i ' €mmll Winxvmxi^ f Mtm^ THE GIFT OF ' ^.±l%:fopulation exceeding one hundred and fifty thousand inhabitants, passed May 4, A. D. 1869. Sec 1. Be it enacted hy the General Assemhly of the 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 effecf, 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 Representalives, J. C. LEE, President of iJie Senate. VIEWS OF THE PRESS Upon the Enterprise. CmCINNATI INTERESTS— SOUTHERN RAILROAD HOW THE CITY CAN MAKE IT. [From tbe Eailpoad EecOFd, Nov. 26, 1868.} No one will dispute the faet tbat we, with other Eoembers of the city press, have "said enough " about the importance of con- structing a railroad throuigh the State of Kentucky to connect us with the whole Southern system of railroads to have at least accomplished something;, hut we have to confess, thus far, all efforts have been a " most signal failure." There seems to be a sort of fatuity that has hitherto " blocked up. the wheels " oF private enterprise. Although we confess to a great lack of faith in corporate authorities to manage, eco)ioffuea?7?/,.the- constrnctioa ef any work, however small, yet sather than not have the road through Kentucky made, or even have- its coastruotion delayed for two or three years longer, we would say, adopt, by all means^ the plan suggested by E. A. Ferguson, Esq., and push forward the work to completion. We still contend that its coastrtiction by private enterprise would bo preferable, if it can be accom- plished ; and w© believe it can. This, however, is a matter o-f f^iith merely ;, we now not only want faith, but works, and if one. plan won't accomplish results^ the other will. Hence, we are in favor of having the law passed by the Legislature, and if private- enterprise shall not find a practical plan for its construction ia the next three months, or before the season af active ope-ratiaas CINCINNATI SOUTHERN RAILWAY. 13 shall again come round, why then let the municipality " cut its swath." The question of the ability of the city, under the constitution, to do this work is not a new one; while the disability to partici- pate in any enterprise as partner, has been admitted and re- gretted ; yet we have on various occasions indicated that by proper legislative action, the city could, alone, construct any work of internal improvement. We asserted this power in one of our issues of last September, and on several other previous oc- casions. The citiaens, however, owe many thanks to Mr. Fergu- son for giving shape" to the enabling act, and bringing it so forci- bly before them. It can not fail to meet with universal approval, and although there may be some points in the bill not perfect, yet in the cursory reading that we have given it, we have failed to perceive them. There is one other point to which we will draw attention. Legislative enactments and municipal enterprise, as a general rule, are "slow" in their operation; although we confess it would be diflBcult to conceive of any thing "slower " than the past liisioi'i/ of the " direct route " to the South, as con- ducted under individual effort. , Yet there were reasons of delay, that have been explained an hundred times — these are now re- moved, and real, active efforts are now being made, which, we trust, will result in success. The time now is when Cincinnati needs the road, and can not afford. to longer delay ; this we re- gard iS more important than how or by whom it is to be be built. CINCINNATI AND THE SOUTHERN RAILROAD. [From th& Cincinnati Enquirer, Kdv. 26, 1868.] Below we print a bill drawn by an eminent lawyer of this city, to be introduced at an early day in the present session of our State Legislature, designed to secure the completion of the long- proposed railroad connection between this city and the South. Of the importance of this measure it is- unnecessary for us to speak. Wc have often discussed it, and always to commend it. The bill, as drawn, meets the approval of our people, irrespective of party lines or political complexion. It is approved as the true 14 CINCISNATI SOUTHERN BAILWAY. and only solution of a great problem, and the achievement of a great purpose. Cincinnati needs this Southern Riilroad. Her people have felt its necessity for more than twenty years, and have more than twenty times essayed to build it. They now ask the Legislature to pass the subjoinel bill as the surest and speediest way of doing the work. We trust they will not be disappointed ; and we can assure our friends at Columbus that in giving their assent to it they will do muoli to increase the wealth and prosperity of Cincinnati and the State of Ohio. THE SOUTHERN RAILROAD. [From tho Eveuiug Chronicle, Nov. 20, 18S8.] The importance of a Southern railroad, which the Chronicle has often urged upon our people, is at last beginning to be re- alized. Its friends, having almost despaired of getting individu- als or our railroad corporatio'is to take hold of and construct it, are now making efforts to enable the city to take the matter in hand. Wo hope they will succeed. It will be an astonishment to some of our slow-going people to see tlie city of Cincinnati undertaking the job of building an extensive line of railroad. Were there any other practicable way of accomplishing our pur- pose, we should prefer that it bo adopted ; but there seems to be none. The framers of our Constitution, impressed with the idea that wisdom and prudence would die with them, made an effort to legislate for all time to come, and to prohibit future interfer- ence with their wondrous works. Yet, as a body, they stood very little higher than any Legislature that has convened under the Constitution they framed. A part of their wise work was to provide that no city should over loan its credit or subscribe to the stock of any corporation whatever, or to raise money in aid thereof By reason of this provision of the Constitution, the progress of Cincinnati has been hindered, and its rapid growth, both in population and wealth, has been prevented. While, how- ever, we may not subscribe stock, loan our credit or raise money for the benefit of any corporation, there is nothing to prevent CINCINNATI SOUTHERN RAILWAY. 15 the city in its corporate capacity from prosecuting tlie work usually done by corporations — building water works, gas works, highways or railways, either in or out of the corporate limits, provided, always, that the Legislature grant the authority. This, at least, is the opinion of some of our best lawyers. Acting on this opinion, Alexander Ferguson, Esq., at the in- stance of friends of the Southern enterprise, has drawn up a bill to be presented to the present Legislature, with the hope that they will take favorable action on it. With very slight changes we hope the bill will become a law. The bill is very carefully drawn, and should it become a law, we shall expect the result to be very advantageous to our city, and the wise legislator is well aware that the interests of Cincin- nati are identical with the interests of the State. HOW CINCINNATI MAY BUILD THE SOUTHERN RAILROAD. [From the Cincinnati Gazette, November CO, ISOS.] Cincinnati needs a railroad directly South, to connect with the extensive system of railroads in the Gulf States, in order to se- cure her future progress. This is the great want of our people. That accomplished, there would be general confidence that the growth of our city would continuu to bo commensurate to the growth of the wbole country. Without that, this confidence will be lacking. And the lack of confidence in the future is in itself a blight upon its increase. The matter has been agitated for a quarter of a century, and at this time, agitation is the only re- sult. The project seems as far from abeomplishmcnt as ever. There are strong elements to co-operate and aid, but there is no more promise now of the capital foundation and organization that can grasp these auxiliaries and combine them in the object than there was when the project was first started. It is evident that the citizens of Cincinnati must build the road, or it will not be built. But when subscriptions of private capi- tal are talked of, it is found that the property holders, who would be most directly benefited by the increased prosperity of the city, ] 6 CINCINNATI SOUTHERN RAILWAY. are inert, and inclined to leave the support of the undertaking to business capital. This creates dissatisfaction. This situation has caused a general regret that the Constitution forbids the city from aiding the construction of the road by its subscription to the stock, or by the loan of its credit ; for in such a way the burdens of the aid given by the city would be equitably distributed ac- cording to the benefits received. And whatever objections per- sons may have in the abstract to the undertaking of works of in- ternal improvement by government, State or municipal, are apt to disappear in the presence of an obvious necessity or great ad- vantage to the general welfare. The general expression of regret that the city is thus restricted in a matter which is regarded as essential to her future progress, and of a desire that some way may be provided by which she can furnish the requisite aid, has led to a careful examination of the provisions of the Constitution, to see how far the city is limited, and if the limitation does disable her from making this under- taking. The only provision of the Constitution that contains any prohibition affecting this matter is the following : " 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 associa- tion, whatever ; or to raise money for, or loan its credit to, or in aid of, any such company, corporation, or association." The entire compass of this limitation is, that the city shall not become a partner in any joint stock company, nor loan its credit to any such association. It does not forbid the grant of au- thority to the city to undertake works of public improvement on its own account, with its own money, and to raise the means by loan or taxes for that object. Thus the city might not take stock in a water-works, or gas, or fire-engine company, nor lend its money or credit to them, but it can do these works in its own name. Nor is it limited to the city boundaries in these works. If it had to go beyond them, or beyond the State, to find a source of water, it could do so. The Legislature can not author- ize the city to take stock in a railroad company, nor to lend its money or credit to such a company, but there is nothing in the CINCINNATI SOUTHERN KAILWAY. 17 Constitution wliicli prohibits the grant of power to the city to build the railroad, and to borrow money for that purpose, and to levy a tax to sustain the credit which it thus extends. The only question, therefore, that remains is, whether this road, directly south from Cincinnati, is so essential to the pre- servation of the prosperity of Cincinnati, and to the continuance of her pace of growth, as to demand that the city shall take the work upon her shoulders, and carry it through by her own capi- tal, and by a credit founded on her vast property, in addition to the work itself. She can raise the money on such security on lower terms than any railroad company. She can have the "rant made with conditions that shall provide for the selection of trustees by our highest court to manage the undertaking. She can include and combine all the aid that has been tendered along the line of the road. Her ample resources of credit will enable her to complete the undertaking without undergoing the usual sacrifice in financiering. When completed, she can either sell the road, or lease it, subject to conditions that will preserve her interest. As it would be politic that she should always have a certain control of transportation rates, in order to protect her own trade, it is probable that the leasing system will be safest. But the main question is to build the road. That being done the city will be master of the situation. We present in another part of this paper the draft of .a bill to bo presented to the Gen- eral Assembly to grant the neces.«ary authority to the city to build the Southern Railroad. It is the work of Alexander Fer- guson, and has been prepared with much care, and after a careful and exhaustive search of legal authorities, and is believed to be legally impregnable. The bill is drawn in the general style which is made necessary by the Constitution; but as there is no other city in Ohio having 150,000 inhabitants, and is not likely to be soon, the authority is available only to Cincinnati. The first section contains a grant of power to build such a railroad, to create a board of trustees to manage the construction, who may borrow the money, and pledge the work and faith of the city. And it furthermore makes it the duty of the Council to levy a tax to provide for the interest, and a sinking fund for the princi- 18 CINCINNATI SOUTUEKN HAILWAY. pal. With those provisions the securities will be better than those of any National or State, or than any simple railroad bond, and these bonds will command a price, or will be negotiable at a lower rate of interest, accordingly. The amount of capital authorized is intended to be sufficient for the undertaking, while of course, the amount raised will be no more than is required. The second section provides for the appointment of trustees for said railroad by the Superior Court. The third, fourth and fifth sections contain the general grants of authority to these trustees to do the things necessary to construct this work. The sixth section provides a summary way of impeaching a trustee for unfaithfulness. The seventh section gives the power to appropriate land necessary to piers for bridges. Section eight gives authority, which may be convenient, to take in any road already built on any part of the line, if the trustees shall deem it desirable to acquire the title to such road. The ninth section provides power to lease the road as it is completed. Section ten authorizes the City Council to aid the trustees. And the eleventh and last section provides that the act shall take effect upon its passage. Here is a plan by which the city may build the road, if the citizens shall demand it with unanimity. It is a large under- taking, but it will be an investment which will be represented by a railroad property worth the money, and which should pay a fair interest on the capital, and eventually liquidate the debt. In reply to the ready, and the only great objection, namely, that such an undertaking by municipal corporations is apt to be badly managed, it may be said that the citizens themselves can always exercise an influence on the management, and that if they properly look to their own interests, this undertaking will not bo badly managed. The plan is before the public. There is no legal impediment. The legislative authority can be had, if our citizens ask it. It depends on them whether this railroad shall be built or not. OINCIN'XATI SOUTIIEKN T.AILWAY. 19 CAN CINciNNATI BUILD A RAILROAD. [From the Cincinnati Coinraerciiil, Nov. 23, 18G8.] Since the new Constitution of Ohio was placed in the hands of its friends, the impression has heen prevalent that the city of Cincinnati could not employ her credit in constructing railroads. The general opinion that this disability existed, and the asqui- esonce in it, has, perhaps, kept the city debt within cump.iratively reasonable limits; but it is questionable whether it has not pre- vented the substantial encouragement of enterprises that, consum- mated, would have made the additional indebtedness an excellent investment. The conceded inability of the city to do anything for itself has been especially felt in regard to the proposed Southern rail- road. A few years ago, some of our business men started a sub- scription to aid in the work of connecting Cincinnati and Chat- tanooga directly by rail. Several of our old merchants and capi- talists subscribed largely, and labored with assiduity to make this movement a success. They failed, because many who would have profited largely by success, refused to contribute, expecting to take advantage of the liberality of their neighbors. Out of these circumstances, and their great notoriety, grew a public opinion that we believe to bo intelligent and resolute, to the ef- fect that the thing to do was to employ the credit of the city and mahe every lax-payer a stockholder in the Southern railroad. Much discussion has taken place as to the most speedy and ef- fective method of executing the public will. If there were no constitutional diffioulties in the way, the credit of the city would certainly soon be loaned to a Southern Railroad Company. It has occurred to one of I he most capable members of the legal profession in our city, and we will take the liberty of naming Mr. E. A. Ferguson, that there is no constitu- tional prohibition of cities of the first-class in the State of Ohio, (which is the legislative formula for the city of Cincinnati,) building and owning a railroad. And Mr. Ferguson has carefully prepared a bill to authorize the city of Cincinnati to construct and possess and operate a railroad. This document we print in another column, and need hardly to ask for it the most consider- 20 CINCINNATI SOUTHERN BAILWAY. ate attention of the tax-payers and business men of this commu- nity, for its very p;reat icaportance and general interest will bo universally recognized. Whether Mr. Ferguson has perfectly succeeded in the object which we have endeavored to make dis- tinct, is a question for lawyers and capitalists, legislators and trustees of the city to determine, after due debate. Wo may ob- serve that there is a public consciousness that something must be done by Cincinnati for Cincinnati; and if there is a better plan or a better bill than Mr. Ferguson's, there is a demand for it. Objections may be multiplied, but before pronouncing judg- ment against this new "Ferguson bill," we would desire to see ■ in the place that it is prepared to fill a better thing. Amend- ments may be sui;gested. Many of possible value will occur to the careful reader. Perhaps it would be worth while to submit the proposition to a popular vote in the city, or to insist upon a two-thirds majority in Council, but these are details and do not touch the essential. One thing is certain, that not only must something be done by Cincinnati for herself, but that the thing done must be something of wider scope and more vital signifi- cance than mere local improvements. We may exhaust ourselves in placing parks on every hill, and cutting a superb avenue for each one of our city Councilmen, that the names of the members of olir municipal Congress may bo commended to posterity, and yet we will not bring business to the city. It is not in the deco- ration of the. city that public expenditure is demanded, but in providing material to make more city. Venice did not peri.sli for lack of palaces. She ceased to command the trade of the Indies. Rome was not saved by her water-works, and London has not grown great because she has parka. The trade that is due Cin- cinnati has been permitted to drift away from her. She has not, as she should have, the trade of the South or the travel of the North. The continental current of travel streains alons: the lake shore and through the center of the State. The advantage of her commanding location on the Ohio, and her central position in the Union, are in part and for a time lost to her. That which she needs is not above all things, to put on just now the fine rai- ment of parks and avenues, and to adorn herself and dot the sur- rounding country with magnificent piles that will perpetually advertise the superb conceptions of gifted architects. We do CINCINNATI SOnTHERN RAILWAY. 21 not absolutely need feudal castles, with cloud-capped towers for the sick, and gorgeous temples for the poor, and work -houses modeled after the Tuileries ; but we do require more vital blood in our arteries, a surer grasp upon the broad and fertile and popu- lous region that is naturally our territory — that was ours before we were exceeded in energy and distanced in enterprise. The ease of our early opulence mis-taught us. It is time that we should emerge from the dimness of our medievial epoch, and put off the philosophy of indifference that has been cultivated to our cost. We must have parks and avenues and great public edi- fices, and bigger things generally, to make the city more at- tractive ; but first we need to secure for ourselves the imperial dominion that is our rightful heritage, and get the food whereby we are to grow. CINCINNATI RAILROAD CONNECTIONS. [[From the Cincinnati Daily Times of Not. 28, 1868.] We have constantly advocated the early construction of a line of railway to connect the system of Northern roads concentrat- ing in Cincinnati with the Southern roads, at whatever point they more especially concentrate. We have expressed our opinion this point is to be found at Nashville, but wherever it may be, and however the road may be constructed with the greatest rapidity — there is the point, and that the means we advocate. We continued to impress this important subject on the minds of our readers by repeated editorials and by the publication of numerous contribu- tions from correspondents, until it seemed we might be considered^ monomaniac, and our readers might require a change of subject, like the man who did not desire always to be fed on salmon or partridge ; more especially as we continued to advocate this sub- ject at a time every one seemed to have lost all realization of our condition of comparative isolation from the future Southern trade or to have) made up their minds that Louisville would do what our own citizens did not seem to have energy enough to achieve. We are much pleased to find that the seed we hopefully planted. 3 22 CINCINNATI SOUTHERN RAILWAY. appears at last to have germinated, for now and again we meet with some one who looks forward with anxiety to the time we may have a direct Southern railway. The proposed bill, of which we have published a synopsis, enabling this city to construct a Southern road, seems to aiFord a means of relief, and we do not consider it advisable, in this connection to discuss the merits of the details, but to impress on our readers the absolute necessity that this course should be adopted, since it ia the only one by which an immediate advance can be made/ And as we are de- prived of authority to lend our credit to any corporation that might undertake the construction of a Southern railway ; and as our real estate owners, merchants and manufacturers will not come forward with individual subscriptions in a sufficient amount then, we say, let the city herself construct this road which is essential to her existence, and without which she must sink into decay. We are aware many persons think city gas works, water works, and all other public improvements can be more economioalKy managed by individuals or by stock companies than by muni- cipal or State authority, and we see no reason to doubt this is the case, but when it comes to be a matter of life or death, where our future prosperity or decay are in such scales, then extreme cases need extreme remedies ; and as a skillful physician mi"-ht prescribe croton oil to a patient, who without its use seemed to be on the very point of death, so we may let our city authori- ties build and operate a Southern railway for the .benefit of our citizens. There has been much money spent in our city lately in sewer- age, hospitals, Nicolson pavements, city parks, etc., etc.; and although, if our growth continues uninterrupted, and prosperity attends our efforts, there has not been sufficient expenditure in these respects, yet we would prefer every dollar had b,een invested in building a Southern railway, and the means thereby provided of increasing the necessity of these improvements, and of pay- ing for their construction. With the greatest exertions and most rapid work it is not probable a direct connection with the Southern railroads, free from Louisville influences, can be obtained sooner than' two years— and this is equal to an age in the race we have to run. CISCINNATI SODTHEKN RAILWAY. 23 See the incalculable benefits resulting to Louisville because sbe has at this moment a direct connection with every point of im- portance in the South, and has under progress a railroad bridge over the Ohio River. Already powerful corporations are being established and consolidations being eiFected from the East and North, looking to Louisville as the point to tap the Southern trade. See what a harvest must be reaped 'by her citizens when Louisville becomes the distributing point for Northern manufac- tures to Southern consumers — and see what a period of active trade we have lost by not availing ourselves of the advantages that seemed forced upon us, but which we would not open our arms and grasp. Let us look at the period of dull business and commercial losses that must be our lot unless we arise from our lethargy and do with our might what should have been done years ago. We have no idea that we can, by any possibility, enjoy the same prosperity for the next few years that we might, had we, at this moment, in full operation, a direct line of Southern road ; but we may prevent this loss being permanent, and provide for the maintenance of that position we are entitled to among the cities of the West, if we go forward vigorously in the scheme now presented to us, and looking neither to the right hand nor to the left, give our undivided assistance to those who may be now exerting tlemselves for our prosperity. We hope every one, of every class, will unite, that there may be no dissatisfaction because any one pet scheme has not been adopted, but that all individual interests will be surrendered, and all will push forward and promote the present cause. Let every man vote for the city to build a grand main trunk Southern Rail- road as quickly as possible. THE SOUTHERiSr RAILROAD— THE FERGUSON BILL. [From, the Cincinnati Euquirer, April 9, '1869.] The prospect of any amendment to the State Oonstitution of Ohio, which will give the city of Cincinnati any chance of afford- 24 OINCIHNATI SOnTHBRN BAILWAT. ing aid in its corporate capacity to the Knoxville Southern Eail- road appears faint indeed. Our hopes of relief must come from another quarter. The question arises, does the constitution really interpose an insurmountable obstacle to that end. For the sake of avoiding all doubt on the subject, we have chosen thus far to recognize the application of the question, but it is not really found in the letter of the fundamental law. The following is the sec- tion of the constitution which it has been proposed to amend. It is the only section which has the least bearing or effect upon that which we propose to change. It 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 associa- tion whatever, or to raise money for or loan its credit to or in aid of any such company, corporation or association." The real effect cf the above is plainly seen in its very terms. The constitution prohibits a city, town or township from lending its aid and becoming a partner of any stock company or associa- tion. But it does not prohibit the city or township from building water-works, gas-works or railroads at its own single expense, pro- vided it has the consent of the Legislature. This construction of the constitution has been acted upon ever since it was adopted. A large moiety of judicial decisions could be cited, if necessary, to sustain it. We trust our Democratic friends in the Legislature will take this view of the matter. There are many reasons why they should do so. It is justified, in the first place, by a strict construction of the constitution, which is aUvays a primary ele- ment of the Democratic faith. Secondly, it is found in the neces- sities and condition of the people in this part of the State, which rightly regard the completion of the railroad as an indispensa- ble element of prosperity in the future, which element we can not have without corporate aid. Great party as well as public inte- rests require it. CINCINNATI SOUTHERN RAILWAY. 25 A SOUTHERN RAILROAD- [From the Cincinnafi Enquirer of April 14, 1869.] The construction of the Southern B-ailroad is indispensable to the prosperity of Cincinnati. With the finishing of say one hun- dred and twenty miles from Danville, Kentucky, to Knoxville, Tennessee, supplying the gap existing between the West and the South, we should have several thousand miles of railroad connect- ing with this city that are now far removed from it. The dis- tance is not greater than from Columbus to Cincinnati. That traversed by the iron horse, and Mobile, Charleston, Richmond, Raleigh, Savannah affd New Orleans are all placed within easy railroad access of this city. We then drain the mineral wealth of East Tennessee, North Georgia, Alabama and North Carolina. In addition we share in the immense trade of the richest of the Southern States, in their agricultural products. But it is useless to argue this question. It is already suffi- ciently appreciated. Everybody in Oincinnatiis for the Southern Railroad. Every body thinks that it ought to havo been built many years since. It is unnecessary to ta'.k, however, of its com- pletion by the voluntary subscriptions of rich citizens, as that has been tried for many years, and has always humiliatingly failed. Small as is the amount requisite to its completion, it appears far larger than our citizens are willing to launch out. They are either too much engrossed ia the almighty dollar for the present, or think too little of the advantages for the future. Neither is it wise or judicious to look for its building from the great trunk railroad lines of the East, Those lines are leasing roads, for their ambitious purposes, that are already constructed, but they are not building new lines, which, in fact, require means beyond their resources. The only way the road can be certainly constructed is for Her- cules to put his own shoulders to the wheel — for the city to lend its credit to its construction. It has already lent its credit for purposes of far inferior importance. Our State Constitution of 1851, which seems apparently de- fligned to check the growth of the city of Cincinnati, appears to forbid this, but it is only in seeming. The city has as much 26 CINCINNATI SOUTHERN RAILWAY. right, under it, to build the road, provided it does it all itself, as it has to own water works, gas works, or a park, or any other ob- ject of internal improvement. Time is important in the construction of this most essential ar- tery of trade. Every day that it is left unfinished is a great in- jury to our citizens. We have already talked about it for thirty- seven years. In that period the city of Chicago has been built from a hamlet, containing but a few houses, to a city which rivals, if it does not exceed, that of Cincinnati in the extent of its popula- tion. In connection with Chicago thousands of miles of railroads have been built leading to newly-created States and Territories. Our sluggishness has been well and appropriately punished in the loss of trade, while Chicago has been rewarded by its ability and enterprise. The time has come when this Southern Railroad — to which our fathers attached so much importance, which they foolishly neg- lected to build — is to us indispensable. It is the first step re- quisite to take Cincinnati out of her shell, and send her bounding on a new course of progress and improvement. The year that. is before us ought to witness heavy work upon the road. They want a law like the Ferguson Bill, so-called, which will enable them to be at work on this road during the coming summer and fall, pressing it on toward a completion. There ought to be no opposition in the Legislature to it. It is a local matter, which in no event can affect any others than those here who are pecuniari- ly liable for it. If we of Cincinnati can afford, or think we can afford, to construct a railroad for the benefit of our trade — we agreeing to pay for it out of our own funds exclusively — no other section or people should object to it. They can not do it without violating the Democratic principle of local self-government, and being unjust to their brethren in Hamilton County. CINCINNATI SOHTHERK RAILWAY. 27 THE SOUTHERN RAILROAD. [?rom the CiDcinnati Gazette of April 20, 1869.] The Committee of the Chamber of Commerce on the Southern Kailroad, in consultation with the Committee appointed by the City Council, and the Hamilton County delegation in the Gen- eral Assembly, have come to the conclusion to recommend and support the plan advised by Mr. Ferguson, and embodied by him in a bill for the Legislature, by which the city shall build the road, being duly authorized to borrow money and to do all that is necessary to construct and operate a railroad. With this backing the plan will be laid before the General Assembly and its immediate passage urged. Last fall we laid this plan before our readers. A few words will describe its general features. The theory of lawful authority is founded upon the fact that although the Constitution prevents the General Assembly from granting power to the city to become a partner in, or to raise money in aid of, any railroad company, it does not prevent that body from authorizing the city to raise money to build a railroad under its own sole ownership. It as- sumes that such authority is of the same nature as that granted to the city to build water works, in which the work is not limited by the State boundaries, but may be carried wherever it were found necessary to go for a water course. The bill provides for a Board of Trustees, to be appointed by our Courts, to manage the finances and construction of the work. The plan supposes that citizens, who will command the confidence of the community, shall be appointed Trustees of this work. It contemplates that they shall procure all the aid by subscriptions along the line of the rpad that have been offered, or that may now be found available. It provides that these trustees shall have the power to do all that the officers of any railroad company may do in laying out and constructing a railroad, and that the bonds which they issue shall pledge the faith of the city as well as the property of the road. If any company can afford to build this road, the city of Cin- cinnati can. If it requires the sinking of any capital for the pub- lic benefit, this city and the inhabitants on the route are the par- ties that justly ought to sink it, for they will have its benefits' 28 CINCINNATI SOUTHERN SAILWAT. If, as is generally believed, it will be a profitable road, paying fair dividends on its actual cost, the city can easily dispose of the whole property, if that shall be thought the wisest policy, when the benefits shall have been secured. And with the credit of the road placed at the start on so broad a foundation, it will escape that ruinous sacrifice in financiering which, upon the average, has doubled the actual cost of railroads. The plan contemplates bringing the road across the river into a depot in this city, where it shall have connections with all the roads running to this place. After due deliberation, the conclu- sion has been reached that all other modes of raising sufiicient means in this city to cause the building of the road are impracti- cable, and that this is the only way in which it will be done If our citizens have the faith which they profess in this line, that it is the best route for a railroad now unoccupied, and that it would be a paying property, besides adding vastly to , the sub- stantial 'position of this city, the magnitude of the work need not at all alarm them. If private capital might safely venture in it, the city of Cincinnati need not be frightened at the amount of the investment. [From the Cincinnati Commercial of April 20th, 1869.] The Legislature will confer a positive fortune upon Cincinnati if it will act upon the Ferguson Railroad Bill before proceeding to consider the bill introduced in the House by Mr. Kennett to authorize the issue of bonds to the amount of one million dollars for Deer Creek improvement. Our great need is a railroad con- necting the city with the Southern system of railroads. The con- viction is deepening that such a road is essential to our prosperity, and must be had before we can expect that development which is to enable Cincinnati to hold the eminent rank she has had among the great cities of the West. Perhaps we shall feel rich enough, after entering upon this essential enterprise, to invest a million in Deer Creek ; but the best assurance we can have of the ability to do it will be in the increase of industry and commerce which will follow the opening of a road that will put us in direct com- munication with a territory rich in raw products and anxious to CINCINNATI SOUTHERN RAILWAY. 29 exchange them for those of the foundery and the shop. Let us have the Railroad Bill first. THE BALL A-ROLLING ON. [From the Cincinnati Times, April 20tli, 1669.] The people are gratified with the energetic measures adopted by the commercial bodies of this city for securing the privilege of building a Southern railway. The committee appointed to take the matter in hand and visit Columbus for the edification of the Legislature on this subject, has adopted Ferguson's bill as the basis of action. They thus have some foundation to stand upon, and at Columbus will not be compelled to' beat the bush for uncertain game. That bill provides that cities of the first class, containing 150,000 people, may loan their credit to build a rail- way under authority of the Common Council; for the appoint- ment by the Superior Court, or Court of Common Pleas, of five trustees to provide for the expenditure of the fund in construct- ing a road and telegraph along its route ; for letting the contract and taking ample security; for the removal of either of the trustees on petition of the City Solicitor ; for the purchase of any road along the route already built, and making it a portion of the line : and for leasing portions of the road that may be built, and finally the whole line, &e., &c. This seems, as we have heretofore said, to suit the case, and the committee has, doubtless, been discreet in adopting it as the basis of their argument to the Legislature. Of course, there is no reason for any delay or hesitation on the part of that body. It is our own business, the interests of the State will in no manner be compromised by giving Cincinnati what she asks. 30 CINCINNATI SOUTHERN RAILWAY. SOUTHERN RAILROAD— THE FERGUSON BILL. [From the Railroad Eeoora, April 22, ISOD.] We had hoped that long ere this we fhould have been able to report the Southern Railroad " in process of construction ; " but as " hope fails, the heart is made sick ! " The effort to secure the construction of the road by the aid of individual donations, is, on the part of those who have been managing it, confessedly a '•failure." What those efforts have been, or whether well directed or properly made, we do not propose now to discuss. Three months ago we had reason to suppose that private enter- prise would succeed, and that combinations then forming would secure its construction. Although we desire it understood that we ever have been, and are still in favor of private enterprise, " on general principles," there is such a studied effort to become perfect in " how not to do it," because all beneficiaries can not be made to contribute alike — the millionaire and the hod-carrier — it is evident, arguing from the past, that it never will be done in that way, or will at least require the life-time of two or three more generations. THE ONE MILLION BONUS PLAN Of Judge Dickson, has been also fully canvassed, as to its prac- ticability, and found to come short of accomplishing the desired result. The Constitutionality of this "Plan" rests on the fact that the money is to be given to an individual, instead of a "joint stock company, corporation or association." This, at best, is but " whipping the devil around the stump," and is clearly open to the palpable objection that but few indi- viduals have the financial ability, unless they are the mere tool of a "joint stock company, corporation or association." to carry it to completion, and to give the city what is really wanted, not only the road made, but security that it will be managed in the interest of Cincinnati, instead of some gigantic monopoly, whose whole interest is in carrying all trade and trafBc beyond us to other markets. CraCIHNATI SOUTHERN RAILWAY. 31 CAN THE CITY ArFORD TO BUILD THE EOAD ? Of the constitutional right of the city to build the road, there can be no more question than of its right to build sewers, pave streets, or construct avenues. The only question remaining is that of policy — profit and loss. To decide this question dispas- sionately, it is necessary first to inquire what is the risk to be run — next will the advantages to be attained warrant it. The Ferguson bill provides for the appointment of Trustees by the Superior Court, who are clearly to hold their positions " during good behavior," or a faithful administration of the trust reposed in them. They would be the Trustees alike of the bondholders and the city; and, hence, would not, and should not be subject to change or removal through political influence. The trust can not, therefore, be construed into a " political machine," and whatever political influence the trust might exert would only be "during construction," and then only in a district beyond the jurisdiction of the appointing power , Another question of risk is that of unfriendly legislation by other States, and the consequent injury to the property and dete- rioration of the value of the securities. This is not as serious a difficulty as at first appears. First, the work can, and will, only be constructed under proper charters from those States, (con- tracts, with vested rights) and as the parties in interest belong to diSerent States, questions that may arise will have all to be adju- dicated in the United States Courts, beyond the influence of State prejudice or the corruption of local influences. Next is the amount at risk. This depends on the length of road to be constructed. At what point it is determined to begin and where to end. The whole sum of cost is not the sum at risk ; because the road must be worth something when done. It should be further taken into consideration that the road can be more cheaply made on the Ferguson plan than on any other, because the securities can he made as " good as gold," and the whole work done on the "cash principle." Thus saving in commissions and dis- counts almost as much as the entire amount proposed to be given to "an individual " as a bonus. In no scheme, pn the bonus plan of construction, is it proposed that the bonus should be more than one-eighth the entire cost. Hence, we argue, as "an individual " 32 CINCINNATI SOUTHERN EAILWAY. can not afford to take perilous risks, that the sum at risk is not more than " one-eighth the cost of construction ; " or, in other words, that the road when made will be fully worth seven-eighths of its cost ; on this it will pay. A very small addition to the tax duplicate would provide a sufficient fund to meet all deficiencies that might arise out of the "risk on one eighth the cost,'' less the savings on commissions and discounts ; even that risk and tax would soon be extinguished after the completion of the road. CAN WE AFFORD IT? We believe there is but one sentiment in the whole community on this point. That an increase of business would be the result, everybody believes ; with increase of business comes enlarged profits, and a more rapid growth of resources, wealth and ability to bear taxation. It matters not how vast is our material wealth, if it is non-productive. It would ruin Rothschild to own our pub- lic domain, if he had to pay taxes on its vast and imaginary worth ; but let it beicut up into farms, and tenanted with all the appliances of civilization and a dense population, and the case would be different. It is just so with Cincinnati. Give us busi- ness, and no one will grumble. Curtail our trade, and all live men will be constrained to follow the illustrious example of the " rats who left the sinking ship." THE SOUTHERN RAILROAD A FIXED FACT. [From the Cincinnati Enquirer, Jan. 28, ]872.] The Cincinnati Southern Railroad bill has passed the Kentucky Legislature. Charters for it have now been granted by the States of Ohio, Kentucky and Tennessee, which are interested in it. It has been a long struggle, the original bill having been adopted by the Legislature of Ohio in the early part of 1869. The opposi- tion to it — not so much against the object to be accomplished as the manner in which it was sought to be effected — has been bitter and intense. Besides the fight that was made on the bill in the Legislatures, its legality and constitutionality were questioned. That has been judicially settled by the decisions affirming it, both CINCINNATI SOUTHERN RAILWAY. 33 in the Superior Court of Cincinnati and in the Supreme Court of Ohio. Thus, at last, after a contest of three years, the Trustees under the bill have a plain and clear field before them. They can now proceed with the work, unhampered by any legal difficulty, and with the full consent of the States, backed up by the wealth and resources of this city. We presume that opposition will henceforth cease ; that the construction of the road in the form provided under what is known as the Ten-million Bill may be regarded as a settled and irreversible fact. It is useless now to talk of other schemes, which are -problematical in their character, which may or may not, if we had wished, been adopted. The great necessity of Cincinnati is a Southern railroad — nothing can be more important to its future- interests. We have sufiered greatly for its non-completion in years that are past and gone, and now should put our shoulders to the wheel, when it is certain that under the law the way for its building is open and speedy, and with means that can not fail. With this road in successful opera- tion, Cincinnati will start upon a new career of prosperity. Let it be now put through at the earliest period. THE BILL OF FALLACIES. [From the CiDcinnati Gazette, Feb. 10, 1872.] When a member of the Legislature introduces a bill on an im- portant public afiair of his constituents, he ought to be able to show that he represents them. What evidence has Mr. Fallia to show that in his bill to create a railroad syndicate, with a fund of three millions to give away, and to repeal the Southern Railroad charter, he represents any Cincinnati constituency or interest, or any public opinion ? "What has happened to disfranchise the citi- zens of Cincinnati, and to authorize Mr. Fallis to assume the office of guardian for incapables ? The citizens have expressed their will by deliberate action. The act of the General Assembly was passed in response to their nearly unanimous desire. It was sub- mitted in due legal form to the vote of the citizens, and was rati- fied by them with great unanimity. The measure thus accepted, committed the management of this business affair to a board cre- ated for that purpose. 34 ClfTOINNATI SOUTHERN RAILWAY. Now, what has happened to warrant Mr. Fallis in proposing to set all this aside? Who commissioned him? Has there been any expresion of the popular will ? Has there been even that easily procured thing — a petition for legislative relief to the citi- zens from their own acts ? It seems to us that it is necessary that Mr. Fallis should show some authority for his proposal to take an affair of the citizens out of their own hands, to save himself from the character of a conspirator against the rights of his own con- stituents. At the least, he mistakes his calling altogether if he fancies that in electing him one of the delegates from Hamilton county the citizens conferred on him plenary power over an affair in which they had acted with much greater deliberation, and which they had conferred on another agency. The character which Mr. Fallis would give to the citizens of Cincinnati is as false as his assumption of the authority to abol- ish their solemn acts is unfounded and impudent. He would rep- resent them to the people outside as insincere in all their course on this railroad measure, or as childishly incapable of knowing what they wanted, and as fickle in casting away the thing they long for as soon as they had attained it. He would disgrace the citizens before all the country with which they are desiring trade relations, and would make their public faith and their undertakings a by-word. A member of a legislative body who presents his constituents in such an ignominous character ought to be able to show some authority for thus representing them. Where is Mr. Fallis' authority? What has he got to show? We are aware of the ready argument that will be offered in reply, that the Sohiff bill to redistrict the city was also intro- duced without the support of any petitions. But this is right in the line of our reason against Mr. Fallis' assumption. The Schiff bill is for the discharge of the duty of the Grcneral As- sembly to secure to our citizens equal representation in the mu- nicipal government, which they are now deprived of. This is the duty of the Legislature at all times. Equal representation is a right which does not need petitions to call it into existence. It must be taken for granted that every citizen is in favor of equality of representation, and that if any one opposes it, the VBry fact of that opposition confesses an illegal object. On the other hand, the citizens have fully and deliberately acted on the CINCINNATI SOUTHERN RAILWAY. 35 Southern Railroad bill, and they have not committed it to Mr. Fallis. He is asking the General Assembly to deprive them of the control of this affair, and to set up a little scheme of his own. The bill which Mr. Fallis has presented is as flagrant a con- tempt for legal principles as his action is of the principles of rep- resentative government. He proposes that the City Council may declare a railroad necessary, and that then the Presidents of the two Boards and the Mayor shall dispense the three million fund and shall contract with an individual to build the road. In this care to restrict the contract to an individual, he recognizes that such a contract with a railroad company would be illegal under that provision of the Constitution which forbids the General As- sembly to authorize any municipality " to become a stockholder in any joint stock company, corporation, or association whatever, or to raise money, or to loan its credit to, or in aid of, any such company, corporation, or association." Mr. Fallis thinks to get around the prohibition as to a railroad company by restricting the dealings of this three million board to an individual. Will this circumvent the law? When the law ■has forbidden the city from entering into such business partner- ship with a company, can the city do it with an individual ? Will a lawver who has any reputation at stake, risk it on that point? But if we allow that law is so slippery as Mr. Fallis purposes to make it, we come to an inquiry: How is an individual going to build a railroad? How is he going to get the grant of eminent domain which is required to get the right of way ? What Legis- lature will grant this one-man power? Of course Mr. Fallis is not so simple as to suppose that an individual can get such a grant of power as would be required to build a railroad. But evidently he supposes that this individual can be a go-between for the company which will receive the gift and build the road. But Mr. Fallis is unable to keep up his method of evading the Constitution by having the right hand effect ignorance of what the left hand is doing ; for before he gets through, the railroad, in its real corporate shape, has to be brought in to enter into certain stipulations, and to give to the city a mortgage on the property of the company conditioning the return of the bonus in case the company shall not carry out its obligations. Now, if 36 CINCINNATI SOUTHERN RAILWAY. the legality of this bill depends on the city's dealing with this individual, and knowing no company in the relation, does not the point of legality fade away altogether when the company is brought in to contract with the city ? To be sure, Mr. Pallia does not mention a railroad company. He studiously avoids it by talking of the " road " as the thing that is to bind itself to do certain things, as for example: " Nor shall the bonus be paid * =i= * until the road has given to the city a first mortgage on it, conditioned for .the return to the city of the said bonus in the event that the road, in its operations, shall violate the pro- visions of said contract." This shows the strait to which Mr. Fallis is reduced in hiding the fact that there is a company to be contracted with. But the loose phraseology of contracting with a road, and of a road vio- lating its obligations, appropriate as it may seem to a young legis- lator for a law, will not get around a constitutional prohibition against lending the credit of the city to a railroad company. This shuffling clause brings in a railroad company to execute a mortgage to the city, conditioned upon the aid which the city has given it. It brings in a contract which recognizes that the thing done is just what the Constitution forbids when it declares that the General Assembly shall never authorize any city, etc., "to loan its credit to, or in aid of, any such company, corpora- tion, or association." But the absurd and shuffling illegality of this bill is not our main objection to it. If it were to be enacted, we should hope for the protection of the courts. It is a plan to corrupt the ward elections, and to make a three million plunder fund. The unjust apportionment of the city for representation would furnish a facility to the scheme. The fact that there are wards in this city where a character notorious for corruption is no impediment to an election, and where a great plunder fund would confer irre- sistible electioneering power on those who would dispense it most corruptly, would give most dangerous facilities. Citizens of a suspicious turn of mind may see in this scheme the wishes of a railroad monopoly which prefers to carry its points by manipu- lating Legislatures and other government agencies rather than to incur open competition. The fact that it is approved as a good CINCINNATI SOUTHERN RAILWAY. 37 thing if it were legal, by a city journal which has a microscopic vision for small jobs, is also suggestive in the same direction. There is nothing that such a board can do in negotiating for the building of the Southern Kailroad that the trustees can not accopaplish in a better manner by the authority conferred on them. The bill proposes to throw away all that has been accom- plished by them, and to begin with a new scheme and a new act of legislation, which is on its face so foolish as to appear insin- cere, and which, in its own awkward contortions confesses its un- constitutionality. It proposes also to throw away a grant in Tennessee which can not be repeated. Its only serious effect is to publish to those who are interested with this city in the Southern Railroad the imputation cnst by one of her representa- tives, that in this undertaking she was insincere, and that now, when she is likely to get the legal grant she has been asking for, she wants, to provide a shuffling way to back out of it. This is the character which Mr. Fallis represents But the citizens of Cincinnati have acted upon this matter with all deliberation, and have placed the affair in other hands; therefore, Mr. Fallis with his bill is acting wholly outside of his representative capacity. THE PROPOSED SOUTHERN RAILROAD. [From the Cincinnati Gazette. Feb. 19, 1872.] We have profound respect for the opinions of citizens on all subjects of public concern. It is not to be expected that people will be of one mind, and those who take the negative side, even if in the minority, have as good a right to be heard as those who take the affirmative; but the course of those who appear before the public on either side is liable to fair and open criticism; and we have a right, in certain contingencies, to scrutinize their mo . tives. While, therefore, we take care to hear and read all that-is said in opposition to the Southern Railroad scheme, and give due weight to the utterances of its opponents, we are bound to ques- tion the sincerity of their course, and to ask if there is not some- thing behind all this skirmishing that is not fairly presented by 4 38 CINCINNATI SOUTHERN RAILWAY. demonstrations at the front, and to inquire, if this bushwhacking does not mean the defeat of the Southern road, what it does mean ? That the proposed enterprise is an extraordinary one is very well understood, and that people should desire to have it carried out without involving the city in vast financial responsibilities is not surprising. There are not probably one hundred people in this city who would advocate the building of this road in the name and with means provided by the city corporation as a mat- ter of choice, and it is advocated only as a matter of necessity. It has been decided, however, that the Southern Kailroad is abso- lutely necessary to the commercial growth and prosperity of this city. This no one pretends to deny. That it will benefit Ken- tucky also we admit, and that it will put money into the pockets of the Southern people with whom we aim to form close connec- tions is not to be denied. We do not deny it. On the contrary, we are glad to contemplate the growth and prosperity of Ken- tucky and of the Southern .States as one of the certain results of the proposed road. The commercial interests of a people can not be divided by State lines. Those who would draw such lines do not understand the first principles of political economy. An em- bargo upon the commerce between this city and the South is a tax upon both. It is a burden that one can not bear without inflict- ing injury upon the other. By way of illustration, we may men- tion that we have before us a private letter from E. D. Mansfield, who is spending the winter at Aiken, S. C, in which he informs us that in consequence of inadequate transportation facilities be- tween that country and this, articles manufactured in Cincinnati sell at Aiken at double the price for which they are retailed in this city. To cheapen those articles would be a mutual advantage. To open that market and the whole South to our manufactures would benefit Cincinnati immensely, as it would also the consumers. The same is true of the products of the South which are sent to the States north of the Ohio in exchange. Direct and cheap railroad communication, therefore, would proportionately develop the resources of both sections. But we need not argue the importance of a direct railroad from Cincinnati to the Soutu. This question was decided thirty years CINCINNATI SOUTHERN RAILWAY. 39 ago, and it has been affirmed and reaffirmed every year since. A few years since it was proposed to raise by private subscription in this city the sum of one million dollars to be given as a bonus to any company that would build a Southern railroad. Many of our citizens labored hard on that subscription, and about half a mil- lion was obtained. That was not sufficient, and the plan was abandoned. The subscriptions were most unequally distributed, too, and were made by active business men chiefly. The real es- tate owners and bankers, worth their half millions and millions, subscribed nothing, or very little, and we would look in vain up and down that list for the names of gentlemen who are now so vigorously seeking to defeat the only practical scheme that has ever been presented to secure a Southern road. It is true these gentlemen tell us they favor a Southern road ; it is only the Ferguson plan they oppose. We suppose our read- ers have heard of the man who favored the Maine law, but op- posed its execution. The opponents of the Ferguson plan are in that predicament exactly. This plan is constitutional. No other constitutional plan has been proposed. Various schemes have been suggested, .which are embodied in the Pallisbill, the object of which is to place three million dollars in the hands of the City Council to be given away ; but the decision of the Supreme Court, which wo printed in full last week, disposed of that and all simi- lar projects in advance. No sensible man, therefore, would pro- pose any such scheme, and, even if it were practicable, it would be foolish to place a fund of three millions or any other large sum in the hands of the City Council, to be given away. Therefore when supplementary bills are proposed, we may be sure the ob- ject is to prevent the building of the Southern road, or manufac- ture a public opinion to force the Trustees to buy a road already built at such price as its owners may fix, and then give it away. This may be the best thing to do ; but the lime has not come to pronounce upcn it, and will not come until the Trustees shall have completed their surveys, and matured their plans and ascertained all that can be done. The effect of the present opposition, if not its object, is to destroy confidence in the Trustees, and by some sort of a shuffle place the city at the mercy of speculators. Yet these Trustees have done nothing to forfeit the confidence of the people. They were appointed to do a certain thing, and they 40 CINCINNATI SOUTHERN RAILWAY. have proceeded fhus far economically and wisely. No valid ob- jection can be made to any act of theirs. The Ferguson law was passed at the request of the people of Cincinnati ; it was ratified by an almost unanimous vote of the taxpayers; men were ap- pointed Trustees by the Superior Court who are among our larg- est taxpayers, and whose property is all in Cincinnati. They have procured a decision of the Supreme Court affirming the constitu- tionality of the law ; they have secured a charter from the State of Kentucky which was ungenerously granted, it is true, but which will, we may be sure, be more generously amended ; they have pushed the surveys with all reasonable energy, and will soon be ready to present their plans, and have spent, thus far, less than $80,000. Therefore, we say, they deserve the confidence of the people, and have proved themselves worthy of the great trust which, unsolicited, was placed in their hands by the people. It will be time enough to censure or vote a want of confidence when the Trustees shall have done something deserving such action ; and it will be time enough to discuss the plans, or to pro- pose plans, when the Trustees shall have come before the public, as they will do before striking a blow, with their plans and speci- fications. Thus far the opponents of the road have proceeded upon the theory that the Trustees would do a foolish thing ; that they would plunge the city recklessly into debt ; that they would undertake the building of the road without counting its cost; and that they would withhold their plans from the people and draw the latter in gradually by means of deceptive estimates. These Trustees are not speculators. They have been charged with a sacred trust, and they are the last men in Cincinnati to violate or abuse it. If those who insinuate distrust would name the man or the men of doubtful character, their course would be more com- mendable ; but this is not done, nor will it be done. Therefore we say the opposition is not in the interests of the city, and will not bear close investigation. The bugbear of taxation is also held up, and bankers are put upon the stand to depreciate our credit in advance. The object of all this is to frighten tax payers. We do not under estimate the consequences of a heavy debt; but we can not overestimate the importance of the Southern road ; nor can we be frightened by wild estimates as to cost. But even if we should CINCINNATI SOUTHERN RAILWAY. 41 sink ten millions in a Southern road — a contingency no one has any reason to apprehend — that would he nothing compared with the losses we are suffering for want of adequate railroad facilities southward. Intelligent pork merchants estimate the loss of that trade alone in this city, this season, by reason of their inability to reach the Southern market, at one million dollars. Now let the Freight Bureau supplement this by figuring up the losses to our merchants and manufacturers by reason of inability to ship ; by exorbitant freight charges, and by discriminations against this city, and it will be found that our indirect taxes — taxes that are crippling our industries and checking the growth of the city — • are ten times greater than would bo the interest on ten millions of dollars, even if the Trustees should be so foolish as to sink that amount. This is the way to look at the question. This is the way in which it was viewed when the Ferguson law was ratified by our citizens. Cincinnati is now too much at the mercy of railroad monopo- lies. Every day we are being discriminated against, and the life blood is being squeezed out of our industries. Our natural ad- vantages are altogether overbalanced by extortionate railroad management, and we are prevented from competing on fair terms in the great Southern markets, because we have not railroads enough and because we have no control over those we have. Stop your Eggleston avenues, your Gilbert avenues, your Mc- Lean avenues, your Columbia avenues, your City Halls, your parks, and your sewers, if you would reduce the taxes, and open up the markets of the South, from which we are now practically excluded, to our merchants and manufacturers. When this shall be done, there will be means to carry out city improvements, because we shall have a great and prosperous city to improve, and an overflowing and thrifty population to enjoy our avenues and parks. The time has come to strike a great blow for Cincinnati; the way is open for the first time in thirty years, and rather than miss this opportunity it would be better that those who oppose this enterprise should do as some one is said to have done lately — sell out and emigrate. What we want here now is not men of that 42 CINCINNATI SOCTHEEN RAILWAY. kind, but public spirit, and if we sball have public spirit, we will have a Southern Railroad that will not discriminate against our people; that will reach the Southern markets by the shortest line ; that will enable us to compete successfully with other cities ; and Cincinnati will enter upon a new era of prosperity that has had no equal in our history, and that will amaze the old fogies who threaten to run away if the people take hold of an idea above a picayune. Let us stand by the Southern Trustees, and guard their rear against the fire of railroad monopolists and timid tax payers. [From the Cincinnati ChrODicIe, Feb. lY, 1873.] Having led oif in the work of urging action to secure more direct Southern communication by rail, and persistently sustained this movement until now at last it has seemed on the verge of success, we are far from a feeling of gratification to see all that has been accomplished in danger of being lost, and the whole enterprise imperiled, by divided counsels. The city has once set- tled the method of doing this business, and now the way is clear. Is it wise to be in hot haste to let go the stone so laboriously rolled all but to the summit, just to see how magnificently it will go tearing its way to the bottom? Let all parties stop and con- sider. We have been nearly four years at work at this thing. It would be better to wait at least as many weeks before determin- ing to undo the whole job. CINCINHATI SOUTHERN RAILWAY. 43 THE RAILROAD SYSTEM OF THE SOUTH WHICH MAY BE CONNECTED WITH CINCINNATI. i;Froin the Railroad Bocord, Feb. 22, 1872.] Since there seems to be a probability that Cincinnati may re- alize at least a part of her scheme of Southern comneetion, per- haps the very first question is, what is the railroad system of the South? And with what lines may we be connected? In former articles I have endeavored to show what are the condition, pop- ulation, and resources of the Southern Atlantic States, and now I will trace out their railroads, and the points connected. First, let me make a remark on some things around us, viz : You will see in the papers that the Louisville and Na$hviUe Railroad have succeeded, or have a prospect of succeeding in a part of their grand scheme of cutting off from Cincinnati the advantages she expects from a " Southern road. ' This is extending a branch road through South-Eastern Kentucky to connect with the great Virginia and Tennessee line. For several months past the L. & N. E. R. Co. have had their bonds on the New York market for several millions of dollars. They have no doubt succeeded in getting th« money- The result is that it is now announced that company will complete the residue of the road (being 166 miles) to the connection with the Virginia road at Bristol. That line will then be a trunk line through the Virginia Valley to Norfolk. &Q far as this passes through the South-Eastern corner of Ken- tucky it will take a portion of trade that might have come to Cincinnati ; but in regard to Norfolk, Southern Virginia and North Carolina, it will have no effect ; for the Chesapeake and Ohio Railroad will bring the trade of all that country on a shorter and better line than it caa be carried to Louisville. I am afraid Cincinnati does not understand or appreciate perfectly the great future value of the Chesapeahe & Ohio to her interests. If, as seems probable, the Dayton and Hillsboro people succeed in get- ting their lin« through to the Chesapeake & Ohio, then Cincinnati ought to lose no time in getting a eonnection at Hillsboro, or some convenient point on the line. But of this I need not speak 44 CINCINNATI SOUTHERN RAILWAY. here. Let us look at the Southern roads ahead and made. Sup- posing a direct road to Chattanooga, as contemplated, then the Southern connections stand thus: 1. Of South Carolina : miles. Atlanta to Augusta (Georgia R. R.) 171 Augusta to Charleston (S. C. R. R.) 137 Augusta to Columbia ., Sfi Columbia to Greenville 143 Columbia to Branchville , 68 Charleston to Cheraw , 142 Columbia to Charlotte 107 Total. 753 These roads you perceive go to every important point in South Carolina, and this connection is made through Augusta on the Savannah Eiver. South Carolina, as I showed in a former ar- ticle, has hut 24,500 square miles — less than two-thirds of Ohio — and while this 750 miles seems comparatively small, it is never- theless quite sufficient to make a connection with every com- mercial point in the State. Outside of Charleston and Columhia there is not a town of 3,000 inhahitants in the State. I will not give the railroads of North Carolina because the shortest con- nection with them will be through the Chesapeake ds Ohio Rail- road. 2. Of Georgia. Taking Chattanooga as the central point we have first the " Georgia road " as in the last section : miles. Atlanta to Augusta , '..., \1\ Augusta to Savannah 132 Chattanooga to Atlanta 1,38 Atlanta to West Point 87 Atlanta to Richmond , 53 Atlanta to Maeon 103 Macon to Millen , HI Marion to Brunswick , 18G Marion to Eufaula, (Alabama) ,...., 144 Rome to Kingston 20 Total. 1,145 There is also a branch road to Columbia (Georgia) which should be included. Thus we see that 1,200 miles of road in CINCINNATI SOUTHERN RAILWAY. 45 Georgia connecting with Atlanta, connects the Chattanooga road with every principal point in Georgia. Perhaps it would be in- teresting and proper to this part of the subject to show what are the principal towns in Georgia and how these roads connect them. I confess I am a little disappointed, on looking into the census for 1870, to find these Southern towns so comparatively small Those of Georgia, however, are in the aggregate much more pop- ulous and important than these of South Carolina. The follow- ing are the principal towns of Georgia : Savannah 28,235 Atlanta 21,789 Aufrusia 15,389 Macon 10,810 Columbus 7,401 Rome , 2,748 Milledfreville 2,750 Brunswick , 2,348 It will be seen that Georgia, called in the South the " Empire State of the Soutb," has less than 100,000 people in all its towns ; for all, except the above are quite small. The railroads I have described pass through the whole of them, and thus a road cen- tering at Chattanooga will touch all of them. 3. Oj Florida. The part of Florida which is reached by railroads is comparatively small, but it is all that is worth while to reach. The following are the roads which reach the main points in Florida : miles. Fernandina to Cedar Keys 154 Jack.sonville to Tallahasse. 189 Lawton to Live Oak 48 Total 391 These roads lead from Savannah and Jacksonville to the prin- cipal parts of Florida. We now look at the Alabama connections, which in some re- spects are the most important. These are : 46 CISCINNATI SOUTHERN RAILWAY. miles, Chattanooga, Tuscaloosa, & Meridian 295 Selma, Rome, & Dalton 236 Selma & Suez 35 West Point & IMontgomery 138 Montgomery & Mobile 186 Total 886 The first of these roads will make the shortest and hest route from Cincinnati to New Orleans, and the last will make the best to Mobile. We have then in these four States (South Carolina, Georgia, Florida and Alabama) disregarding all merely local and minor roads, the following summary of main lines of road con- necting Cincinnati with all the principal cities and business places of the South : miles. In South Carolina 753 In Georgia 1,145 In Florida Sffl In Alabama 886 Total 3,175 In addition to this aggregate of main lines, there are at least 2,000 miles more of subsidiary liijes, so that, on condition that the Southern road (as I have already said) shall be managed to do the same work for the same money, that Northern roads do, Cincinnati may send her products and merchandise to every town in the South in the shortest time and the least cost. THE CINCINNATI SOUTHERN RAILROAD. ^From the Cincinnati Gazette, Feb. 26, 1872.] The importance of the Cincinnati Southern road to this city no one questions. Those who oppose the Ferguson plan still admit the necessity of the road, but while they claim it would be bad policy for the city to build it, because it would involve the loss of all the money put into it, other parties — railroad men, for exam- ple — might do the work profitably, for a bonus of three millions of dollars. " Bonus " is the objective point of the opponents of CINCINNATI SOUTHERN RAILWAY. 47 the Furguson plan, but the arguments to sustain these objections are not sound, and do not bear investigation. In the first place, they assume to know more about the cost of the road than the engineers who surveyed the several routes and estimated the cost of the work. Experts are called to enlighten the public who never built a railroad, and their figures are put against the fig- ures of experienced engineers, who have, as remarked, surveyed the dilferent routes. These experts say the road would cost any- where from twenty to forty millions, and every dollar put into it by the city of (Jincinnati would be sunk. This off-hand picture is well calculated to frighten the tax payers. But, then, in the same breath we are told if the city would buy the Kentucky Cen- tral for three millions and a half, and donate it to a company that would extend the road to Chattanooga, the thing would be a suc- cess ; biit how this would be is not explained. If it would cost twenty-five millions to build a road from Cincinnati to Chatta- nooga, and that would involve a clear loss of ten millions, upon what basis could a company build a road in consideration of a bonus of three and a half millions? The distance from Cincin- nati to Chattanooga over the proposed route is 330 miles. The length of the Kentucky Central is 112 miles. Now, if it cost three millions to build and equip 112 miles, what would it cost to huild without equipment, 330 miles? If a road one-third of the whole distance, which stops in a corn field, and has no through business, pays on a basis of three and a half millions, by what rule is a conclusion arrived that a road three times as long, with valuable through connections, would not pay? These are ques- tions that admit of intelligent answers, and we refer them to the opponents of the Ferguson plan, while we examine the cost of other roads that have been constructed. We are told the Short Line, between this city and Dayton, costs, without equipment, fifty thousand dollars per mile, and this is set down by experts as the minimum cost of the Southern road. The length of the pro- posed Southern road is 330 miles, which, multiplied by $50,000, gives $16,500,000 as the minimum cost. To this is added ten mil- lions for contingencies by reason of the rough country through which the Southern road is to pass, and by reason of the further fact that the road is not to be managed by railroad men. This is the way experts figure up their twenty-five or thirty millions 48 CINCINNATI SOUTHERSr RAILWAY. by wbioli it is expected tax payers will be frigbtened out of tbeir boots. Now, we have to inquire, does the Cincinnati and Dayton road cost $50,000 per mile without equipments? Assuming that it does, because the statement lias been repeatedly made without contradiction, it is about time those who pay for that job were looking into the matter. We have it from the highest authority that the Baltimore and Ohio Railroad Company have contracted for a road two hundred miles long, from a point near Sandusky to Chicago, for twenty-five thousand dollars per mile, ready for the rolling stock. It costs no more to build the road between this city and Dayton than it does the road from Sandusky to Chi- cago, unless it may be for the single item of right of way. It remains, therefore, for those who hold up the Cincinnati & Dayton line as a standard of cost to explain why it cost twice as much as the road the Baltimore & Ohio Company is building. This point need not be further discussed at present. Next we come to the point that the Kentucky Central and Louisville & Nashville roads, with equipments, did not cost $30,- 000 per mile, and they were both expensive roads to build and were built largely on the proceeds of bonds sold at a heavy dis- count. This is another feature the experts should attempt to explain if they would make headway in manufacturing a senti- ment here against the Ferguson plan, or in favor of those who are itching for a bonus of three to five million dollars. This brings us to another step in this line of inquiry. The Cumberland & Ohio Railrbal Company has recently let a con- tract for the construction of the first one hundred and twenty miles of its road, at tioenty-ihren thousand' dollars per mile, all ready for the rolling stock. This stretch of road runs through a pretty rough country, and may be taken as about the average of the Cincinnati Southern road. This we- know is ri>;ht in the region of facts and may not suit experts who talk to town meetings, but business men will prefer facts to fancy. Now, this is what has been done in the year 1872. Suppose, calculating from this reliable basis, the Southern road should cost, $23,000 per mile, its whole cost, exclusive of equipment, would be $8,250,000. Is it not reasonable, there- CINCINNATI SOUTHERN EAILWAY. 49 fore, for the people of Cincinnati to wait until the Trustees shall complete their surveys and obtain actual bids for the construction of the road before going off after those who talk wildly about its cost, and who have never seen, nor asked to see, a plan or an estimate of the proposed road, and before the road has even been located? So it seems to us. It is not wise, if we are to have this road — we will have it somehow — for our citizens to aid a movement against the Trustees that is calculated to take money out of the tax payers. It certainly is not wise to have a railroad ring fastened upon us, either directly or indirectly, that would charge for building the road double its actual cost, and then base a freight and passenger tariff upon its inflated value. We not only need a Southern railroad, but we need a road that will be operated in the interests of tlie people, and not in the interests of its officers. This brings us to introduce a letter from a well knowQ citizen of Chattanooga, wilh reference to what the Trustees may calcu- late upon in the way of donations. This speaks Of the feeling in Tennessee. The same feeling prevails in Kentucky, and it is en- tirely i-afe to say that the donations along the line of the road will be equivalent to a very liberal land grant.. St. Nicholas Hotel, New York, Feb. 15, 1872. Dear Sir: As there appears to be some apprehension in Cin- cinnati that the §10,000,000 appropriation will not be enough to complete the Cincinnati Southern Railroad, I write to call your attention to the fact that a considerable amount of assistance can be obtained along the line. For instance: The company which I represent will give your road the ground for right of way and depots in the city of Chattanooga, worth now §100,000. They also will give you right of way 15 miles in the Tennessee Valley, on the south side of the mountains, and grounds and brick for building shops for repairs at the foot of the mountain at Rock- wood, on the south side. I can safely assure you that the right of way through Tennessee will not cost one dollar, including "eminent domain." By proper management. the timber for ties, and probably the ties, can be secured without cost. The people along the line are ready to do anything in their power to assist you. They have nothing but lands and timber, with exhaust- less beds of iron and coal. Of these mineral lands they will give freely. Our Roane Iron Company can give you a train load of 50 CINCINNATI SOUTHERN RAILWAY. frei"-lit eacli way from Rockwood per day, and increase the amount rapidly after the road is completed. The Tennessee portion of the line is certainly a very cheap one to build, and the local traffic would be large, while by taking the Emery river route you secure the shortest possible line to Charleston and Chattanooga.- I am, very respectfully, J. T. Wilder. CINCINNATI SOUTHERN RAIL W^ AY. [From the Cincinnati Commercial, Dec. 27, 1871.] Major-General W. S. B.osecrans has written the following letter in reference to our proposed Southern Railway. Estimates of the coft of the Cincinnati road to Chattanoogo may be figured from the statements made in the communication — the entire line being three hundred and thirty-three miles by the shortest sur- vey, and three hundred and forty by the longest. The following is the letter : " BiTRNET House, ) Cincinnati, December 25, 1871. f " My Dear Friend — The Denver and Rio Grande Railway runs south from Denver, Colorado, at the Eastern foot of the Rocky Mountains, over rolling prairie and points of foot hills and in the first fifty miles ascends two thousand three hundred feet, and descends about seventeen or eighteen hundred feet again before it reaches Colorado Springs, seventy-six miles from Den- ver, to which distance it is now in operation. " As I rode on the pilot and engine most of the distance and noticed the character of the work and cutting, filling and bridg- ing, including rock cuttings, I must say to you that I can not think of any Ohio road that would average as much work per mile, on any section of seventy-six miles as this road. " From the general character of the topography, shown in the very complete surveys of your Cincinnati Southern road, I don't think that, excepting the large bridges, it need be much more expensive than the Denver and Rio Grande Railway so far. " As to the cost of this, I know that the seventy-six miles now in operation cost for construction and equipment less than one million of dollars. As to the amount of equipment, I can also state that it was sufficient to enable the road to earn $6,100 for the week ending December 7th instant. CINCINNATI SOUTHERN RAILWAY. 51 " When these facts are considered, and that freights on iron and rolling stock for your road would be at least one and a half per cent, per pound less than for that road, engineers can calcu- late what your line would likely average per mile. If that road cost less than $13,500 per mile under such circumstances, and thus equipped, what would yours cost, is a question which your surveyors and engineers can compute, remembering as they must that the three feet gauge is more pliable and can be made thus to save cutting, filling and tunneling unavoidable with the stand- ard gauge. " In view of all this, I think your line ought not to cost more than twice that of the Denver and Rio Grande Railroad, to build and equip it adequate for the first year's work. "Yours truly, W. S. ROSECRANS. "Hon. E. a. Ferguson, Cincinnati, Ohio." CmCINNATI SOUTHERN RAILWAY. Address to Citizens of Cincinnati by the Bxecutive Committee of the Hoard of 2'rade, Chamber of Commerce, and City Council, upon submission of the question to the vote of the , people, June, iS69. Fellow Citizens; — The Legislature of the State of Ohio having granted power to cities of the first class, having a population ex- ceeding one hundred and fifty thousand inhabitants, whenever it it shall be declared by resolution of the City Council of such city, as necessary to its welfare that a line of railroad should be constructed between certain termini, one of which shall be said city ; and upon the completion of certain other preliminary arrangements named in the act, to borrow money, not exceeding ten million dollars, for the purpose of the construction of such Sine of railway: your City Council having declared by a unani- mous vote in favor of the construction of such a line of railway, to connect the city of Cincinnati with the Southern system of railroads, and in accordance with the wise provisions of the act, where such grave responsibilities are to be assumed, it will become the duty of the citizens, on the 26th of June, to afiirm the action of their representatives. The object of the people of Cincinnati in making a Southern railroad, has several times been set forth in addresses to the pub- lic. It is to enlarge the market for her manufactures, to extend the area of commerce, to aid in developing a district of country, which is naturally tributary to this city — and by accomplishing this — to give greater employment to labor, and increased value to property. In one word — it is to secure greater growth and pros- perity to this city. That this may be seen more distinctly, we CINCISNATI SOUTHERN KAILWAY. 53 ■will state more at lengtli some of the Icnefils and advantages ex- pected to flow from this great enterprise: 1. There is an immense country south of the Ohio river, in which no city north or east of Ciaelnnati, can compete with it, on equal terms, in trade or in the sale of manufactures, since none of them can reach it so quickly, or so cheaply. Yet to only a small part of that district is this city now accessible by railroad. It is, therefore, evident that if we can get a railroad into the heart of that region, we shall accomplish the double purpose of gaining a direct and immediate access to that market, and of rapidly in- creasing the market itself, by developing the growth of the coun- try. The extent of thTs country, to which Cincinnati will assuredly become the commercial metropolis, embraces about 200,000 square miles, and in the whole of it, there is no lirge town ; to it, no eastern or northern city is, or can be, as accessible as Cincin- nati. This is tlie great fact, and when we look at this, we see far beyond the Ohio, a magnificent prize, ready to fall into our hands. It is like a golden apple, which we can pluck when we choose. When this Southern Kailroad shall be extended from Cincinnati to the proposed Southern terminus — -Chattanooga — it will the?e connect with roads ramifying to all parts of the Southern States and will draw to itself branches on every side. The country will soon be interpenetrated with railways. Its genial climate, rich agricultural resources, and wonderful deposits of mineral wealth will foon make it become rich and populous, demanding all the energies of Cincinnati, even if fourfold its present magni- tude, to supply its wants. 2. After looking at the vastness of this new field of enter- prise, let us see the extent of railway systems, which this trunk line would unite. In Ohio and Indiana on (he north and leading directly to Cincinnati, are 0,000 miles of railroad. South of East Tennessee and converging there, are all of 4,000 miles more. But between these two systems is what has hitherto been almost an impassable barrier — the thinly settled portion of Kentucky and Tennessee. A section of country that needs but to be made accessible by railroad to assume a front rank in material develop- ment. Take up your map and try to find a route by which you 6 54 CINCINNATI SOUTHERN RAILWAY. can go from the Northern railroad center in Cincinnati to the Southern in East Tennessee. Where will you go? It can be done; but you will first go almost due West, then South, then East, and then North ! In fine, you will have gone three-fourths round that district, and almost three times the distance you need have gone to get there on a tolerably direct railroad. If, there- fore, there were no object but that of connecting the great South- ern system of railroads with Cincinnati, it would be an object worthy of our greatest efforts. Make two or three hundred miles of good road, and you will gain the traflSc of 4,000 miles, for it would seem as if the entire system of railroads at the South had been constructed on purpose to pour its traffic through the pro- posed trunk line, like water gathered in a funnel. Yoa turn the faces of the Southern people towards the metropolis of the West, and make the cotton fields one of the markets of Cincinnati. 3. Look now to the special interests of manufactures in this city. It is safe to say, that 60,000 people in Cincinnati are en- gaged in the various operations of manufactures (exclusive of local mechanics), some parts of whose products are exported, and to whom it is a great object to extend their markets, that they may increase their products and their profits. In the multiplicity of its manufactures, Cincinnati has been remarkable. Its fabrics have been sold over a region of country one thousand miles in diameter ; and the varieties of those fabrics have been constantly increasing. In ten years, from 1840 to 1850, more than fifty (50) new branches of arts and manufactures were introduced into this city ; but it is now meeting competition in the great and flourishing towns which arise on the lakes and the Mississippi. This is the case in all the great district of the Northwest. But in the region which we have described, this competition can not be successful against us, if we can only get a direct route to it. There is a greater extent of country accessible to Cincinnati manufactures, and which can be supplied from no other quarter as well, than is within the exclusive reach of any other city in the United States. It is well known the Southern towns neither are, nor are likely to become, manufacturing places. Their supply of manufactured goods has heretofore been obtained almost entirely from the East, shipped coast-wise. This, and the CINCINNATI SOUTHERN RAILWAY. 55 return shipment of produce has made the great bulk of the im • mense coasting trade between the Eastern and Southern States. But it is very evident, that an article of manufacture, in iron, •wood or leather, for example, can not be shipped a greater dis- tance coast-wise, then transphipped and carried on land, in com- petition with the same articles from the interior, without transhipment. Except for the mere coast itself, this competition can not be maintained by Eastern manufacturers. It is an inevitable conclusion from the facts we have given, that the manufactures of Cincinnati must receive a great impulse, and be extended over a much wider area by the Southern road, which in fact will create a market for them almost to the Atlantic Coast. 4. Now, let the merchants of Cincinnati look to their account in this matter. They are in the same condition, as to this, with the manufacturers. It is not to be denied that in recent years, our merchants have met with unexpected competition. This arises from the fact that they have been trading almost exclusively with districts of country in which competition must every day increase. Cleveland, Toledo, Chicago on the Lakes, St. Louis on the Mississippi, and Louisville on the Ohio, are all growing up to be great cities. They extend the area of their trade to meet ours midway ; in those markets North and West it is not possi- ble to hold any exclusive advantages. But this is not true of that great country which extends South of us — there Cincinnati will have exclusive advantages — advantages which can not be taken away from her. Some one may say that the merchant will meet competition in the South from the Eastern Atlantic Cities. Not so at all, till you approach very near the Atlantic Coast. Further the decreased cost of transportation of the products of the South — rice, sugar, cotton, coffee, fruits, &c., will enable the merchants of Cincinnati to compete advantageously with North- ern and Eastern cities for this class of trade North of the Ohio river. The construction of the Southern road will thus assist our merchants to again recover some territory lost by the development of rival cities North and West of us. It is well known that Cincinnati cured meats are now sold in the interior of North and South Carolina. Can any one ever 56 CISCISSATI SOUTHEnif RAILWAY. imagine that those products can be sent to, Baltimore, reshipped down the Chesapeake, sent to the Southern coast, transhipped and sent into the interior, as cheaply as they can be sent on one line directly from this city ? It is impossible. We may con- sider then, without any exaggeration, that as the result of making a Southern direct road from Cincinnati, the whole 4,000 miles of Southern railroads and their branches will be as tribu- tary to the trade of Cincinnati as the roads on the North which now concentrate here. The Southern road will be, for the mer- chants of Cincinnati, not so much a mere railroad as a grand bridge, of which Cincinnati holds the gate ; a bridge which bridges over the gulf which separates the Northern and Southern systems of railroads, and a bridge over which the traffic of 10,000 miles of railroad must pass, and pay its tribute to this great metropolis. 5. To the builders, mechanics, and laborers of Cincinnati, this work presents obvious benefits, scarcely ever equaled. Cities live by trade and manufactures. If these languish, build- ings cease to be erected; mechanical occupations grow dull, and laborers are out of employment. At the present time Cincin- nati averages but a thousand new structures per annum. But at the rate of growth which she formerly had, she would build two thousand annually; and with the stimulus which a Southern trade trebled in value would give, might be expected to increase its buildings even more rapidly than that. Trade and manufac- tures increase population and wealth. Population demands houses, and wealth furnishes the means to build them. Stores, warehouses, factories, churches, and public buildings, all arise with enlarged commerce and productive industry. What is profitable for trade and manufactures is profitable for the me- chanic and laborer. Each depends upon the other, and all grow up with increased markets, new outlets, and new growth. All new works and. new enterprises furnish new employment for the Jaborer, and enables him to share in the profits and sreneral pros- perity of the community. The necessary distribution of money incident to the con- struction of the road will be felt at once by all classes— the me- chanic, the laborer, the builder, and the merchant. The prepa- CINCINNATI SOUTHEUN RAILWAY. 57 ration of material, the work of construction, and the increase of trafiSe, will furnish an active field for the exercises of energy, diversity of talent and skill, and secure prosperity, growth, and development to every department of industry. 6. To the holders of real estate, all the arguments which apply lo other members of the community, apply with greater force. Diminish the general business of any city, and you lessen the de- mand for houses and stores, and you lessen the demand for lots to build upon. There is no species of property which so cer- tainly diminishes in value with the reduction of business as does real estate. There are cities in Europe where no man expects to sell a house or lot for what he gave for it ; because business is no longer increasinir, and there is no new demand for property. Till within a few years, property rose in Cincinnati with great rapidity, because the population increased 100 per cent, in ten years. Those were the days of great activity in all public im- provements. Canals, roads, railroads, were making on every side, and business flowing in from every quarter. But the ac- tivity of growth declined with the decline of public improve- ments. The avenues of a city must continually extend, or the area of its markets can not be extended, and without increased markets, trade must languish, manufactures grow dull, and the laborer seek in vain for employment. With prudence, ho.-.esty, and the exercise of ordinary business skill in construction and management, the Cincinnati Southern Railway, instead of being a burthen on the city treasury, will be a source of profit. The diversity of climate and the natural productions of the two sections of our country that will be united by this common band of commercial interest will furnish in their respective wants a full and profitable traffic in goods wares, and products both ways. Fellow Citizens! We do not address you on a common topic, or with a view to common results. No city on this continent has ever had such a magnificent prize within its grasp. By the ex- penditure of less than five (5) per cent, on your capital, you can extend your markets over 200,000 square miles of territory which, without this effort, you can not get; because others will go there if you do not. You may bring four millions of people 58 CINCINNATI SOnTHBRN RAILWAY. within the area of your trade, who are now diverted from yon to the cities of the Atlantic. You can increase the demand for your manufactures to fourfold the present extent ! You can thua give employment to thousands of mechanics and laborers, who are now passing on to other cities of the West. You may in- crease the profits of all bui5iness, increase the number of the people, expand the limits of the city, crown its hills with new structures, and adorn them with new works of art. In fine, you may renew in Cincinnati the poiverful impulse of progress, and maintain its position as the metropolis of the mighty West. — OF — Board of Trade and Chamber of Commerce AGAINST ANY ALTERATION OR REPEAL — OF THE — KN-A^BLINC* ACT. ACTION OF BOARD OF TRADE. The Board of Trade met in special session, on tte evening of December 28, 1871, to consider the following preamble and resolution oflFered by N. Macneale, Esq., viz : " Whereas, An act of the General Assembly of Ohio, passed May 4, 1869, and decided by the Supreme Court to be constitu- tional, enables our city to build a Southern Railway, which can be operated for our special benefit ; and, " Whereas, The construetion of such a road will be of ines- timable benefit to the commercial and manufacturing interests of our city, and a means of largely increasing the value of real estate ; and, " Whereas, This increased prosperity will enable all classes line of EAiLWAY." And upon the other set shall be printed : " Special election to decide for or against providing a line cf railway between Cincinnatu Ohio, and the city of Chat- tanooga, State of Tennessee. Against providing said line OF railway." Thirdly. That the Mayor of the said city of Cincinnati bC; and he is hereby directed to Issue his proclamation to the quahfied voters of said city, giving notice of said special election, and of the time and places of holding bhe 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 b& made to the city clerk, and shall by him be laid before the city council, who shall declare the result by a resolu- tion. CINCINNATI SODTHEHN RAILWAY. 73 That in pursuance and by virtue of paid resolutions the Hon- John F. Torrence^ Mayor of the said city of Cincinnati, did by his proclamation pubHshed 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 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 thousand four hun- dred and thirty-five (15,435) ballots of the qualified electors of eaid 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 Chattanooga, in the State of Tennessee. 74 CINCINNATI BOUTHERN RAILWAY. 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 appointment 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 be entered on the minutes of the said court, as the act provides. That on the said 30th day of June, 1869, the follow- ing order was made and entered upon the minutes of the said court : In the matter of the application of the city of Cincinnati for the appointment of the trustees of the Cincinnati Southern Railway. The petition of the city of Cincinnati, by J. Bryant Walker, city solicitor for said city, havipg been 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 1869, entitled "An Act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants. ' And the court and the judges thereof being satisfied, and finding that all the statements made in the said petition are true in substance and in fact, hereby appoint Richard M. Bishop, Edward A. Ferguson, Miles Greenwood, Philip Heidelbach and William Hooper, to be trustees of the Cincinnati Southern Railway, with the powers given in the act aforesaid, and order that the said trustees severally enter into bond to the- said city of Cincinnati, CINCINNATI SOUTHERN RAILWAY. 75 in the sum of one hundred thousand dollars with four sureties each, to be approved by the court, conditioned for the faithful discharge of their duties. And it is also ordered that upon giving bond as aforesaid, the clerk of this court deliver a certified copy of this order to each of said trustees as the evidence of his appointment. 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. 518. 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 H. Gould, William S. Dickinson, James A. Frazer and Wm. Glenn. 2 — As sureties for Edward A. Ferguson, as trustee aforesaid, Charles W. West, Anthony D. Bullock, Henry Lewis and John Schiflf. 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 Thorner. 5 — As sureties for William Hooper, as trustee afore- said. Learner B. Harrison, Leverett G. E. Stone, David H. Taylor and Thomas R. Biggs. And the court being satisfied that such sureties are sufficient, approve the said bonds with the sureties afore- 76 CINCINNATI SOUTHEEN RAILWAY. said, and order that the city solicitor receive and deposit said bonds with the treasurer of the said city of Cincin- nati, as is provided by the statute. 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 1869, 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 City Treasurer for Bonds ) City of Cincinnati, Treasurer's Office, July 6, 1869. Received of J. Bryant Walker, city solicitor, the bonds of the following named trustees of the Southern Railway. Wm. Hooper, Miles Greenwook, R. M. Bishop, P. Heidelbach, E. A. Ferguson. Filed in the city treasurer's office, according to law. Robert Moore, City Treasurer. That on the 6th day of July, 1869, they met and chose Miles Greenwood president, and appointed Henry H. Ta- tem secretary, and ordered that their office be 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 S 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 CINCINNATI SOUTHERN RAILWAY. 77 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 Slate, however, no grant has yet been made. That for the purpose of further enabling the trustees appointed under said act of May 4th, 1869, 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 : AW ACT supplementary to the act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants, passed May 4, A. d. 1869. Sec. 1. Be it enacted ly the 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 said 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 trustees as a loan, to be repaid out of the proceeds of the first bonds sold. That Charles H. Titus is the auditor of the city of Cin- cinnati, and that a poi'tion of the funds so appropriated 78 CISCINNATI SOUTHEIIN RAILWAY. are still unpaid, and that tie 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 void, and that the advance of such money is a misapplication of the funds of the corporation and in contravention of the laws governing the same, and is not proper corporate use. Wherefore plaintiff prays the court to enjoin the pay- ment of said money so appropriated, and for such other relief as may be equitable and just. J. BRYANT WALKER, Solicitor. State of Ohio, ) Hamilton County.^ J. Bryant Walker on oath says that the facts set forth in the above petition are true. J. BRYANT WALKER. Subscribed in my presence and sworn to before me by said affiant this 11th day of AprU, 1870. [n. p. SEAL.] J, W. WARRINGTON, Notary Public. CINCINNATI SOUTHERN RAILWAY. 79 (Praecipe.) J. Bryant Walker, Solicitor of Cincin- nati, and a taxpayer of said city, Plaint'iffji 'VS. I Superior Court City of Cincinnati, Chas. H. Titus, Audi- tor, and Wm. Hooper, Miles Green-/ of Cincinnati. "WOOD, R. M. BisECP, P. Heidelbach and|j B. A. Ferguson, Trustees of the Cin- cinnati Southern Eailway, Defendants. To Clerk: Issue summons to each of the above named defend- ants, and endorse on summons : For injunction and other rehef WALKER & CONNER, jSolidiors. Whereupon, on the 12th day of April, A. D. 1870, there was 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 : Tee S^te of Ohio, ^ ^ .^^. ^^^^^ ^^ ^.^_ Hamilton County, _ ^ ^.^^^^. Oity of Uincinnati,^ (Summons.) To the Sheriff of the County of Hamilton: You are commanded to notify the city of Cincinnati, Chas. H. Titus, auditor, and Wm. Hooper, Miles Green- wood, R. M. Bishop, P. Heidelbach, and E. A, Ferguson, 80 CINCIiSNATI SOUTHERN RAILWAY. trustees of the Cincinnati Southern Railway, defendants, that they have been sued by J. Bryant Walker, solicitor of the city of Cincinnati, and a taxpayer 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 of 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. 1870. Witness my hand and the seal of said court at Cincin- nati, this 12th day of April, one thousand eight hundred and seventy. [seal.] II. H. TINKER, Clerk of the Superior Court of Cincinnati. By Emil Hoffman, Deputy. Which said summons is endorsed as follows to- wit : (Endorsed.) Summons in action for injunction and other relief. To 25th day of April, 1870. WALKER & CONNER, Attorneys. 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 : (Return.) 1870. April 12. Served city of Cincinnati by deliv- ering true copy to John F. Torrence, mayor, personally. Served Chas. H. Titus, auditor, with copy personally. CINCINNATI SOnTIlEEN RAILWAY. 81 1870. April 13. Served Wm. Hooper, P. Heidelbach and E. A. Ferguson, e:ich with copy personally. Served Miles Greenwood and R. M. Bishop, each, by leaving copy at his residence, Trustees of the Cincinnati Southern Railwaj'. D. WEBER, Sheriff. By I. 11. 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 office of the clerk of said court their certain demurrer, clothed in the words and figures following, to-wit . J. Bryant Walkeu, Solicitor of the City of Cincinniti and a Tax payer of said city, Plaintff, against Superior Court of ^ Cincinnati. The City of Cincinnati, Charles H. Titus, Auditor, William Hooper,! No. 26,007. MiL'iS Greenvtood, R. M. Bishop,] P. Heidelbach and E. A. Fergu- son, Trustees of the Cincinnati Southern Railway, Defendants. (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 for defendants. 82 CINCINNATI SOUTHERN RAILWAY. 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 : J. Brtant Walker, City Solicitor,\ and a taxpayer of said city of I iJincinnati. Superior Court of against { ^ I No. 26,007. The City of Cincinnati and Other s./ (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. CINCINNATI SOUTHERN RAILWAY. 83 GENERAL TERM OF JANUARY, A. D. 1871. Pleas at the city of Cincinnati, in the county of Hamilton, State of Ohio, in the General Term of January, anno domini one thousand eight hundred and seventy-one, of the Superior Court of Cincinnati, held by the Honorables Bel- lamy Storer, Alphonso Taft and 31. B. Mayans, Judges of the said court, sitting in room No. 3, m the court house, in the city of Cincinnati, county and State aforesaid, the Hon. M, B. Hagans presiding. 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 : J. Bryant Walker, Solicitor of the\ city of Cincinnati, and a Tax- Superior Court of payer of said city, Plaintiff,] ^. . Against / Cincinnati. The City of Cincinnati, Chas. H.l „ Titus, Auditor, and Wm. Hooper,/ ^°- '^^'""^• Miles Greenwood, R. M. Bishop,! q ? y P. Heidelbach, and E. A. Fergu-\ SON, Trustees of the Cincinnati I ^^_ j gQg Southern Railway, Defendants.! [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, therefore, ordered and adjudged that the plaintiff's petition be dismissed, and that the defendant's recover their costs herein to be taxed. 84 CINCINNATI SOUTHERN RAILWAY. TT 11 n^ J ' ^ Superior Court of Ilamillon (Jouinii, / set. Vr- • .• Lity of Lmcinnaii.y I, II. H. 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 plaintiff^ and city of Cincinnati, Chas. H. Titus, Auditor, Wm. Hooper, Miles Greenwood, R. M. Bishop, P. Heidelbach, 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 11th day of January, A. d. 1871. [seal.] II. H. TINKER, Clerk of the Superior Court of Cincinnati. OPINION OF THE COURT. SUPERIOR COURT OF CINCINNATI. In General Term, January A, ^8 7/. J. Bryant Walker, l^olicitor of the city of Cincinnati and a Taxpayer of said City, Plainlvff. VERSUS The City of Cincinnati, Chas. H. Titus, Auditor, and William Hooper, Miles Greenwood, Richard M. Bishop, Philip Heidelbach and E. A. Pjerguson, Trus- tees of the Southern Railway, Defendants. OPINION OF THE COURT. 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 Legisla- 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 for that purpose j 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- 7 86 OINOINNATI SOUTHERN RiSILWAT. lature of Tennessee to build the road through that State, and applied to the Legislature of Kentucky for a like consent ;. that the Ohio LegislatuTe have passed another act, of March 25, 1870, supplementary to that of May 4, 1869, authorizing the city, to advance fifty thousand dollars to the trustees for the purpose of casrrying into effect the object of their appointment, to be repaid out of the bonds to be issued under the ori^nal act ; that the Auditor has appropriated a portion of said fund, and there remains a part unappropriated; that the acts above mentioned are unconstitutional and void, and the advance of this money a misapplication of the pubHc funds and not a proper corporate use, and asking an injunction. The defendants have demurred. THE QITESTION TO BE DETERMINED. We have thus presented for our consideratiort the constitutionality of those acts by which the city of Cin- cinnati has been authorized to construct the Southern Railroad, and to expend money preliminary to its con- struction by surveys and other preparations for the work. IMPORTANCE OF THE RAILWAY AS A CINCINNATI PROJECT. That the Legislature regarded the road as a matter of puMic concern to the city, and a proper work to be carried through by taxation on city property, is shown by the enactment of the law authorizing the issue of the bonds to build it, and the levy of the tax to pay the interest thereon,- and that the people of Cincinnati entertain a like opinion is also evinced by the popular OINCINNATJ SOUTBEBN HAILWAY. vote, as well as by the proceedings of the legislative body of ike city. The importance of this project, as a Cincinnati project, and its public character as a subject of taxation, are ques- tions, therefore, whi<;h bav-e already been decided by those most deeply concerned, and by those who have been especially and primarily intrusted with their decision ; and it would require a clear case against the opinions of the city and State Legislatures, thus unequivocally, ex- pressed, to justify the court in contradicting them in its finding «(m this point. THE CONSTKUCTION OF A RAILEOAB WITnlN THE SOOPE 01'' MUNICI- i-AL TAXATION. It has 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 of, and prior to, the restriction in our present Constitution, and the issue of bonds and ihe 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 ma-de having been passed prior to the change in the Constitution. If the con- .stru-ction of a railroad had been a purpose beyond the scope of municipal taxation, the restriction in the new Constitution upen 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 raiboad company was a, private corporation, and 88 CINCINNATI SODTHEBN RAILWAlT. 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; 14 0.8.472,479.) 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. {Cass vs. Dillon, 2 0. S. 608; Cin- cinnati, Wilmington 4" Zanesville Railroad Company vs Commissioners of Clinton County, 1 0. S. 77; Fosdick vs. Village of Perryshurg, 14 0. S. 473.) THE STATE NOR THE CITY CAN NOT LOAN TO A PRIVATE COR- PORATION. It evidently follows, from these repeated adjudications, that, if the Legislature, under the old Constitution, in- stead of authorizing municipal corporations to aid private corporations in constructing railroads, by the issue of bonds, or subscription to the capital stock of such com- panies, had 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 loan money to a private corporation, in order that it might build it. By the latter plan, the accomplishment of a pubhc purpose through the apphcation of the public CINCINNATI SOUTHERN RAILWAY. 89 funds, was 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 shair never authorize any county, citjr, 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 raise 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 in them. The power to authorize the city itself to 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 shall not, in any manner, be given or loaned to, or in aid of, any individual, associ- ation, or corporation whatever, nor shall the State 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 to the adoption of the Constitution, "it was com. potent for the Legislature, under the Constitution of 1802, to construct works of improvement on behalf of the State," as it 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 90 CINCINNATI SOUTHEKN RAILWAY. Cincinnati and Whitewater Canal Company, "and to levy- taxes to raise the means, or by an exercise of the same pov/er 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. & Z. R. B. Comjxiny vs. Clinton County, 1 0. S. R. R., 77, and S. & ]■ R. R- Gom-pany vs. North Township, 1 0. S. R., 105; also several other cases, as 1 0, S. R,, 163 ; 2 0. S. R., 60S ; 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. A MUNICIPAL CORPORATION CAN BE AUTHORIZED TO EXTEND ITS FUNDS ON NECESSARY PUBLIC IMPROVEMENTS. 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- vision intended to prohibit the State itself from accom- plishing 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 cons' ruction 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 become members of CINCINNATI SOUTHERN RAILWAY. 91 trading corporations, for any purpose whatever. But they can bo 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, CONSTITUTIONALITY OF THE ACTS. 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. If, 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. IN A DOUBTFUL CASE JUDICIAL INTERFERENCE NOT WARRANTED. The incompatibility must be clear, to warrant the set- ting aside of an act of the Legislature duly passed. G. W.and Z. B. JR. vs. Commissioners of Clinton county, 1 0. S. R. 823 ; Lehman vs. McBride, 15 0. S. R. 591; lOO. R. 235;110. S.R. 641. In Lehman vs. McBride, our Supreme Court declared "that while it was the right and the duty of judicial tribunals to give full force and effect to the organic law of the State, and, therefore, to declare null and void any attempted acts of legislation which contravene the hmita- tions imposed by the Constitution upon Legislative power, 92 CINCINNATI SOUTHERN RAILWAY. 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 Sharpless vs. Philadeljjhia, 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. Hooser, 9 B. Monroe, 345, the court declared that a "tax must be considered valid, unless it be for a purpose in which the community taxed has palpably no interest." We are not 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. THE OBJECTION AS TO THE SODTHERN RAILWAY EXTENDING BEYCND THE STATE. The objection has been suggested that the Southern Railroad is to extend a great distance from Cincinnati, and beyond the lilnits of the State of Ohio. The objection is plausible. But power has often been granted to cities CINCINNATI SODTHERN RAILWAY. 93 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 river, 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 buUt under such a law. The Infirmary was beyond its Umits, 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 aU the necessary agencies for the procuring, transporting, delivery of said coal," to the city, for the. purpose of pro- tecting the citizens 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 principally 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 hke law of the Legislature, the city of Cincin- nati has already invested $150,000 in the railroad from Cincinnati to Lexington, in the same general direction as that contemplated for the Southern Railroad, and alto- gether outside the State of Ohio. 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 94 CINCINNATI SOUTHERN RAILWAY. required that an aqueduct should be constructed by the cit}', 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- cinnati, 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 DO evidence on which we can so find in the present case. REFERENCE TO CASES CITED. 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 opin- ion decided that the levy of a tax to raise money to give to H railroad company, either by loan, or by subscription, 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 where 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 been settled by judicial decision," and "that there is nothing ia the present Constitution of Ohio designed to CmCIKNATI SOUTHEEN RAILWAY. fS 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. TJw Sheboygan Railroad Company in the Supreme Court of Wisconsin, as published in 9 Am. Law Reg. 156, 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 Stite, 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. CONCLUSION. 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 vahd — in which opinion we are unanimous. Stoeer, 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, 96 CINCINNATI SOUTHERN RAILWAY. combining them with his own, that it is scarcely neces- sary they should do more than to subscribe to his opin- ion. There was one idea, however, it might be proper to refer 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 sic!e 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. DECISION SUPREME COURT OF OHIO. In the Supreme Court of Ohio. December Term, 1871. Hon. JosrAH Scott, Chief Justice, and Hon. John Welsh, Hon. William White, Hon. Luther Day, and Hon. George McIlvaine, Judges. J. Bryant Walker, Solicitof of the City of Cincinnati, and a taxpayer of said City, Plaintiff, versus The ChY of CinciMati Ch^s. H. Titus, Auditor, and William Hooper, Miles Greenwood, Richard M. BiSHOP, Philip HEiDELBACH and B. A. Ferguson, Trus* tees of tiie Southern Railway, Deftndanis^ ON ERROR TO THE SUPERIOR COURT OF CINCINNATI. CINCINNATI SOUTHERN RAILWAY. 99 1. Courts can not nullify an act of legislation on the vague ground that they think it opposed to a general latent spirit 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 adjudication, that, in- dependent of constitutional prohibitions, it is within the legitimate scope of legislative power to authorize a city to aid in the construction of railroads or other public improtemcnts, in which such city has a special interest, and to impose taxes upon its citizens for that purpose. It follows that it is equally competent for the Legislature to authorize the entire construction of such improvements by a city having a special interest therein, and to empower the local authorities to provide means therefor by the taxation of its citizens. 3. When the authority given is to construct a line of railroad having one of its termini in such citj, it does not affect the question of power that the road when constructed will lie mainly outside of the State of 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. 4. The authority and duty to prevent an abuse of the powers of taxa- tion and assessment by municipal corporations is intrusted by the Con- stitution to the General Assembly and not to the courts of the State ; and the power of th& 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. 5. The act of the General Assembly of this State, passed March 4, 18(39, entitled " An act relating to cities of the first class having a popu- lation 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 authoriiy on the Judges of the Superior Court of Cincinnati, to appoint trustees to carry out the purposes of the act, is not the exercise of an appointing power by the General Assem- bly, ivhich article 2, section 27, of the Constitution forbids ; it is not the creation of a, new of&ce, but the annexing of a new duty to an ex- isting 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 oases not provided for in the 100 CINCINNATI SOUTHERN BAIL WAY. Constitution, to fix the term of office and compensation of all officers. The trustees, for whose appointment it provides, arc not public officers ■within the meaning of this provision; and finally the act Tiolatea neither the express, nor clearly implied, prohibitions of article 8, sec- tion 6, which declares: "The General Asse iibly 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 & Kittredge, and Scribner & Hurd, for the plaintiff. Messrs. St.inbery, Caldwell & Matthews, for the de- fendants. OPINION OF THE COUKT. ScoiT, Ch. 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 March 4th, 1869, entitled " An act" relating to cities of the first class having a population exceeding one hundred and fifty thousand 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 coun- cil shall, by resolution, have declared such line of railway CINCINNATI SOUTHERN RAILWAY. 101 to be essential to the interest of the city, nor until 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' pubhc 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, sufQcient with such net income to pay the interest and provide a sinking fund for the final redemption of the bonds. 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 rail- way, 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. Bat fifteen hundred of the electors of the city voted against the proposed project; 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 for the purpose of constructing such a line of railway by the means and in the manner pre- scribed in the act. The consequences which may reason- ably be expected to result from the exorcise by municipal 102 CINCINNATI SOUTHERN RAILWAY. corporations of powers such as this act purports to con- fer, both in respect to public and private interests, are so monstrous as to make it difficult to overestimate the im- portance of the question, and to demand, at our hands, the most careful investigation and deliberate considera- tion. This is the first instance in the history of the State, so far as we are a'A'are, in which the General As- sembly has undeitaken to authorize municipalities to em- bark in the business of constructing railroads on their own sole accouat, as local improvements. The railway contemplated 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 should it . prove inadequate for the completion of the road, we may reasonably expect it to be increased by subsequent legislation. These considera- tions, and the apparent abuse of discretion 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 wis- dom, or even of the justice, of the manner in which that power, if it exists, has been exercised. Had we jurisdic- tion 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 in- quire under what conditions it becomes competent for the judiciary to declare an attempted act of legislation, for- mally enacted by the General Assembly, to be invalid by reason of unconstitutionality. Courts cannot, in our judgment, nullify an act of legislation on the vague CINCINNATI eODTHERN RAILWAY. 103 ground that they think it opposed to a general "latent spirit" supposed to pervade or underlie the Consti- tution, but which neither its terms nor its implications clearly disclose in any of its parts. To do so would be to arrogate the power of making the Constitution 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 constitution 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 this subject we can not do better than to adopt what is so well said by Judge Cooley in his treatise on " Consti- tutional Limitations," pp. 128, 129, when, 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 inust depend for their enforcement iqjoii legislative wisdom, discretion and conscience. The Legidature is to n^ake 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 ivilh a large discretion, which can not be controlled hy the courts, except, perhaps, ' 104 CINCINNATI SOUTHERN RAILWAY. 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 the constitution imposes, and not those implied restrictions, which, resting in theory only, the people have heen satisfied to leave to the judgment, piatriotism, and sense of justice of their representatives.'" And he adds on page 171 : "Nor are the courts at liherty 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, Cochran v. Van Surlay, 20 Wend., 381 ; People v. Gallagher, 4th Mich, 244; Bensen v. Mayor of Albany, 24th Barb, 252; Grant v. Courier, 24 Barb. 232; Wynshamer v. Peojole, 13 N. Y., 391. We do not Understand it to bo claimed that the act m question is an assumption of any of the powers specially delegated to the general government by the Constitution of the United States; nor that it is an encroachment upon the functions and powers conferred by the State constitution on other departments of the government and, therefore, impHedly withheld from the General Assembly. The only questions, therefore, with which we have to deal are : First, whether the act is within the general grant of legislative power which the Constitution declares to be vested in the General Assembly ; and second, does it contravene any of the limitations upon the exercise of legislative power, which c;re either ex- pressed or clearly imphed in any of the provisions of CINCINNATI SOUTHERN RAILWAY. 105 that instrument? And before we can answer the former question in the negative, or the latter in the affirmative, our convictions must be clear and free from doubt. Lelivian v. McBride, 15 0. St., 291 ; C. W. & Z. R. B. Co. V. Oommissioners Clinton Co., 1 0. St.. 77, and authorities there cited. Let us, then, consider, first, whether this act is within the general scope of legisla- tive power, independent of special constitutional prohibi- tions. That it is within the legitimate scope of legislative power to authorize a municipality of the State to aid in the construction of a public improvement, such as a rail- road, by becoming a stockholder in a corporation created for that purpose, and to levy taxes to pay the subscription, must be regarded as fully settled in this State by repeated adjudication. In the case of C. W- & Z. R. li. Co. V. Com. of Clinton County, 1st 0. St., 77, the subject was very fully considered, and it was held that, as the State may itself construct roads, canals, and other descriptions of internal improvement, so it may employ any lawful means and agencies for that purpose, among T^hich are private companies incorporated for the construction of such improvements. And it was said that, for much stronger reasons, counties might be au- thorized to construct works of a similar kind, of a local character, having a special relation to their business and interests. And as the State might construct or authorize the counties to construct these works entire, or create cor- porations to do it entire, it was held that, as a question of poiver, each might be authorized to do a part. The validity of subscriptions to the stock of railroad corpora- tions, made by counties, cities, towns, and townships of 106 CINCINNATI SODTHKHN RAILWAY. the state, under special legislative authority, has been drawn in question in many cases which have since came before this court, and in none of them has the authority of the Legislature to grant such power of subscription been doubted. 1 0. St. 105; Id. 153 ; 2 0. St. 607; Id. 647 ; 6 0. St. 280 ; 7 0. St. 327 ; 8 0. St. 394 ; Id. 564 ; 11 0. St. 183 ; 12 0. St. 596 ; Id. 624; 14 0. St. 260; Id, 472 ; Id, 569; and the cases in which such legislative authority has been upheld by the courts of last resort in other States are too numerous even for reference. A list of more than fifty such cases may be found in Judge Cooley's treatise before referred to, p. 119, note 4. If we even admit that all these decisions have been unwise, yet it is clearly too late to overrule them in this State, were the question a new one, and properly deter- minable by the judgment of a court, we should, perhaps, concur in opinion with Judge Redfield, that subscription 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 right of authority is all in our direction, and it is now too late to bring the matter into serious debate," 2 Redf on Railway, 398, 399, note, and if in the absence of constitu- tional prohibitions, a municipal corporation may be authorized to aid by stock subscriptions in the construc- tion of a railway jwhich 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 expense, 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 CINCINNATI SOUTHERN EAILWAY. 107 the case of the C. W. & Z. R. R. already referied to quote approvingly from the case of Goodin vs. Crump & 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 inquiries ? 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 vs. Mayor of Philadelphia, 21 Perm. St. R. 147, it was said by C. J. Black, "if the Legis- lature may create a debt, and lay taxes on the whole people to pay such subscriptions, may they not with more justice, and greater propriety, and with as clear a con- stitutional 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 not be answered in the negative." .... I 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 similar work, which is especially useful to such county or city, provided the State refuses to do it herself, and permit 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- bury, three hundred and forty-six miles west of Philadel- phia. Both subscriptions were sustained, and the court 108 CINCINNATI SOUTHERN RAILWAY. said : '• It is the intey^est 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 flush. All beyond that is a question of expediency not of laws, much less of con- stitutional law, "By the act under consideration no i-ail- roads are authorized to be constructeil, except such as have one of their termini in the city which constructs them, and that a city has no peculiar corporate interest in such channels of commerce as lead directly into it, is a proposition which, to say the least, is very far from being clearly 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 he 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 active 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 Legislature has determined a particular public improve- ment to be of a local character, and has imposed the bur- CINCINNATI SOUTHERN BAIL WAY. 109 dsa of its canstruction on an nnwilHng municipality. But it is the case of an authority given to a city to exer- cise its powers of taxation only for the construction of an improvement which the local authority 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 organiza- tions, properly invested by immemorial usage, with powers of assessment and taxation for local purposes of a public character, but which were nevertheless 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 declares in article 13, section 6, that the "General Assembly shall provide for the organiza- tion of cities and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrow- ing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers." •It is very clear that this constitutional mandate can not be enforced according to judicial discretion and judg- ment. In the very nature of the "case, the power which is to impose restrictions, so as to prevent abuse, must de- termine what is an abuse, and what restrictions are nec- essary 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 judgment for that of the Legislature, in any case where the Constitution has vested the Legislature with power over the subject, 110 CINOINKiTI SOUTHERN RAILWAY. that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion 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 legislative power, it must be considered as practically absolute, whether it operate accordij^g 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- ism of the representatives of the people. If this fail, the people 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 that 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 put- pose ; for it is of the essence of a tax that it be for a puhlic ^i>e. 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 peculiar 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. CINCINNATI SOUTHERN RAILWAY. Ill We have been referred to recent adjudications in several States, which are supposed to sustain the claim, that tax- ation 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. 15G, it was held that " a statute levying a tax for the sole pur- pose of making a direct gift of the money raised to a mere private railway, in which the State or the taxpayers have no ownership, is unconstitutional." The case from Michigan, of The Peoj)le exrel. The Detroit tO Howell R. R. Co. vs. Toionship of Sa- lem, proceeds upon the same grounds. But, in the case now before us, the road is the property of the taxpayers, who furnish the means to build it. The recent decisions in Iowa are in conflict with the former uniform line of decisions on the subject in the same State, and in all the cases referred to in either of those States, the reasoning upon which the decisions rest, is in conflict with what we can not but regard as the settled law of this State. We are brought to the conclusion that there is nothing in the general purport and main object of this act. which places it outside of the sphere of legitimate legislative power. We proceed to consider whether it is in conflict with any of the express limitations imposed by the Con- stitution. It is claimed that the General Assembly, in the act in question, by authorizing the Judges of the Superior Court to appoint trustees of the contemplated railway, have exercised an appointing power which is for- bidden by the 27th section of the 2d article of the Con- stitution. The argument is, that the trustees whom the act authorizes the court to appoint, are jmhlic officers; that their appointment is not the exercise of a judicial 112 CINCINNATI SOUTHERN RAILWAY. function, or of any power that can be conferred on the judges of the court as such; and that the conferring of this power of appointment is the creation of a new and independent office, which can not be filled \)y the appoint- ment of the Legislature, whether the appoi ntment be desig- nated by name or by reference to another office which he holds. In the same connection, it is claimed that this power of appointment is conferred on the Judges of the Superior Court in violation of art. 4, sec. 14, of the Constitution, which prohibits the Judges of the Supreme Court and the Court of Common Pleas from holding any other of- fice of profit .or tru.^t under the authority of this State or the United States ; and it is further argued that the act is in conflict with art. 2, sec. 20, of the Constitution, be- cause it does not fix the term of office and compensation of the trustees. Are any of these positions clearly well taken ? . We shall first enquire whether the power of appoint- ment conferred by this act on the Judges of the Superior Court involves the exercise of an appelating power by the General Assembly, were the judges thereby appointed to a public office? In support of the affirmative of this question, we are referred to the decision of this court in the case of the State on relation of the Attorney ■ Gen- eral vs. Kennon, et al., 7 0. St. R. 546, in that case it was held that the selection and designation, by name of the defendants, by the General Assembly, to exercise continuously and as a part of the regular and permanent administration- of the government, important public powers, trusts, and duties, is an appointment to office. But we think the present case can not be brought within the principle of that decision. In this case, there is no CINCISNATI SOUTHERN RAILWAY. 113 designation of individuals by name to exercise any pub- lic functions whatever. It is clearly the case of an ad- ditional power or duty annexed to existing offices, and not the creation of a new office. Upon the filing of a petition by the city solicitor in the Superior Court; pray- ing for the appointment of trustees, it is made the duty of the judges of that court to make such appointment, and to enter the same on the minutes of their court. The pov\er of appointment and of subsequent removal for un- faithfulness, can be exercised only by the court, as such, and all power of control in the premises on the part of the judges ceases with the termination of their judicial offices. It is true that the act confers a new power on the Judges of the Superior Court ; but, as was said by Judge Swan, in his concurring opinion in the case referred to, "if adding to the duties or powers of existing offices is an exercise of the appointing power, then every new duty required or power conferred upon any State, county, or township officer, must be deemed the exercise, by the General Assembly, of the appointing power, and forbid- den by the Constitution." But it is said that the appointment of these trustees is not the exercise of a judicial function. Suppose this to be so; does it follow that no functions except such as are purely judicial, can be consti'-utioaaily annexed to the office of a judge? Can judges not be made conserva- tors of the peace, and, as such, be required to discharge duties which are not of a judicial character ? If no power of appointment to any office or posifoi of public trust can be devolved upon a court or judge, it is certain that many of the statutes of this State are invalid. Quite a number of statutes have been referred to by counsel in 114 CIN-OINNATI SOUTHERN RAILWAY. which such power of appointment is given to Probate Judges, Judges of the Court of Common Pleas, and Judges of the Superior Court. But is it clear that the selection and appointment of these trustees which the act requires to be made by the Judges of the Superior Court, and to be entered on the minu'es of the court, is in no sense a judicial act? It is the act of a court, and the selection of the trustees, and the fixing of the amount of their bonds, require the exercise of judgment and dis- cretion. Authorities are not wanting to show that such an act is properly judicial in its character. Thus, where a statute of New York authorized a town to issue bonds to aid in the construction of a railroad, and made it the duty of the county judge to appoint, under his hand and seal, three commissioners, to carry into effect the purposes of the act, it was held by the Supreme Court of that State that the act of making such appointment was judicial. It was said by the court : '• The action sought from the county judge is judicial. It is conferred by the statute upon the office of county judge to be exercised under its seal. The duty requires the exercise of judgment and discretion in the selection of commissioners. The indi- vidual is in no way responsible for any act of those he may select, in the discharge of their duties. In no sense is the act of selecting commissioners ministerial. They do not act on the command of the county judge ; he is- sues no process to them. If, after appointment, the per- sons designated accept and act, they do so under, and by virtue of, the statute, and not in virtue of the order des- ignating them as commissioners." Sweet vs. HuTbert, 51 Barb. S. C. Rep. 315. Nor do we think that these CINCINNATI SOUTHERN RAILWAY. 115 trustees are officers within the meaning of that clause of the Constitution which provides that ''the General As- sembly, in cases not provided for in this Constitution, shall fix the term of office, and the compensation of all officers." This clause can not be regarded as comprehending more than such offices as may be created to aid in the permanent administration of the government. It can not include all the agencies which the General Assembly may authorize municipal and other corporations to em- ploy for local and temporary purposes.' -Tha trustees have no connection with the government of the State, or of any of its subdivisions. They have nothing to do with the general protection and security of persons or property. Their sole duty is to procure and superintend the construction of a particular road, and to lease it, when constructed. When this shall have been done, so far as appears from the act, their functions end. And in the road, when constructed, the State will have no pro- prietary interest. All the railroads of the Stale, though owned and operated by private corporations, are in an important sense public improvements; yet the officers who manage them and superintend their pecuniary inter- ests, are not public officers within the meaning of this constitutional provision. No one supposes that the com- pensation of such officers must be fixed by the Legisla- ture. It remains to consider, with reference to the general purpose and object of the act, whether there are in the Constitution special limitations on the general legislative power vested in the General Assembly, which prohibits the authorizing of a city to raise, by taxation of its citi- 116 CINCINNATI SOUTHERN RAILWAY. zens, the means for constructing a railroad leading into such city, when such an improvement is deemed by a majority of the citizens to be essential to its interests. It is claimed that the grant of such authority is in violation of article 8, section 6, of the Constitution, which reads as follows : Art. VIII, Sec. 6. "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 what- ever ; or- to raise money or loan its credit to, or in aid ofj any such company, corporation, or association."' It is proper to consider this section in connection with the sections which precede it in the same article, and with some provisions found in other articles which bear more or less directly upon the same and kindred subjects. The first two sections of this article enumerate the purposes for which the State may contract debts, and the third section declares that, except the debts thus specified, "no debt whatever shall hereafter be created by, or on behalf of, the State." The fourth section declares that " the credit of the State shall not, in any manner, be given or loaned to, or in aid of, any individual, associ- ation, or corporation whatever ; nor shall the State ever hereafter become a joint owner or stockholder in any company or association, in this State, or elsewhere, formed for any purpose whatever." The fifth section forbids the assumption, by the State, of the debts of any county, city, town, or township, or of any corporation whatever, unless such debts shall have bsen created to repel in- vasion, suppress insurrection, or defend the State in war. In art. 12, sec. 6, it is declared "the State shall never CINCINNATI SOUTHERN RAILWAY. HJ contract any debt for purposes of internal improvement." And art. 13, sec. 6, provides as follows: "The General Assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their powers of taxation, assessment, borrowing money, conr tracting debts, and loaning their credit, so as to prevent the abuse of such power." In Cass vs. Dillon, 2 0. St. Hep. 613, 614, it was held, and we think properly, that the limitations imposed upon the State by the first three sections of art. 8, were not intended as limitations upon her political subdivisions — her counties and townships And the clear implications of the fifth section are that counties, cities, towns, and townships may create debts to repel invasion, suppress insurrection, or defend the State in war; which the State may assume; and may also create debts lor other purposes, which the State is forbidden to assume. By the fourth section, a limitation is imposed in respect to the State, similar to that pre- scribed in the sixth section, in regard to counties, cities, towns, and townships. The State and her municipahties and subdivisions are clearly distinguished,, and treated of separately. It is to the latter that the inhibitions of the sixth section re- late. What are the extent and purport of those inhibi- tions ? Its own language must furnish the answer to this question, if that language be plain and unambiguous. Of course, I do not mean that we are bound to adhere strictly to the letter, without regard to 'the evident meaning and spirit of the instrument. The fundamental law of the State is to be construed in no such narrow and, illiberal spirit. On the contrary it is to be construed according to its intention, where 9 118 CINCINNATI SOUTHERN RAILWAY. that is clear ; and that which clearly falls within the rea- eon of the prohibition may be regarded as embodied in it. Still it is very clear that we have no power to amend the Constitution, under the color of construction, by in- terpolating provisions not suggested by the language of any part of it. We can not supply all omissions, which we may believe have arisen from inadvertence on the part of the constitutional convention. Recurring, then, to the language of this section, it is quite evident that it was not intended to prohibit the construction of railroads, nor indeed to prohibit any species of public improvements. The section contains no direct reference to railroads, nor to any other special classes of improvements cr enter- prises. Its inhibitions are directed only against a particu- lar manner or means by which, under the Constitution of 1802, many public improvements had been accomplished. And its language is sufficiently comprehensive to embrace every 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- rated 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 bv taxes assessed upon the property of their constituent bodies. Many of these enterprises proved unprofit.ible and the stock became valueless. Some of them wholly failed. Heavy taxation followed to meet and discharge the interest and principal of the bonds thus issued. Towns CINCINNATI StiUTHERN RAILWAY. 119 and townships were induced to attempt repudiation of their contracts. And as the I'ecords 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 calamatous results. Unier such circumstances this section was made a part of the State Constitution.^ It may be well again to recur to its language : " 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, corpo- ration or association whatever; or to raise money for, or loan its credit to or in aid of any such company, corpo- ration or association," The mischief which this section interdicts is a business partnership between a municipality or subdivision of the State, and individuals or private corporations or associa- tions. It forbids the union of public and private capital wr 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 120 CINCINNATI SOCTHERN RAILWAY. 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. 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 making 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 prohibitis the State from ■■contradivg any debt for purposes of in'eriial impi'O'/ement. This implies that the State may make all such im- provements as will not involve the creation of a debt. We find ourselves unable, therefore, upon any esiablished rules of construction to find in this section the inhibition -claimed by council to arise by implication. ClNOlNKATl SOUTHERN RAILWAY. 121 It may be, and indeed, I think it very probable, that had the framers of the Constitution contemplated the possi- bility of the grant to a municipal corporation of such powers as the acts under consideration confer they would have interposed further limitations upon legislative dis' cretion. But omissions of such a grave character surely can not be supplied according to the conjectures of a court. It is agreed, 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 authoiizing the city to raise money ibr and loan its credit to this corpo- ration, to enable it to construct a railroad. We think it unnecessary to inquire whether the trus- tees provided for by the act are in any secse a corpora- tion or not. For if they are an association or organiza- tion of any kind whatever, having a property interest in the road distinct from that of the city, then the objection is well taken. The inhibitions of this section are not directed against names. But it is clear that these 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 fad, as well as in name, but trustees, and the sole lenefidary of the trust is the city of Cincinnati. They are authorized to act only in the name and on be- half 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 122 CINCtSNATI SOUTHERN EilLWAY. 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 grounds of objection to the validity of this act than those which we h ive considered, and are of opinion that the judgment of the court below must be affirmed. J0DGM.NT OF THE SUPERIOR COURT AFFI MED. s