é ee AY Libr ra ThYVE: SITY OF i ILLINOIS - URBANA 2 meat IN THE ° SUPREME COURT OF OHIO December Term, ISG6S. | . THE STATE OF OHIO, ON THE RELATION OF THE ATTORNEY GENERAL, Us. THE CINCINNATI GAS LIGHT AND COKE COM- PANY. BRIEF FOR DEFENDANTS. B. A. FERGUSON, HOADLY, JACKSON & JOHNSON, See See i my Sess WRIGHTSON & CQ.. PRINTERS. 167 WALNUT ST,, © Nn. LIRARY UNIVEL/SITY OF ILEINGI3 URBANA IN THE SUPREME COURT OF OHIO. DECEMBER TERM, 1868. THE STATE OF OHIO, ex rel. The ArrorNeY GENERAL Against Quo Warranto. THE CINCINNATI GAS LIGHT AND COKE COMPANY. STATEMENT OF PLEADINGS. The Information filed at the December Term, 1867, charges that the defendant, without any warrant, usurps the following franchises: 1. That of being a body corporate. 2. That of having and exercising an exclusive right 1 ¢ to open and use the streets of the city of Cincinnati for - the introduction of pipes for conveying gas to the city and ~ citizens thereof. oe PAbeThatior conveying gas through said pipes and _, supplying the same to the city and citizens, and charging ~ therefor at the rate of $2.50 for each thousand cubic feet ‘to each consumer of the same. | Four pleas were filed by the defendant at the same term. The jirst states the charter, passed April 3d, 1837, 2 by which certain persons therein named and their asso- ciates were thereby created a body corporate and politic, with perpetual succession, by the name and style of “The Cincinnati Gas Light and Coke Company,’ with full power and authority to manufacture and sell gas to be used for the purpose of lighting the city of Cincinnati, or the streets thereof, or the houses therein contained, to erect works and apparatus, and lay pipes for the purpose of conducting the gas in the streets of said city; but before digging up the said streets, the consent of the Council of said city, for that purpose, was to be obtained. That on the 16th of June, 1841, the said city made a contract with James F. Conover, granting to him, his associates, their heirs, assigns and successors, the ful/ and excluswe privilege of using the streets of the said city for the purpose of conveying gas to the city and citizens thereof, for the term of twenty-five years from the date of the contract, and thereafter until the same should be purchased by the city as therein provided, and also grant- ing the full and exclusive power and authority to open and use the said streets for the introduction of pipes for gas. That in consideration of the said privileges, said Conover, for himself, &c., agreed to furnish to the said city on the streets where pipes should be laid for sup- plying citizens with gas, such quantities of gas as might be required by the City Council for public lamps at two-thirds of the lowest average price at which gas should or might be furnished to private individuals in the cities of New Orleans, Baltimore, New York, Louis- ville, and Pittsburg, and for the like price to provide gas for lamps at the Engine Houses or other public. 3 buildings or bridges belonging to the city. That said Conover, &c., should have laid within two years six thou- sand feet of leading pipe for gas, and should annually lay four thousand feet more until the principal parts of the city should be furnished with pipes and that after the expiration of the said twenty-five years the said City Council should have the right and privilege of purchasing the works at a fair price and compensation, which should - be ascertained and determined by five disenterested persons, two to be selected by the City Council, two by Conover or his assigns, and the fifth by the four thus selected. That after making this contract, Conover associated with himself James UH. Caldwell, and assigned one-half of his rights and privileges to him. That after- wards, on the fifth day of September, 1842, Conover and Caldwell assigned the said contract and all the privi- leges of lighting said city and using the streets thereot for the purpose mentioned in the contract to the defend- ant so incorporated as aforesaid, which was consented to by the said City Council, on the 14th of September, 1842, bya resolution passed for that purpose, subject however to the terms and conditions in the contract, specified, from which time the defendant had in all res- pects done and performed the things which were required to be done and performed under it by said Conover. And the plea concludes as follows : “ And the said Cincinnati Gas Light and Coke Company further say that by force of the said Act of the said General Assembly, and the provisions thereof, they still continue to be, and are, a body corporate and politic, in fact and in name, and are entitled to do all lawful acts, 4. and to enjoy all the rights, privileges, franchises and im- munities allowed to them or conferred on them by said act, or said contract, or by the law of the land, by virtue whereof the said Cincinnati Gas Light and Coke Com- pany, for all the time in said information in that behalf mentioned, have used and exercised the liberties, privi- leges and franchises following, to wit: that of being a body corporate and politic, in law, fact and name, by the name of the Cincinnati Gas Light and Coke Company, and by the same name, to plead and be impleaded unto, unswer and be answered unto; and also, of having and exercising an exclusive right to open and use the streets, lanes, alleys and commons of the city of Cincinnati for the introduction of pipes and other apparatus for gas, for the purpose of conveying gas to thesaid city and citizens thereof; and also that of conveying gas through pipes and other apparatus laid in the streets, lanes, alleys and commons of the said city of Cincinnati, and supplying the same to the said city and the citizens, and charging as and for the price thereof, at the rate of two dollars and fifty cents for every thousand feet thereof, to each consumer of the same, other than the said city. And as to the residue of the liberties, privileges and fran- chises in the said information above specified, upon the said State of Ohio, supposed to be usurped by the said Cincinnati Gas Light and Coke Company, they say they never used, nor do they now use, the residue of the said liberties, privileges and franchises; without this, that the said Cincinnati Gas Light and Coke Company, the said liberties, privileges and franchises in said information above mentioned, or any of them, have usurped and did 5 usurp, upon the said State of Ohio, in manner and form as by the said information is above alleged against them; all of which the said defendants are ready to verify and prove as the Court shall award. “Wherefore they pray judgment, and that the said liberties, privileges and franchises may be allowed and adjudged to them.” The second plea is the same as the first, with the ad- ditional averment that, by virtue of the charter, the contract and the law of the land, the defendant, “for all the time in said information in that behalf men- tioned, and for twenty years continuously prior to the filing of the same, have used and exercised the lib- erties, privileges and franchises,” as stated in the first plea. The third and fourth pleas were held to be bad on demurrer at the last term, and need not be stated. At the December term, 1&68, the defendant filed a jifth plea. It contains all the allegations of the second plea, which aver the Company’s charter, the Conover contract and twenty years’ use, and in addition, it alleges that the City Council by ordinance passed August 31. 1853, required it to furnish gas to citizens or private consumers at $2.25 per 1,000 cubic feet, that it refused and neglected for more than eleven months to comply with this requisition, that therefore on August 23, 1894, the City Council, by ordinance, re-enacted the Conover contract, specifying, however, that the privilege of pur- chase might be exercised at any time after 25 years from the date of the original ordinance, June 16, 1841, and the defendant accepted, and has kept and fully per- formed the same, and to the date of the information had 6 laid much more than four thousand feet of leading pipe for gas, annually, being in all more than ninety miles of such pipe, and had supplied the principal parts of the city therewith, had expended in money in the construc- tion of gas works and appurtenances necessary to the performance of said contract, more than $1,930,587, had entered into separate written contracts with more than 10,568 private consumers, binding itself to supply them respectively with supplies of gas of the standard quality, and had furnished the public lamps of said city with gas at two-thirds the lowest average price at which, during said period, gas was supplied to private individuals of the cities of New Orleans, Baltimore, New York, Louisville and Pittsburg. It also alleges that by preamble and resolution of the City Council passed August 23, 1866, it was recited that by act of the General Assembly passed April 6, 1866, it was provided that no portion of said bonds thereby authorized, should be issued until after the question of the purchase of the gas works should have been submitted to vote of the qualified electors of said city, at an election to be specially held for that purpose, and a majority should decide in favor of said purchase, and it was further recited, that the City Council deemed it expedient and proper, that instead of entering into any further contract with the Cincinnati Gas Light and Coke Company, the question of purchase be referred to the decision of the people at a special election, as is provided by law, it was therefore resolved, that the Mayor issue his proclamation calling such special election, on Tuesday, October 9, 1866, for the purpose of voting for or against such purchase, and that the City Clerk, cause to be printed a sufficient number of two sets of ballots for use at each voting place, upon one of which should be printed : nel itl 7 “SPECIAL ELECTION. To decide for or against the purchase of the Cincin- nati Gas Light and Coke Company’s Works, — FOR THE PURCHASE OF THE GAS WORKS.” and upon the other set should be printed : “SPECIAL ELECTION. To decide for or against the purchase of the Cincin- nati Gas Light and Coke Company’s Works, AGAINST THE PURCHASE OF THE GAS WORKS.” And that a separate ballot box should be provided, and three judges and two clerks specially appointed to con- duct the election in each ward. It also avers, that said special election was duly held on Tuesday, October 9, 1866, and a majority of the electors of said city voted “for the purchase of the gas works,” and on November 16, 1866, the said City Council resolved to appoint a committee of five, to recommend the names of suitable persons from whom to choose appraisers to meet a like number appointed by the Company, “ who should proceed to appraise the pipes, buildings, fixtures and other apparatus owned and used by said Company in and about providing the citizens with gas, in accordance with Section 7, of the ordinance contracting with James F. Conover and associates, to furnish the city with gas, passed June 16, 1841,” and that said committee should also obtain all necessary information on the subject of the manufacture of gas, the cost of construction of gas works, and everything of interest bearing upon the sub- 8 ject, and report to Council “what legislative action is nec- essary in order to authorize the city to procure money for the purchase of said works:”—that said committee was appointed, and after January 23, 1867, having recom- mended the names of five persons by them deemed suita- ble, the City Council, by ballot, selected Miles Greenwood and Henry Kessler as such appraisers, and informed the defendants of such selection, and the defendants thereupon selected Oliver G. Steele and Henry Day as appraisers on their part, and notified the City Council thereof, and said four appraisers then met at said city on May 18, 1867, for the purpose of selecting a fifth appraiser, and proceed- ing with the valuation, and that they organized by the selection of Henry Kessler as chairman, and Henry Day as secretary, and having failed to agree in the selection of such fifth appraiser, have adjourned to meet upon the call of their chairman. The plaintiff filed three replications to the first and second pleas. The first is, that “neither the Cincinnati Gas Light and Coke Company nor the persons acting under such name and style, are the persons named in said Act of the General Assembly, nor their associates, nor the successors of such persons, or of their associates,” with a conelusion to the country. To this replication there is a general demurrer by the defendant. The second replication is, that the defendant during the time mentioned in the information, nor at any time, did not have or exercise an exclusive right to open and use the streets for conveying gas to the said city and citizens thereof, as alleged in said pleas, or otherwise, with a conclusion to the country. al es 9 To this replication there is a speczal demurrer, because it doesnot aver that any person or corporation other than this defendant did, during the time mentioned in the in- formation, have or exercise any right to open and use the streets, Xe. | The third replication is as follows : “And the said William H. West, Attorney General, for a further replication in this behalf, saith that true it is that the Cincinnati Gas Light and Coke Company did charge as the price of gas supplied and furnished to the citizens of said city of Cincinnati at the rate of two dollars and fifty cents for every thousand cubic feet thereof, as alleged in said pleas, but the said Attorney General further saith that the said General Assembly, by an act passed on the 5th day of April, 1854, provided “ That “after the passage of this act, it shall be lawful for the “ City Council of any city in which a gas company has been “or may be hereafter established, to fix from time to time, “by ordinance, the minimum price at which such council “shall require such company to furnish gas to the citizens “or public buildings of such city, or for the purpose “of lighting the alleys and public grounds thereof, for “any period not exceeding ten years; and from and “after the assent of said company to such ordinance, by “a written acceptance thereof, filed in the clerk’s office “of such city, it shall not be lawful for said city council “to require the said company to furnish gas to the citizens, “public buildings, public grounds, or public lamps of “such city at a less price during the period agreed on, “not exceeding ten years as aforesaid: provided that this “act shall not operate to impair or affect any contract “heretofore made between any city and gas light, or gas 10 “light ard coke company.” And that the City Council of the City of Cincinnati, on the 16th day of August, 1857, by an ordinance, duly passed, provided, “That for “the period of one year from and after the first day of - “September, A. D. 1867, the Cincinnati Gas Light and “Coke Company shall furnish gas of the standard quality “to the public buildings of the City of Cincinnati and “to citizens or private consumers at the rate of two “dollars for each one thousand cubic feet so furnished, “and shall not charge any greater sum than that herein “snecified; provided, however, nothing herein is to be so “construed as a waiver by the City of her right to obtain ‘‘ nossession of the works of said company, as provided “ by contract therewith.” And this he is ready to verify, and therefore prays judgment Xe.” To this replication the defendant filed four rejoinders. The first is, that by a decree of the Circuit Court of the United States for the Southern District of Ohio, in a cause wherein Sophia C. Deane was complainant and the defendant and the said city and others were defendants, the defendant was at the October term, 1867, enjoined from obeying, and the said city and all the. citizens thereof from enforcing said ordinance of the 16th of August, 1867, which decree was, when the information was filed, and still is m full force. The second rejoinder is, that the defendant has not as- sented to or accepted the said ordinance. The third is, that about the first of March, 1867, the City Council elected to purchase the works under the con- tract, appointed two appraisers and notified the defendant who also appointed two, and the four met, but disagreed as to the appointment of a fifth, because the two appointed we Tl by the city insisted that the fifth should be like them- selves interested in the result of the appraisement, by “being a tax-payer of said city or otherwise subject to the influence of the interests of the government and people of said city;” which action on the part of the city appraisers was in pursuance of a secret understanding with a ma- jority of the members of the City Council, and was for the fraudulent purpose of depriving the defendant of a fair appraisement. That in pursuance of the same fraudulent purpose, a secret meeting of said members was held, when it was resolved to pass and enforce the ordinance stated in the said third replication, although it was well known to them that the price named therein was not and is not an adequate price for gas in said city, and to carry out said fraudulent purpose, the same mem- bers who composed said secret meeting, adopted said or- dinance The fourth is, that in September, 1858, the Prosecuting Attorney of Hamilton County, upon the relation of Samuel M. Hart, filed an information in the nature of a @uo Warranto, inthe name of the State against the defendant in the District Court for said county, whereby the Court was informed of the corporate; or- ganization of the defendant; that it was provided in its charter that any future legislature might alter, modify or repeal the same; that the legislature, by an act passed March 11th, 1853, so altered said char- ter that the said City Council was empowered to regu- late by ordinance the price which the defendant might charge for gas furnished to the citizens, public buil- dings, and streets of said city, and that if it charged more it should forfeit its rights under said charter. That LIBRARY “~~ UNIVERSITY OF ILLINOIS 12 in pursuance of said act, the said City Council, on the 31st of August, 1853, passed an ordinance by which the price for gas furnished citizens and public bualdings was fixed at $2.25 per thousand cubic feet; that the defend- ant wholly disregarded the requirements of said ordin- ance and exacted $2.50 per thousand cubic feet from said citizens and other consumers of gas; wherefore judgment was demanded that the defendant be excluded from all corporate rights and be dissolved. That in October, 1858, the defendant pleaded several pleas, the first of which was in substance the same as the first in this case pleaded, setting forth the charter, the contract and its assignment, by virtue of which, it was claimed, the defendant became invested with the exclusive privilege of lighting the city of Cincinnati with gas and of furnishing the city and citizens of Cincinnati with gas for the period of twenty- five years upon the terms set forth in the contract, which contract, it was claimed, could not be altered, modified or in any manner changed, by any legislation of the State of Ohio, or by any ordinance of the city of Cincinnati. That in May, 1859, the State filed its demurrer to said plea because the same was not sufficient in law to bar the State. That at the May term, 1859, of said District Court judgment was entered, finding said plea valid in law and that the facts therein set forth were a bar to the relief sought by the plaintiff in the information, and dis- missing the same. And the defendant avers in said fourth rejoinder that said judgment was in full force and unreversed, and prays judgment whether the State ought to be admitted or received against said judgment to plead the third replication. 7 At the December term, 1868, the defendants filed a jifth rejoinder to the plaintiff's thard replication. S“81292—£r-9—W0E i 7h BG Ul {NV AOVA AHL NO OO oq} ynoqe uory ; fo Maat -EUIIOJUL I94}0 pue suOT}OIIIp [eloads ppy | ‘}deq Sojeies { paataoai1 93eq (aBurues) (SOATOYS @AIBSI1) Yous yoog 0} puss pesojeies usyA | “41 TIL jo ‘ATUG) AQ POAOI yy ~rrerrorerorrorrnrenronrorenreweosrorenrenees< KG PIPUIUIWI0IIY Areiqvy ul ON 1 ee =""""0} pasieyo aq OF er : 5 CY G0 Ook 4% be \ | 37 3 ret qnd jo 93eq y 8 Ag v Se yt h! % Nil Oe, Ig jo 21eq 13 _ This pleading is similar to the fourth rejoinder, except that it alleges that the Attorney General, acting herein as relator, filed the information in this cauze, upon eom- plaint caused to be made to him by the City Council of the city of Cincinnati, and not because of anything com- ing to his knowledge otherwise; that the relator in the information filed by Prosecuting Attorney O’Connor, in the District Court of Hamilton County, Samuel M. Hart, Esquire, was then City Solicitor of the city of Cin- cinnati, and acted therein by direction of the City Coun- cil of said city. Then, after fully setting forth the pro- ceedings and judgment of the said District Court, as in the fourth rejoinder, is added that at the time of the judgment of the District Court, the capital stock of the defendants amounted to $766,840, and their investment in real estate, gas pipes, gas holders, and other necessary permanent improvements and fixtures for the lighting of said city, to $834,708 only, and that on the faith and credit of said judgment they have, since its rendition, purchased other real estate, have laid annually in said city more than 4,000 feet of leading pipe for gas, have kept and fully performed said contract, have supplied said city with gas for public lamps at two-thirds the low- est average price at which gas was furnished during said time, to private individuals, in the cities of New Orleans, Baltimore, New York, Louisville and Pittsburg, have built new gas holders and enlarged their works, and before August 16, 1867, had bound themselves by separate written contracts to 10,568 private consumers of gas, to furnish them respectively with gas of the standard quality, and in so doing have been obliged to expend in perma- nent improvements necessary to the performance of said 14 contract, and without which it could not have been per- formed, the further sum of $1,095,879, and have increased their capital stock to the total sum of $1,844,900, and their property is of the value of millions of dollars, all of which, except the said sum so invested at the date of said judgment, has been invested in reliance upon said judgment, and used in the performance of said contracts with said city and said private consumers, and the sup- plying said city and its citizens with gas, To all these rejoinders there is a general demurrer on behalf of the State. Pr Credit, Led Yo | &, AA % 2 x ” Nl tg t'te 5 et 5 Baty 15 POINTS AND AUTHORITIES FOR DEFENDANT. I, The first replication is a departure in pleading. The information admits the existence of the corporation, or that it once had a legal existence. Ifit was intended to charge that certain persons usurp the privileges and franchises of the corporation created by the act of April 3, 1837, the proceedings should be against the usurping individuals, and not treat them as a corporation. Only corporations and individuals can be sued in quo warranto. Under the act of 1846, partnerships and trading companies not incorporated may be made de- fendants in cases in which money judgments can be rendered against them. 2 Swan & Cr, 1138. But there is no authority to sue a partnership or unincor- porated trading company in quo warranto. On the con- trary, under the Attorney General Act, (1 & & C, 89), the defendant must be either a corporation, or “person or number of persons.” Hence the corporate existence can not be here denied, and the replication is a departure, for which error, demurrer is the remedy. Durbin vs. Fisk, 16 Ohio State, 538. But two species of quo warrantos involving corporate rights are known. First—Against the corporation to inquire why it exercises franchises not conferred, or justly forfeited. 1S. & C, 89, Sections 9-10. 2 do., 1266. Secondly—Against individuals, to inquire by what au- thority they claim to be a corporation. 18. & C, 89, Section 12. 2 do, 1265. This case falls within the 16 first class in the information, in the second class in the replication. See Pollexfen, arguendo, 8 Howell’s State Trials, 1214. State vs. Granville Alex. Soc. 11 Ohio, 9. State vs. Buckland et al, 5 O. S., 216. Commercial Bank of Natchez vs. State,6 Sn. % M., 599. People vs. Rennselaer & Saratoga R. R. Co., 15 Wend, ShISS Commonweulth vs. Central Passenger R. R. Co., 52 Penn. St., 510. | 2 Saunders, 84 a-84 d. Angell & Ames on Corporations. §756. Grant on Corporations. *300. Stephen on Pleading. *410. 17 II. The second replication is had for two reasons: I. It does not aver any new facts, either in bar or by way of confession and avoidance of the first and second pleas. One of the charges in the information is that the defendant usurps the franchise of having and exercising an exclusive right, &c. The defendant could only justify or disclaim. The former is done by pleading, in the first plea, the charter and the Conover contract, and in the second, the charter, the Conover contract and twenty years continuous use of the franchise before the filing of the information. The facts of the jirst plea are expressly admitted, and those of the second plea are not denied, and whether, on these facts, the defendant has an exclu- sive right, is a question of law. The second replication, therefore, raises questions of law only, and must be treated as an informal demurrer. A proper issue can not be made by a traverse of the legal conclusions in a plea: that is the office of a demurrer. Now, the pleas are sufficient: the “st plea, because the Conover contract is valid and binding as between the parties to it. It created a right exclusive as against the city, until purchase as provided in it. Whether the State could have interfered, or can now interfere, and by legislation directed to that end, grant a like right to others, need not be discussed. The right is, in fact and law, exclusive until some other person or corporation shall possess a lawful similar right. As far as the city is con- cerned, the Conover contract was made in the proper ex- ercise of the powers granted by the acts of 1834 and 1839, and its validity has been frequently recognized by the Legislature. 18 32 Ohio local laws, 250. 37 66 66 éé 9,99. 62 Ohio laws, 96. Cire eiuedibes be ¢ 4 64 66 66 Fb Folz vs. City of Cincinnah, 2 Handy, 261. Bailey vs. New York City, 3 Mill 531. Wes. Sav. Fund Soc. vs. City of Phil. 31 Pa. St. 181. The second plea is sufficient for the same reason: also because the use and exercise of the franchise for twenty years is a bar to the action. 2 Swan & Critchfield, 1270. Angell 5 Ames on Corporations, § 743. State vs. Granville Alex. Soc., 11 Ohio, 9. State vs. Mian Exporting Co. “ 126. — People vs. Oakland Co. Bank, 1 Douglass (Mich.) 285. Rex vs. Stacey, 1 Lerm Rep., 1. Winchelsea Cases, 4 Burrows, 1962. 19 2. If the second replication be treated as a pleading of fact, as it seems to have been intended, it is bad be- cause it fails to show what other person or corporation did have and exercise the right thus denied to be exclusive during the period mentioned in the information. To be a proper pleading of fact, it should not admit the facts pleaded, traverse the legal conclusion, and conclude to the country, but should either traverse the facts pleaded, be- cause had and exercised lawfully by some other person or corporation. Stephen on Pleading, * 191, 284, 388. 1 Chitty Pl. *236, 261, — Anson vs. Stuart, 1 Term Rep., 748. People vs. Thompson, 16 Wend. 656. 20 ITI. The fifth plea pleads in addition to the facts stated in the second plea, the re-enactment of the Conover contract in 1854, and the attempt now making to enforce it under Legislative sanction, in accordance with a vote of the people of the city, held in pursuance of law. If the right were not exclusive before 1854 as against the city, it was made so then. If not exclusive before 1866, the action then taken gave it that character. A perfect estoppel is shown as against the city, recognized and sanctioned by the State. McIntire Poor School vs. Zanesville Canal & Man. Co. et al. 9 Ohio, 203. Miami Exporting Co. vs. Clark, 13 Ohio, 1. 21 Le As the Court, in passing on the plaintiff’s demurrer to the defendant’s rejoinder, will consider the whole record, nN we propose to argue the following questions: First. Is the Act of April 5th, 1854, an alteration, modification or repeal of the defendant’s charter. Dwarris on Statutes, 533. Constitution of Ohio, Article 2, Section 16. Pim vs. Nicholson, 6. O. S. 179. In the matter of the Reciprocity Bank, 22 N. Y. 9. Western Saving Fund Society vs. City of Philadelphia, 31 Penna, St. 181. > Dodd, et al, vs. State, 18 Indiana, 56. 22 Secondly. Was it the intention of the General Assem- bly to confer power on the City of Cincinnati to fix the price of gas without consent of the defendant. Plumb vs. Sawyer, 21 Conn. 351. Grinder, et al, vs. Nelson, 9 Gill, 299. Von Schmidt, et al, vs. Huntington, et al, 1 Cal. 58. Thirdly. Tf such was the intention, is not the exercise of the power as against the defendant barred : 1. By the decree stated in the first rejoinder. —, i 23 2. By reason of the facts stated in the third rejoinder. 2. S. and €.1559, Section 13. Davis vs. Mayor, Sc. of New York,1 Duer, 452,494, 495, 506. 3. By the judgment set up in the fourth and jifth rejoinders. Grant on Corporations, *298, 301, 307, 308. 2 Coke's Institutes, 49 6. Angell and Ames on Corporations, $752. Duchess of Kingston's case, 2 Smith’s leading cases, 688, 689, 696, 697. Grant vs. Ramsay, 7 O. S. 157. Babcock vs. Camp, 12 0. 8. 11. Bouchaud vs. Dias, 8 Denio, 238. People vs. Richardson, 4: Cowen, 120. People vs. Utica Insurance Company, 15 Johns, 387. Darby vs. Regina, 12 Cl. and Fin. 520, 537. Rex vs. Carmarthen, 2 Burrows, 869. Rex vs. Ogden, 10 B. and C. 233. Goddard vs. Sith, e¢ al, 3 Gray, 122. 24. Rez vs. Carpenter, 2 Shower, 47. Anonymous, 12 Mod. 224. Rez vs. Harford, 1 Lord Raymond, 426. People vs. R. and S. Railroad Company, 15 Wend,114. Utica Insurance Company vs. Scott, 8 Cowen, 720. State vs. Granville Alex. Society, 11 Ohio, 13,14. Gelston vs. Hoyt, 3 Wheaton, 316. Wilcock on Corporations, Sec. 498. Fourthly. Tf it was the intention to confer such power, does not the act and ordinance under it violate the de- fendant’s charter, and the contract between it and the city. Constitution of United States, Art. 1, Sec. 10. Constitution of Ohio, Art. 2, Sec. 28. 2 Kent Comm, *468. Note to 2 Sw. and C. 1534. Fletcher vs. Peck, 6 Cranch, 87. Taylor vs. Terrett, et al, 9 Cranch, 43. Dartmouth College vs. Woodward, 4 Wheat, 699. Green vs. Biddle, 8 Wheaton, 1, 84. Providence Bank vs. Billings, 4 Peters, 514. 25 Charles River Bridge Company vs. Warren Bridge Company, 11 Peters, 420. Bronson vs. Kinzie, 1 Howard, 311. McCracken vs. Hayward, 2 Howard, 608. Planters’ Bank vs. Sharp, et al,6 Howard, 301. West feriver Bridge Company vs. Dia, et al, 6 Howard, 507. Umted States vs. Babbitt, 1 Black, 61. Gelpcke vs. City of Dubuque, 1 Wallace, 175. Hlavemeyer vs. Lowa County, 3 Wallace, 294. Mitchell vs. Burlington, 4 Wallace, 270. Pingry vs. Washburn, 1 Arken, 268. Thorpe vs. Rutland & B. Railroad Company, 27 Vermont, 146. Boston & Lowell oe vs. Salem & Lowell Corp. eLal,2 Gray, 28. Da Bee vs. Hssex Co. 13 Gray, 239. People vs. Platt, 17 Johns, 195. Benson vs. Mayor, &c. 10 Barbour, 223. Ogden vs. Gibbons, 4 Johns, Chy, 160. Western Saving Fund Society vs. City of Phil- adelphia, 31 Pa. Sé. 181. Clarke vs. B.& P. Bridge Company, 41 Pa. St. 157, 160. Winter vs. Jones, 10 Georgia, 190, 195, 196, 200. Jemison vs. Planters and Mechanics’ Bank, 23 Ala. 168. Powell vs. Sammons, 31 Ala. 552. Grand Gulf Railroad and B. Co. vs. State, 11 Sm. & M. 429. New Orleans, dc. Railroad Company vs. Harris, 27 Miss. 538. 26 Murray vs. Menefee, 20 Ark. 560. Sage vs. Dillard, etal, 15 Ben Monroe, 356. Ohio & Miss, Railroad Company vs. McClellan, 25 Jl. 143. Robinson vs. Magee, 9 Cal. 81. Grogan vs. San Francisco, 18 Cal. 590. Le i