly of the State of Ohio, subject to the provisions and restrictions in this act provided. SEC. 2. Be it further enacted, For the purpose of ex- amining and surveying routes for the said line of railway, the said Trustees may, subject to the provisions of section 13151 of the code, enter upon any land in the counties of Claiborne, Campbell, Union, Knox, Anderson, Blount, Roane, Monroe, McMinn,Meigs, Bradley, Hamilton, Kin -a, Cumberland, Morgan, Scott, Fentress, Overton, Putnam, White, Van Buren, Bledsoe, Sequatchie, Marion, Grundy, Warren, DeKalb and Jackson, and select from the routes so examined and surveved a route for the same, commenc- ing at a point within the city of Chattanooga to be select- ed by said Trustees; and running through either of said CINCINNATI SOUTHERN RAILWAY, 83 counties, to the northern boundary line of this State, so as to connect with the same line of railway in the Com- monwealth of Kentucky. A copy of the survey and location of such route, and any alteration therein, shall be filed in the Register's office of the counties through which the paid railway runs, within one year after such location or alteration. SEC. 3. Be it further enacted. For the purpose of constructing and maintaining said line of railway and its appendages, the said Trustees may : 1. Acquire by purchase or gift and hold any land in the vicinity of or through which the route selected by them may pass. 2. Occupy or use any turnpike road, street or other pub- lic way or ground, or any part thereof, upon such terms and conditions as may be agreed upon between said Trus- tees, and the municipal or other corporation, persons, or public authorities, owning or having charge thereof; and in case it shall be necessary to provide a new road, street, or other ground, in place of that so used or occu- pied, to acquire the necessary land and cause the neces- sary improvements to be made thereon. 3. If the lands, the said Trustees may deem necessary or convenient, cannot be acquired as aforesaid, or if no agreement can be made for the right to use or occupy any road, street . or ground, that may be necessary, the said Trustees may take and appropriate the said lands or rights in the manner provided in the code for taking private property for works of internal improvement ; and the Court may fix such terms and conditions in the case of roads, streets and public grounds, as may be deemed best for the public interest; Provided, that no appropria- 84 CINCINNATI 80DTIIKKM RAILWAY. tinn for the right of way shall be of a greater width th:m two hundred {!<. and />rovided ft/rl/trr. that the lights of the land OUIHTS shall not be divested until the said Trustees shall fully satisfy the judgments raw -red in their favor, or amounts or terms agreed upon for said right of way. Si:o. 4. lie it further enacted, If, .during the con- struction or after the completion of said line of rail- way, it shall be found necessary by said Trustees to change the location or grades, or to substitute other works or conveniences for those originally designed or constructed, or to provide additional side tracks or other appendages for the proper management and opera- tion of said railway, the said Trustees may make such changes and provide such additional appendages. not departing from the general route originally selected by them; and, for the purposes aforesaid, may ac- quire or enter upon, take and appropriate such lands or rights, as may be necessary, in the mode hereinafter pre- scribed. SEC. 5c Be it further enacted, Whenever, along the route selected by said Trustees, there shall ba a railroad already constructed, or rights of way, or depot or other grounds acquired therefor, which railroad, rights of way or grounds, can be adopted as part of the said line, it shall be lawful for the persons, company or corporation owning the same, to sell to the said Trustees the said railroad, rights of way, or grounds, or any part thereof, upon such terms and conditions as may be agreed upon between the said Trustees and such persons, or the presi- dent and directors of such company or corporation; Provided, That the statutory lien which the State CINCINNATI SOUTHERN RAILWAY. 85 may have on said road, thus sold and transferred shall not in any way be impaired by said sale ; and, Provided further. That no such agreement shall be binding on the stockholders of any such company or corporation, unless a majority in interest of such stockholders, as shown by the books of such company or corporation, shall ratify the same in person or by proxy, at a meeting to be held at the place of holding the election of directors, to be called after notice given of the object of the meet- ing, in the manner provided for notice of such elections. SEC. 6. Be it further enacted, No permanent bridge or other work shall be so constructed as to materially in- terrupt or impair the navigation of such streams as are naturally navigable or as have been declared to be sc by law. SEC. 7. Be it further enacted, And where? L, under and by virtue of the above mentioned act of the General Assembly of the State of Ohio, the said Board of Trus- tees have power to borrow a fund for the construction of the said line of railway, not to exceed ten millions of dol- lars, and to issue bonds therefor in the name of the city of Cincinnati, under the corporate seal thereof, bearing interest at a rate not to exceed seven and three-tenths per centum per annum, payable at such times and places and in such sums as shall be deemed best by said Board ; which bonds are to be signed by the President of said Board, and attested by the City Auditor of said city, who is to keep a register of the same, and are to be se- cured by a mortgage on the said line of railway, and its net income, and by the pledge of the faith of said city and a tax which it is made the duty by said act, of the council of taid city annually to levy, sufficient with said 86 CINCINNATI sm-iHKRN RAILWAY. net income, to pay the interest, and provide a sinking fund for the final redemption of said bonds : Be it Jurlher enacted, That the respective holders of all euch bonds are hereby declared to be entitled to hold, by way of mortgage, without any conveyance, the s-dd line of railway and its appendages, and the net income thereof, and all the estate, right, title, and interest of the said city of Cincinnati, and of the said Board of Trustees therein, until the respective sums mentioned in said bonds, and the interest theron, shall be fully paid, without any preference one above another, by reason of prioiity of date of any such bonds, or of the time when such holder became the owner of the same, or otherwise howsoever. The mortgage lien hereby given is to vest, as soon as rights of way or lands, whereon are to be placed the works and conveniences used in constructing, maintain- ing or operating said railway, are acquired or taken, by virtue of the powers of the said Trustees : Provided, That nothing herein contained shall affect the lien of any vendor upon the land sold to said Trustees. SEC. 8. Be it further enacted, In order to aid in the construction of said line of railway, it shall be lawful for any county through which, or any incorporated town or city through or contiguous to which it is proposed to run the same, to donate such sum or subscribe for such an amount of said bonds on such terms as may be agreed upon between said Trustees and the County Court or cor- porate authorities of such town or city ; and it shall be the duty of the County Court or corporate authorities, after the said donation or subscription is voted fur as herein provided, to levy a tax upon the taxable property, privileges and persons liable by law to taxation, within CINCINNATI SOUTHERN RAILWAY. 87 the county or corporation limits, sufficient to meet the installments of the donation or subscription as made and the costs and expenses of the collection, which tax shall be levied and collected like other taxes. SEC. 9. Be it further enacted, The amount of such donation or subscription shall not exceed five per cent, of the taxable property of such county, town, or city : and no tax shall be levied for the same, unless a majority of the legal voters of the county, town or city as the case may be, estimating the vote by the last preceding Gov- ernor's election, shall be in favor of the said donation or subscription, at an election to be held by the officers authorized by law to hold elections, in the usual way in which popular elections are held, after the same shall have been advertised at least thirty days beforehand, by notices posted up at the different places of voting, speci- fying the time when it is to be held, for what road, the amount and terms of the proposed donation or subscrip- tions, and when payable ; that publication of said election be made in the newspaper having the largest circulation in the county. SEC. 10. Be it further enacted, Said Trustees shall survey and locate the route of said line of railway, and actually commence the construction thereof, within two years from the passage of this act ; and shall continue such construction, and complete the work within five years therefrom, or within such further reasonable period, not exceeding ten years in all, as the Governor may grant upon satisfactory evidence that they are progressing with due diligence and in good faith. The gauge of said mil- way shall be five feet. SEC. 11. Be it further enacted, The charge for 88 CINCINNATI SOUTHERN RAILWAY. transportation on said railway shall not exceed thirty-five cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement for every hun- dred miles, and five cents a mile for every passenger. SEC. 12. Be it further enacted. The taxes imposed on said line of railway and its appendages shall not ex- ceed the rate imposed on other railroads within this State, SEC. 13. Be itjurther enacted, The said trustees may sue and be sued, contract and take and hold property, and convey and transfer the same by the name of the " Trus- tees of the Cincinnati Southc>in Railway." They shall keep an office in the city of Chattanooga, and service of process may be made on them in the mode provided for service of process on individuals having an office or agency in any county other than that in which the prin- cipal resides; and can sue and be sued in any county thrcugh which the said road may pass, and service may be had upon any depot agent of the same. The time for commencing actions against them shall be the same as that for commencing actions against railroad compa- nies on like cases. Conveyances by said Trustees shall be signed by not less than three of them. SEC. 14. Be it further enacted, The following words and expressions in this act shall have the several mean- ings hereby assigned to them, unless there be something in the context repugnant to such construction : that is to say, the word *' lands " shall include not only lands and every estate and interest therein, but also easements and franchises connected therewith. The word "Trustees" shall mean the Trustees for the time being appointed un- der the said act of the General Assembly of the State of Ohio, and shall include the said Board of Trustees and CINCINNATI SOUTHERN RAILWAY. 89 s their successors. The word "code" shall mean the code of Tennessee. The expression " lien " of railway and its appendages, shall extend to and include the works and conveniences of the said railway, such as offices, stations, shops, sheds, depots, car-houses, and other buildings, bridges, viaducts, tunnels, arches, piers, abutments, em- bankments, approaches, ways, aqueducts, culverts, sewers, drains, wharves, yards, fences, telegraph posts and wires, tracks, turn-outs, and turn tables, and the rights of way and lands belonging to said Trustees, whereon the said and other like works and conveniences used in construct- ing, maintaining, or operating said railway are placed. The expression ''Act of the General Assembly of the State of Ohio," shall mean the act of the General As- sembly of the State of Ohio, entitled tl An act relating to cities of the first class, having a population exceed- ing one hundred and fifty thousand inhabitants," passed on the 4th day of May, in the year 1869. The ex- pression " line of railway," shall mean the line of railway between the city of Cincinnati, in the State of Ohio, and the city of Chattanooga, in the State of Tennessee. SEC. 15. Be it further enacted, That nothing in this act shall be so construed as to entitle the said railroad to State 5iid under the General Internal Improvement laws of this State. SEC. 1C. Beit further enacted, That no discrimination shall be made against the citizens of the State of Tennessee in the carrying of freight and passengers upon said rail- road, or any part thereof, and the Legislature reserves the right to enforce this provision by all necessary legislation. SEC. 17. Be it further enuded, That the State of Tennessee shall have the same legislative control in this 90 CINCINNATI SOUTHERN RAILWAY. railroad interest or charter, that the State holds in other railroads in the State of Tennessee, SBC. J8. Be it Jurther enacted. That the rights, privileges, and immunities granted by this act, shall con- tinue for and during the period of ninety-nine years, and not longer, and shall during that time, be subject to be declared forfeited by any court of competent jurisdiction, upon bill filed on the relation of any citizen of Tennes- see on behalf of the State for any failure on the part of the said Trustees, their successors or assigns, to comply with - the terms, stipulations, and obligations imposed herein, for the, benefit and security of the State of Tennessee, or the people thereof; and that a right of action for the redress of any injury caused by, or for any claim or de- mand against said Trustees or railway, shall exist in this State in any court or judicial tribunal having jurisdic- tion thereof, against said Trustees or railway ; and process may be served upon any depot agent of such Trustees or railway, residing in this State, in the absence of the Presi- dent or head officer of said Trustees or railway, and the judgment rendered against the Trustees of said Cincinnati Railway, or by whatever name it transacts its business, and the property, real and personal, belonging to such Trustees or railway within this State, shall be enforced, and be liable for the satisfaction of said judgment ; the existence of any mortgage on said railway and appenda- ges as provided for in this act, to the contrary notwith- standing: and before entering on any lands of this State, said Trustees shall accept the provisions of this act SE:. IV). Be it further enacted, That this act shall take effect from and after its passage. w. o. N. PERKINS, Speaker of the House of Repreientativet. D. B. THOMAS, Passed January 20, 1870. Speaker o/ the Senate. CINCINNATI SOUTHERN RAILWAY. 9i .A.CT. T to grant further time /or commencing the con- struct ion of "Railroads and Street "Railroads within the State of Tennessee. SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That additional time of three years, be, and is hereby granted for the commence- ment of the construction of railroads and street railroads, heretofore authorized to be constructed within the limits of the State of Tennessee by the Legislature thereof; Provided, That nothing in this act shall be so construed as extending or continuing State aid to any railroad or street railroad company. This act to take effect from and after its passage, the public good requiring it. Passed December 15, 1870. W. 0. N. PERKINS, Speaker of the House of Representative*. D. B. THOMAS, Speaker oj tht Senate. ApproTed December 19, 1870. D. W. C. SENTER, Governor. NOTE. At the time the original act was passed (Jan. 20, 1870, no approval of the Governor was necessary, but the Constitution of Tennes- see was changed in the meantime in this respect. KENTUCKY ACTS Authorizing Construction of the Road. [Chapter 272.] authorize the Trustees of the Cincinnati South- ern ^Railway to acquire the right of way, and to extend a line of railway through certain counties in this Common- wealth. WHEREAS, It is represented to this General Assembly that Miles Greenwood, Richard M. Bishop, William Hooper, Philip Heidelbach, and Edward A. Ferguson, of the city of Cincinnati, in the State of Ohio, were ap- pointed, under and by virtue of an act of the General Assembly of the said State of Ohio, passed on the fourth day of May, in the year eighteen hundred and sixty-nine, a Bjard of Trustees, with authority to borrow a fund not to exceed ten millions of dollars, and to issue bonds therefor in the name of said city of Cin- cinnati, under the corporate seal thereof, of which said fund the said Miles Greenwood, Richard M. Bishop, William Hooper, Philip Heidelbach, and Edward A. Fer- guson, and their successors, are to be Trustees, with power to expend the same in procuring the right to construct, and in constructing, a single or double-track railway, with all the usual appendages, including a line of tele- graph, between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee, to be called and known as the Cincinnati Southern Railway; and CINCINNATI SOUTHERN RAILWAY. 93 with power and capacity for the purposes aforesaid to make contracts, appoint, employ, and pay officers and agents, and to acquire, hold, and possess all the necessary real and personal property and franchises, either in the said State of Ohio or in any other State in which the said line of railway may extend, and with other powers in said act expressed : Provided, The Trustees of said road shall cause to be surveyed one or more routes for said road by a competent engineer and assistants from the city of Cincinnati, by the way of Nicholasville and Danville, to the State line, in the direction of Sparta, Tennessee; thence on the most direct practicable route to Chatta- nooga, having due regard to grade and cost of construc- tion. The engineers shall lay before the board of trus- tees a map of the route, exhibiting the excavations, fills, bridges, grades, tunnels, etc., with approximate estimates of the cost of constructing the road from Cincinnati to the State line, thence to Chattanooga, which estimates shall show separately the cost of constructing this line and others that may be made and reported by engineers. Each line surveyed shall be reported to the citizens of Cincinnati, that they may express their preference for either route by their votes ; and that the trustees shall locate the road-bed as indicated by the votes of the citi- zens and tax payers of said city ; and whereas, the said line of railway cannot be constructed, nor the powers of the said Board of Trustees be exercised within the Com- monwealth of Kentucky, without the consent of the Gene- ral Assembly thereof. The General Assembly reserves the right to change, alter, or modify this act, and to regu- late, by general laws, the rates of charges for the trans- CINCINNATI OUTHERN RAILWAY. portation of freights and passengers on said railway; therefore, Be it enacted by the General Assembly of the Com- monwealth of Kentucky: SECTION 1. That the said Board of Trustees, namely : Miles Greenwood, Richard M. Bishop, William Hooper, Philip Heidelbach, and Edward A. Ferguson, and their successors, by the name of the Trustees of the Cincinnati Southern Railway, be, and they are hereby, authorized to extend, construct, and maintain, within the Commonwealth of Kentucky, the said line of railway, with a single or dou- ble track, with all the usual appendages, including a line of telegraph, and to exercise the powers verted in them under and by virtue of said act of the General Assembly of the State of Ohio, subject to the provisions and restrictions in this act provided. SEC. 2. For the purpose of examining and surveying routes for the said line of railway, the said Trustees may, subject to liability for the actual damage done, enter upon any land in the counties of Josh Bell, Knox, Whitley, Laurel, Clay, Cwsley, Jackson, Estill, Madison, Clark, Bourbon, Harrison, Pendleton, Campbell, Kenton, Boone, Gallatin, Grant, Owen, Scott, Franklin, Anderson, Woodford, Fayette, Jessamine, Mercer, Garrard, Boyle, Li r. coin, Rockcastle, Casey, Pulaski, Russell, Wayne, Clinton, Cumberland, Monroe, Metcalfe, and Adair, and se- lect from the routes so examined and surveyed a route for the same, commencing at a point to be selected by the said Trustees where the said line of railway will cross the southern boundary of this Commonwealth, and run- ning through either of said counties to the northern CINCINNATI SOUTHERN RAILWAY. 95 boundary line thereof, and across the Ohio river, so as to connect with the same line of railway in the State of Ohio. A copy of the survey and location of such route, and any alteration therein, shall be filed in the county clerk's office of tha counties through which the said rail- way runs, within one year after such location or al- teration. SEC. 3. For the purpose of constructing and main- taining said line of railway and its appendages, the said Trustees may acquire, by purchase or gift, so much land as may be necessary to construct, complete, and operate their railway and its appendages ; and it shall be lawful for them to apply to any circuit or county court, of any county through which it may be proposed said railway may pass, and for said court to appoint a competent en- gineer, and two disinterested commissioners, to examine the proposed route of said railway, and to take from the proprietors of land over which it is to pass a grant of the right of way, of such width as may be desired, pro- vided the same shall not exceed one hundred feet, and which may include the right to take stone, timber, earth or gravel for the construction of their road ; and they, jointly and severally, shall have the power and authority to take and certify, under their hands and seals, the acknowledgment of v such grants in_Jee or right of way, and the separate acknowledgment of married women, that the clerks of the several county courts have ; and on the presentation of the grant and acknowledgment to the clerk of the county court where the land lies, it shall be the duty of the clerk to record the same as other deeds ; and they shall be effectual against all persons ac- cording to their tenor: Provided, That where the 06 CINCINNATI SOUTHERN RAILWAY. part ir- an- infants or absent, or refuse to make the grant, they shall hoar any proof that may be adduced, and up- on their own view proceed to value any laud required for the right of way, or lands required for turn-outs or depot stations, or other appendages of said road, and alt*) of earth, stone, gravel, or timber for the construction of said road, and report the value they have fixed, together with the evidence adduced, to the court appointing them, with a map or profile of the required ground ; and said report shall be filed with the clerk of such court, and a sum- mons issued to the proprietors to show cause against the confirmation of the report ; but if the proprietor shall be out of the Commonwealth, the summons may be executed upon a known agent, if there be one in the county; and if there be no known agent in the county, then the court may order the appearance of the party at a named day, and appoint the clerk to give the proprietor notice by letter j and in case of there being infant, idiot or lunatic pro- prietors, the court shall appoint guardians at litem f>r them, and cause the guardian to appear and act for them ; and in case an absent defendant does not appear, the court shall appoint an attorney of the court to act, for them. It shall be lawful for the Trustees or any pro- prietor, or both, to traverse the report, and for the court to have the traverse tried in open court by a competent jury ; on which trial the report and evidence returned as aforesaid shall be heard, together with such proof as either party may produce. A new trial to the finding of the jury may be granted as in other cases. The re- port shall stand for hearing, as to any proprietor, when the process has been executed ten days, or after appear- ance of a proprietor on a day fixed for his appearance ; CINCINNATI SOUTHERN RAILWAY. 97 and the court shall have jurisdiction to confirm the re- port, if no traverse is filed ; and in case a traverse is filed, to have the same tried by a jury, and to give judg- ment upon the report or finding of the jury, and order the payment of the money, and the execution of the grant in accordance with the report ; and to have the grant executed by a commissioner appointed by the court, and to order them to be recorded in the county court clerk's office of the county ; and either party may appeal from the judgment of the court SEC 4. That the commissioners or jury, in estimating the value of the lands proposed to be taken, shall not be confined to the actual value, but may take into considera- tion any consequential damage that may result to the adjoining proprietors of the land, and also the advan- tages and disadvantages the proposed road will be to such lands. SEC. 5. That upon the affidavit of the engineer of said Trustees, made and filed before the county judge of any county through which the proposed road may pass, that at any point more than one hundred feet is necessary properly to construct and operate said road, said Trustees may acquire the right to so much land as may be neces- sary for that purpose, and in the manner provided in the preceding section. SEC. G. The said Trustees may also, for the purpose of constructing and maintaining said line of railway, occupy or use any turnpike or plank road, street or other public way or ground, or any part thereof, upon such terms and conditions as may be agreed upon between said Trustees and the municipal or other corporations, persons, or pub- lic authorities owning or having charge thereof; and in 8 98 CINCINNATI SOUTHERN RAM WAY. case it shall l> m eessary to provide a new road, street, or other ground, in place of that so used or occupied, they in iv acquire the invr-Niry land and cause the neces- sary improvement to be mide thereon. If no agreement in l>e made for the right to use or occupy any road, street, or ground that may be necessary, the said Trus- may take and appropriate said rights in the manner provided in the next session : Provided, That, before the damages are a-sissed, the court may fix such terms and conditions as may be deemed best for the public in- terest. SEC. 7. The appropriations authorized in the preceding section shall be made in the manner, and subject to the same right of traverse, writ of error, and appeal, provid- ed by law for taking private property for the use of turn- pike and plank road companies, except that the petition shall be filed in the circuit court of the county in which such turnpike, plank roads, streets, or other public ways or grounds, may lie; and if a continuous portion of the same, lying in more than one county, is sought to be used or occupied, the proceedings may be instituted in the cir- cuit court of any county in which any part of such con- tinuous portion may lie; and the damages shall be as- sessed for the whole of such portion, whether lying in the county wherein the proceedings are instituted or in other counties; the writ shall be directed to the sheriff of the county in which the petition is filed. SEC. 8. If, during the construction or after the comple- tion of said line of railway, it shall be found necessary by said Trustees to change the location or grade, or sub- stitute other works or conveniences for those original- ly designed or constructed, or to provide additional side- CINCINNATI SOUTHERN RAILWAY. 99 tracks or other appendages for the proper management and operation of said railway, the said Trustees may make such changes and provide such additional appenda- ges, not departing from the general route originally se- lected by them ; and, for the purpose aforesaid, may ac- quire or enter upon, take and appropriate, such lands or rights, as may be necessary, in the mode hereinbefore prescribed. SEC. 9. Wherever, along the route selected by said Trustees, there shall be a railroad already constructed, or rights of way or depot or other grounds acquired there- for, which railroad, rights of way or grounds, can bo adopted as part of the said line, it shall be lawful for persons, company, or corporations owning the same, to sell to the said Trustees the said railroad, rights of way or grounds, or any part thereof, upon such terms and conditions as may be agreed upon between the said Trus- tees and such persons, or the president and directors of such company or corporation : Provided, That no such agreement shall be binding upon the stockholders of any such company or corporation unless a majority in inter- est of said stockholders, as shown by the books of such company or corporation, shall ratify the same in person' or by proxy, at a meeting to be held at the place of hold- ing the election of directors, to be called after notice given of the object of the meeting, in the manner pro- vided for notice of such elections. SEC. 10. No permanent bridge or other work shall be so constructed as to materially interrupt or impair the navigation of such streams as are naturally navigable or as have been declared to be so by law. SEC. 11. And whereas, under and by virtue of the 100 CINCINNATI 80UTHKRN RAILWAT. above mentioned act of the General Assembly of Ohio, the said Boaid of Trustees have power to borrow a fund for the construction of the said line of railway, not to <-.\rvd ten millions of dollars, and to issue bonds therefrr in the name of the city of Cincinnati, under the corporate seal thereof, bearing interest at a rate not to exceed seven and three-tenths per centum per annum, payable at such times and places and in such sums as shall be deemed best by said Board ; which bonds are to be signed by the Presi- dent of said Board, and attested by the City Auditor of said city, who is to keep a register of the same, and are t be secured by a mortgage on the said line of railway and its net income, and by pledge of the faith of said city and a tax which it is made the duty by said act of the council of said city annually to levy, sufficient, with said net income, to pay the interest, and provide a sink- ing fund for the final redemption of said bonds : Be it further enacted, That the respective holders of all such bonds are hereby declared to be entitled to hold, by way of mortgage, without any conveyance, the said line of railway and its appendages, and the net income thereof, and all the estate, right and title, and interest of the said city of Cincinnati, and of the said Board of Trustees therein, until the respective sums mentioned in said bonds, and the interest thereon, shall be fully paid, with- out any preference one above another, by reason of pri- ority of date of any such bonds, or of the time when such holder became the owner of the same, or otherwise howsoever. The mortgage lien hereby given is to vest, as soon as rights of way or lands, whereon are to be placed the works and conveniences used in constructing, maintaining, or operating said railway, are acquired or F- CINCINNATI SOUTHERN RAILWAY. 101 taken, by virtue of the powers of the said Trustees: Provided, That nothing herein contained shall affect the lien of any vendor upon lands sold to said Trustees, nor to be held to include the rolling stock used in opera- ting said road: And provided further, That any mortgage that may be made by any lessee or lessees of said line of railway, or persons or company operating it, on the rolling stock used in operating said road, shall not have precedence over, but shall be at all times inferior in priority to, judgments that may be obtained against them, in any county through which said road may run, for wages, materia's, and supplies in running said road ; for damages for breaches of contracts of affreightment, for injury, loss, or destruction of any property put on the cars on said road for transportation, or for any injury to persons or property occasioned in the running of said road. SEC. 12. Said Trustees shall survey and locate the route of said line of ra-lway, and actually commence the construction thereof, within two years from the passage of this act ; and shall continue such construction and complete the work within five years from its commence- ment, or within such further reasonable peViod, not ex- ceeding ten years in all, as the Governor may grant upon satisfactory evidence that they are progressing with due diligence and in good faith. The gauge of said railway shall be five feet SEC. 13. The charge for transportation on said railway fchall not exceed thirty-five cents per hundred pounds on heavy articles, and cents per cubic foot on articles of measurement for every hundred miles, and four cents a mile for every passenger. 102 < IM INSATI BOUTIIKRH RAILWAY. SEC. 14. The taxes imposed on said line of railway and its app'iid:igos shall not exceed the rate imposed on other railroads within this State: Provided, howti / , That the trustees of the Cincinnati Southern Itailway Company shall pay into the treasury of this Common- wealth an amount equal to fifty cents per capita for each through p;issenger across the Commonwealth of Ken- tucky, and twenty-five cents for each passenger for one hundred miles of travel on said road within the limits of the State of Kentucky ; and the said trustees shall also pay semi-annually, into the treasury of this Common- wealth, an amount equal to one cent on each one hundred pounds of through freight shipped over said road ; and all payments due to the treasury under this act shall be made in the manner, and at such times, as may be estab- lished by the Auditor of Public Accounts of this State, except the payments required by this act. SEC. 15. The said trustees may sue and be sued, con- tract and take and hold property, and convey and trans- fer the same, by the name of the " Trustees of the Cin- cinnati Southern Railway." Conveyances by said Trus- tees shall be signed by not less than three of them. They sh ill keep an office and an agent in the city of Covington, and an agent in every county through which said railway runs, upon whom service of process may be made. Actions against them or against the lessee or lessees of said line of railway, or persons or company op- erating it, other than those mentioned in sections ninety- three and ninety-four of the Code of Practice in Civil Cases, may be brought in any county in which any part of the said railway lies. When an action is rightly brought in any county, process may be issued to the county in which CINCINNATI SOUTHERN RAILWAY. 103 the office of the Trustees is situate, and may be sent and returned by mail. And it is hereby made a condition upon which said Trustees construct and maintain said railway within this Commonwealth, that they thereby waive the right to remove any case from any of the courts of this State to any of the courts of the United States, or to bring a suit in any of the courts of the United States against any citizen of this State ; and a violation of this condition shall operate as a forfeiture of the rights, privileges, and immunities granted in this acl. SEC. 16. The persons or company operating said rail- way, or any part thereof, as lessee or otherwise, shall re- ceive and carry all pissengers and freight coming or brought to it or them to be carried, and they shall make no discrimination against citizens of Kentucky in carry- ing freight or passengers on said line of railway, or any parl thereof; nor shall they make any unjust discrimination in favor of through freights or passengers against any way freights or passengers, or against freights or passengi rs from other railroads connecting with said railway in this State; but they shall charge and receive only the same, and no more, for the same services in transporting freight or passengers going to or coming from o:ie connecting road, that they charge or receive upon those goin^ to or com- ing from any other. They shall keep an ollice and agent at some point along the line within this Commonwealth, and an agent in every county therein through which said railway iuns, upon whom scr.ice of process may be made; and it is hereby made a condition upon which such persons or company may lease t-aid railway, or any part thereof, or make any arrangement fur operating the samr, that such persons or company thereby waive the 1"4 CINCINNATI ROVTHKRK RAILWAY. right to remove any case from any of the courts of this Stan- to any <>[' the courts of the United Stales, or to bring a suit in any nf the courts of the United States against any citizen of this State; and a violation of such condition shall operate as a forfeiture of all rights ac- quired under such lease or nrrangement ; which forfeiture, and the other provisions of this section, this Common- wealth reserves the riglit to enforce by all ne( Pittsburg, Cincinnati, Loui>ville, Saint Louis. .Memphis, and New Orleans, for bridges below the mouth of tli imly, and shall submit to the Secre- tary of War, for his examination, a design and drawings of the bridge and piers, and a map of the location, giving, for the space of at least one mile above and one mile below the proposed location, the topography of the banks of the river, the shore-lines at high and low water, the direction of the current at all stages, and the soundings accurately showing the bed of the stream, the location of any other bridge or bridges, and shall furnish such other information as may be re- quired for a full and satisfactory understanding of the subject by the Secretary of War ; and if the Secretary of War is satisfied that the provisions of the law have be^n complied with in regard to location, the building of the piers may be at once commenced ; but if it shall ap- pear that the conditions prescribed by this act can not be complied with :it the location where it is desired to construct the bridge, the Secretary of War shall, after considering any remonstrances filed against the building of said bridge, and furnishing copies of such remon- strances to the board of engineers, provided for in this act, detail a board composed of three experienced officers of the corps of engineers, to examine the case, and may, on their recommendation, authorize such modifications in the requirements of this act, as to location and piers, as will permit the construction of the bridge; nor, however, diminishing the width of the spans contemplated by this act : Provided, That the free navigation of the river be not materially injured thereby. SEC. 5- That all parties owning, occupying, or opera- CINCINNATI SOUTHERN RAILWAY. Ill ting bridges over the Ohio river shall maintain, at their own expense, from sunset to sunrise throughout the year, such lights on their bridges as may be required by the Light-House board for the security of navigation ; and all persons owning, occupying, or operating any bridge over the Ohio river shall, in any event, maintain all lights on their bridge that may be necessary for the security of navigation. SEJ. 6. That any bridge constructed under this act, and according to its limitations, shall be a lawful struc- ture, and shall be recognized and known as a post-route, upon which, also, no higher charge shall be made for the transmission over the same of mails, the troops, and the munitions of war of the United States than the rate per mile paid for the transportation over the railroads or pub- lic highways leading to said bridge ; and the United States fchall have the right of way for postal-telegraph purposes across any such bridge; and in case of any litigation arising from any obstruction or alleged obstruc- tion to the navigation of said river, created by the con- struction of any bridge under this act, the cause or ques- tion arising may be tried before the district court of the United States of any State in which any portion of said obstruction or bridge touches. SEC. 7. That the right to alter or amend this act, so as to prevent or remove all material obstructions to the navigation of said river by the future construction of bridges, is hereby expressly reserved, without any liabili- ty of the government for damages on account of the alteration or amendment of this act, or on account of the prevention or requiring the removal of any such obstruc- tions ; and if any change be made in the plan of con- struction of any bridge constructed under this act, during 11- CINCINNATI BOCTHEttN RAILWAY. (hi- progress of the work tlirn-on or befoiv the comple- tion of such bridge, such change shall bo subject to the approval of the Secretary of War; and any change in the construction, or any alteration of any such bridge that may be directed at any time by Congress, shall be made at the cost and expense of the owners thereof. SEC. 8. That joint resolution number ten, approved April seventh, eighteen hundred and sixty nine, author- izing the construction of a bridge over the Ohio river at Paducah, be, and the same hereby is, repealed. Si:c. 9. That the provisions of an act entitled "An act to provide for the better security of life on vessels pro- pelled in whole or in part hy steam," &c., approved 1-Vh- ruary twenty-eighth, eighteen hundred and seventy-one, so fur as they relate to the limitation of steam pressure of steamboats used exclusively for towing and carrying freight on the Mississippi river and its tributaries, are hereby -so far modified as to substitute for such boats one hundred and fifty pounds of steam pressure in place of one hundred and ten pounds, as provided in said act for the standard pressure upon standard boilers of forty two inches diameter, and of plates of one-quarter of an inch in thickness; and such boats may, on the written permit of the supervising inspector of the district in which such boats shall carry on their business for a period of twelve months from and after the passage of this act, be permitted to carry steam above the standard pressure of one hundred and ten pounds, but not exceeding the standard pressure of one hundred and fifty pounds to the square inch. J. G. ELAINE, Speaker of the House of Representative* . SCHUYLEK COLFAX. Vice President of the United State* and 1'retidtnl of the Senate. Approved December 17, Ib72. D. 8. GRANT. A SHORT SKETCH ,-,,< itmttttafi i Italia no<>!j(i ('if i/ 1 )i rector// . GHATTAN< \ .\M> ./<>/; L87M. II I K CINCINNATI MilTIII.RX RAILWAY. i>ur llmiied space prevent* adequate mention oitiir -r.-nr which ha* already l>oth directly and Indirectly done *omuch fur >ur city, and II. early completion <>i \vliii-h pn>mi-e- u* *ueh important result*. Ills dittlctilt l<> o\ i -re-i imate either it- importance i i tiirininiti, ' :illtl the country in general a- a L-reat pnMic I horou'_'lifare. or the -t upenduoiis 11:1 Hire of the 'M-'ll III" enei-L'.v :.i,.| ri 1 1. Tpri-.il I u' li'-ei i City otthe \Vc-t ha\e III it*. pro.-i-rlltiliM nvrn-oliii.. i M the f,, rnier -onie idea e. in he obtained from :i men- ulanc. of tin- ni:ip. preciate the latter it k| nally iro over I In- uroinul. The scheme oi a Southern railroad to connect Cincinnati with I'em lessee and the South irem-rally. has lieeu a favorite one with the people of that i-ily, tor aliout forl \ yeari pareak of war loim ili-l.Tr.-.l !!- f\,-i-iHioii Tin- eity In it- corporate capacity finally took hold of the' work, and the.-ity >< Cincinnati ha^ luiilt and it -."If own- tin- road. The measure Ilr-t took 1 1- -111111 -hape t>\ ihe pa -au'e in |sii;i ot a law popularly known as tin- |-'i-ri:uoii A'!. "from it* author, the Hon. K. A. 1-VriiUMMi. one of the leadim: lawyers of i hio. to \i -'i\- -kill, energy and devotion to this ureal eiiterpn-e, it- in- -prion and ~i\<-- fill pro- eeution. are in a lar.'e meusure owinir. rnderthe provisions ot this aet ( 'halt tnoo^a was l.y the City Coiineil of Cincin- nati designated as t hi- Soin hern terminus, and an issue of ten million do! l.onds of Cincinnati was authori/ed hy vote of tin- | i>li-. Sul.se.ni.-ntly an addi- tional issue ol >i x million- wa- made after another vote, and the early issue of two millions additional is anticipated which will^utlice to complete the work sulli- ciently to run trains throiiirh from ( 'incinnati to ( 'hattanooga. The work has lieen conducted und,'!- a Hoard of MM- Trustee.-- appointed hy the Superior Court of Cincinnati . The Hoard at present consist* of Mile- President. |.; \. l-Vr-usoii. |j. M. l!jsl,op now i iovcrnor of < >hio , Henry Mack and .\.H.Buirher.allwcllknowuand representative citi/ens of Cincinnati, the tirst mil I thre,. having heeii in Ihe Hoard since it* fn - it ion. The railway is three hundred and thirty-six mile* in length. It has four lartfc liriilu'e-; crossini: the Ohio, tin- KentucKy, tin- ' 'uml.crlaiid and Ti'iuiessee rivers. The Northern portion runs through the Itlue ( irass region of Kentucky,;, . Southern throu-.;h the' valley of the'IY sssee. The interim'. Hate portion crosses the Cumberland mountain or tjihle land n Home Idea of the enLrineeriiiLr dittirult ic*. may he ira there I n-om the .statement that there are throiiulioiit a distam-e of ahout I"i7 miles, from two miles north of th lucky river to the northern end of Koane county where ihe road drops into the Ten- nesae valley, twenty-seven tunnels with an uirrei;ate lenirth of foiiraml ninety-nine hundre.ltlis mile-, the lan.'e-t 1,1'inx' Ihe Klnn's Mountain tunnel, through Kin-- Moiinlaln, Kent ucky, alx.u 1 -hsofamile in lenu'tli. ami that on no con- tinuous hundred miles in any railway in the I'niied State*, not even tin 1 io the natural d illicit It ie* ,-:in-i -m-h e \pc-n-ive work as on the hundred mile* southward from - Kentucky. Yet throughout the whole lenurth of this mighty work there i- not a -im.- .rve, nowhere a irrade alio\ to the mile, and on a lart;e )>ortlon of the mad the maximum u-rade :- The workmanship i- of a ijintlity ran-l\ <-i|iialed in any roail in tin- world, and the Mid eoiupeteni supervision i uri !!_ i t s progress has been m-h a* i* 3 seldom seen. The masonry is of superior and permanent character, and except a few wooden st met 1 1 res over SHIM 1 1 st roa iiis, I he iiiiinerous bridges thus t';ir an- all of iron, and what is rare e\en in^ood roads haveall I.een thoroughly inspected hy i In- Railway, lirst at I lie shops of the manufacturers, and a ft crw.tr. Is in the course nf erection. Of the four largest bridues all are complete,! except t he one over the Tennessee river, ei-ht miles hy water or six hy land ahove our city, and that is si,b- stanlially llnished and will don lit less hi' coni)ilete ahoiil the lime on r hook is in the hands ,.f it> reader-. This bridge haslrom its earliest inception heen under the su- pervision of our esteemed fellow oit i/.en Samuel \Vhinei\\ , Ksq, Division Kuirinoer of Division I oft lie l 'incinnati Southern Railway, whoso reputation in this com- munity for skill and ellicienoy in his proles-ion is a sufficient guarar.tee of a hi-h decree of safety and e\,-el lei ce in the structure. The bridge is eighteen hundreil and four ( Hu|, feel loir.:, and the track sixty-four 'h I'eei ahovo low \valer mark. Tin- masonry is from superior limestone taken from <|u:irrios on thoTennos- > riv- er. This stone hy actual scientific test shows a slrenirth superior to that of any limestone yet tested in the I'liitoi! Slate-.. The bridge on the Kentucky river is the highest pier bridge in the world, having an all it ui le oft wo hundred a 'id seven! y-ti ve foot ahove t ho surface of the water. The railway is completed and running regularly from Cincinnati to Somerset, Ken- i uoky, a ilistance of one hundred ami fifty-seven and one-half mile-, hoi m; about half way from Cinein lati to ( 'hatlanooL'a. It is oporatoil hetween ( 'iiicinnai i and Somersot hy t he ( 'i noiniiat i Southern Railway ( 'ompany. ;jon orally called I lie Com- mon ( 'a r piers' ( 'onipany. organized under what is nown as the "Common ( 'ardors' Law" ofOliio. The company is composed nearly altogether of citizens of Cincinnati. Their lease i- a temporal \ one which the Trn-le-s have a rijrlit to terminate on ^ivin<: no- tice, and is on ly designed to make the completed portion of use until arm (moments :.r ma do for running the whole road. The reports of the Common ( 'a friers' Com- pany, which have from time to time appeared in the press, make a most jrratifyins: showing for the future ol the railway. Although running only a fruamontary road and having a rival line as far as !, xinuton, they have, oven In tin- recent times ol financial depression, been aide to roali/.o profits for themselves and pay over hand- some sums as the city's share of Hie earnings. This succ M encourages the people of Cincinnati to hope for such a return when the whole road is completed, as will materially lessen the hurdon of taxation hy the direct receipts from the earn- ing- of the railway, though they expect the returns for their out lay principally in the groat increase which it will ive to the trade ami manufactures of the city. South of Somerset the track is laid for a distance of three and a half ''!'.,, miles to I 'it man's Creek, and the bridge over 1 'it man's i 'reek is I'm i shed. South of Pitman's ( 'reek the track is not laid, hut the sjradinic and masonry, i no hid in-: tunnels, bridge piers, etc., are complete to within about four miles of Chattanooga, and I he super- structure of the Cumberland and Tennessee river bridges done, except a few days' work on the latter. So thai substantially all t hat remains to he done to complete the road through is to build the four miles next to t 'hattanooira and to provide iron t rest 1 iiij.' and the superstructure of the smaller bridges from I 'it man's Crook south- ward, and to lay down the cross ties and rails. Iiepot facilities, and shops arc- also to he provided. Throughout a considerable portion of Hie road the cro lies a re already piled ii)) ready for use. and Hie Trustees have on hand a considerable quantity of iron and stool rails ready to be laid down. As we to pre-s, ' April. IsTSi the HOWS reaches n> of the passage, in tho< h islaturo, of the Act providing for the issue of the additional two millions, subject to a vote of the people of Cincinnati. The vote of the people will spoedih follow and will probably ord.-r the issue of the bonds. Shduld it even be adverse, howev- er, there will be no question of the completion ol the railway, as there is authority for lousing the railway to parties who will complete it, and the people of Cincin- nati, though not a'/roeim,' in all particulars of how it should be done, are thorough- ly a wakened to the importance and neces-.it> of complei im: t ho now almost fin- ished work, and reaping the rich rewards t|,ey hav. -uch nood reason to anticipate renamed limy be expect* ijilvllun. 'mil ill ll : railways, giving her direct and ail\Hut>^c< \ ,T<-;it ; tliitl if till* Illlfi il: \vilh I :. t in il ru i >ll \Vitll Ml"' U hull- Sulltll. I i.-sissippi. -luirt. with tiutt wtooto > iiinl iliri'd ..linn'. her people hve hn-li h:i!- pn-M-nti'i] her ^rtiwlli iroin pr il \x n t lie pralrt ;\ cotton fields, the Inkeft and the gulf, w< :\vdl up..n. for <>nr ritlzfi, rciili/i- Iln in. \ViIh -iiir railw;i\ systi-iu, uiir wmidt-rl'iil niuii uTacl i< >ur >oil iinil cliniali- and tin- jirovt-rl.ial i-iiiiipli-tifin i>f tlic i 'inri in tali Sniitlu-rit Kaii at and pnp>-r*iiiN t'utui'L 1 .