7 W. Va. 501 | W. Va. | 1874
This is a bill of injunction in which the circuit court of the county of Ohio perpetuated the injunction. On the 13th day of February, 1872, the Legislature of this State passed an act entitled, “an act to authorize the city of Wheeling to subscribe to the capital stock of the Wheeling and Lake Erie Railroad Company.” This act provides that the Council of the City of Wheeling is authorized, and empowered, to subscribe, in the name and on behalf of the City, to the capital stock of a Company ’authorized to construct a railroad from a point at or near said City, in the county of Belmont in the state of Ohio, to Toledo in the county of Lucas, Ohio, to an amount not exceeding $300,000, on such terms as they may deem advisable ; and such Council may pay such subscription by issuing the bonds of said City or otherwise, and may provide, by taxation or otherwise, for the redemption of' such bonds, and payment of interest on the same; that before making such subscription, the Council of the City shall cause a vote to be taken upon the question, at the several places of voting in the City, at any general 'or special election, ordered by them for that purpose, notice of which shall be published in each daily newspaper in the City, for fifteen days, at least, before the poll is to be taken, at which election all persons having the right to vote for mayor of said City shall be entitled tO'
On the 15th day of February, 1872, the Legislature passed an act entitled, “an act to incorporate the Wheeling and Ohio Union Railroad Company.” The first section of this act provides that Henry K. List and a number of others, therein named, or any three or more of them, and their associates, successors and assigns, and all who shall become stockholders, when one thous- and shares of the capital stock of the Company shall
The first section of an act of the Legislature passed March 1, 1871, provides that any railroad company that may be incorporated by the laws of the State of Ohio, for the construction of a railroad from the City of Wheeling, or from the western bank of the Ohio river, opposite to said City, northwestwardly through the state of Ohio, in the direction of New Philadelphia and Toledo, or other point on or near Lake Erie, shall have power to extend its road across the Ohio river at Wheeling Island, and to bridge either or both branches of the Ohio river to such point within the City of Wheeling, as it may deem advisable. The second section of this act gives to such railroad company the same powers, privileges and franchises, in this State, for the purpose of constructing, maintaining and operating its road in this State, and erecting and maintaining bridges, &c., as are conferred upon the company by the laws of Ohio, and makes the company, as as far the road is in this State, a West Virginia corporation and subject in the exercise of is powers, &c., and to be governed by the general railroad laws of the State. Acts of 1871, 248.
The ninth section of an act of the legislature of the State of Ohio, entitled, “An act to authorize the consolidation of railroad companies of states adjoining, in certain cases, and authorizing railroad companies of this state to extend their roads into adjoining states,” provides that any railroad company now organized, or which may hereafter be organized, in this state, for the purpose of constructing a railroad to the boundary line of that state, shall be authorized to extend its road into and through any adjoining state under the regulations which may be prescribed by such adjoining state, and the rights, powers and privileges of such company, over such extension, in
The present Constitution of this State was adopted on the 22nd day of August, 1872, and the sixth section of the Schedule thereto, provides, that if the Constitution and Schedule are adopted by the voters, the Constitution and Schedule should be operative and in full force from, and including the fourth Thursday, (the 22nd day) of August, 1872. The eighth section of the tenth article of the Constitution is in these words, viz: “No county, city, school district or municipal corporation, except in cases where such corporations have already authorized their bonds to be issued, shall hereafter be allowed to become indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate, exceeding five per centum on the value of the taxable property therein to be ascertained by the last assessment for state and county taxes, previous to the incurring of such indebtedness ; nor without, at the same time, providing for the collection of a direct annual tax, sufficient to pay, annually, the interest on such debt, and the principal thereof, within, and not exceeding, thirty four years : Provided, that no debt shall be contracted under this section, unless all questions connected with the same, shall have been first submitted to a vote of the people, and have received three fifths of all the votes cast for and against the same.”
On the 30th day of April, 1872, the Council of the City of Wheeling, in pursuance, and by authority of, the said act of the Legislature of 13th of February, 1872, passed an ordinance composed of some five sections, with a preamble, in which it is expressed as the opinion of said Council that a subscription should be made on behalf of the City to the capital stock of the said Wheeling and Lake Erie Railroad Company to the amount of
On the 23rd day of April, 1872, the Council of said City, under and by authority of the said act of the Legislature of the 15th of February, 1872, passed an ordinance of seven sections, with a preamble, in which the Council expressed the opinion that a subscription should be made in the name and on behalf of the City of Wheeling to the capital stock of said Wheeling and Ohio Union Railroad Company to the amount of f300,000, and in due form submitted the same to the sense of the quali- . fied voters of said City, at an election to be held in said City on the 1st day of June, 1872, — the same time as the election before mentioned.
The election was duly held, at the time appointed, and more than three fifths of the qualified voters voted in favor of this subscription also. This was all done, so far as appears, in conformity with the provisions of the last named act.
On the 20th day of January, 1873, the Council oí the
“Said railroad company shall definitely and permanently, locate, and secure, by written contract or otherwise, suitable depot grounds for its eastern terminus within the City of Wheeling, to be approved by the City Council, and shall file with the city clerk a written instrument, under the signature of its president and secretary, and the official seal of the Company, giving the assent of said Railroad Company to this ordinance, and such'additional ordinances as may be hereafter passed to more effectually carry this ordinance into effect, by providing for the issue and redemption of the bonds which may be issued by the City of Wheeling to pay its subscription herein provided for; and especially agreeing, upon the part of said Wheeling and Lake Erie Railroad Company, that it will construct its road into the City of Wheeling and permanently make its eastern terminus, have its depot grounds and buildings thereon within the corporate limits of the said City, east of the east channel of the Ohio River; and that it will erect and maintain within said City, east of the east channel of the Ohio River, suitable buildings for the accommodation of* passengers and freight and engine house or houses, of sufficient capacity to shelter its engines upon the eastern division of its road when not running on the road and machine shops of sufficient capacity at least for the ordinary repairs to its rolling stock on its eastern division.” “The said Wheeling and Lake Erie Railroad Company, in order to aid and secure a proper
On the 20th day of January, 1873, the council of the City passed another ordinance, entitled “An ordinance authorizing and directing a subscription for and on behalf of the City of Wheeling, to the capital stock of the Wheeling and Ohio Union Railroad Company.” By the first section of this ordinance, it was ordained, “that George Adams, Josiah F. Updegraff and Benjamin Fisher, as commissioners in the name and on behalf of the City of Wheeling, subscribe and take three thousand shares, of $100 each, of the capital stock of the Wheeling and Ohio Union Railroad Company, conditioned for payment as therein provided. The second and third sections of this ordinance prescribe the terms and conditions upon which the subscription shall be made. This subscription, this ordinance provides, shall be paid in the bonds of the City, at the par value thereof, and accrued interest thereon, &c., and the bonds shall be payable thirty years after date in the city of New York, with interest payable at the same place, at the rate of seven percent, per annum — payable semi-annually, &c Each of
Under these circumstances and facts, Henry K. List and a large number of other persons owning property in the City of Wheeling, subject to taxation by the corporate authorities thereof, who sue as well on behalf of themselves as all other persons owning property in the City of Wheeling, subject to taxation by the said corporate authorities, thereof, except the defendants named, presented to the judge of the circuit court of the county of Ohio, in which said City is, a petition, prayer and bill, in which is set forth the said two acts of the Legislature of the 13th and 15th of March, 1872, the said ordinance and facts hereinbe-fore stated, and in which it is also alleged and averred, substantially, that the said two acts, although otherwise separate and distinct, are parts of the same scheme or plan of improvement, having in view the construction, maintenance, and working of a continuous line of railway between a depot on the east side of the east channel of the Ohio river, in the City of Wheeling, and Toledo, in the county of Lucas, in the State of Ohio. That the two subscriptions authorized by these several acts are so mutually dependent upon each other, that no authority has been given to make either separately, or rather neither can be made unless the objects of both acts shall be accomplished ; that the city of Wheeling had not before the 22d day of August, 1872, being the fourth Thursday of that month, authorized it bonds to be issued for or on account of the before-mentioned subscriptions, or either of them, or any part -thereof; and that the indebtedness of said City on the said 22d day of August, 1872, amounted to, and still is, not less than $641,000; and that the value of the taxable property within the limits of
At rules on the first Monday in March, 1873, the plaintiffs filed their bill with the order of injunction endorsed thereon in the clerk’s office of the circuit court of Ohio county. George .Baird, Andrew Wilson, John Butterfield, George Forbes, Porter Smith and Jacob Alt-myer, filed their answer to the bill, in which there is a demurrer, and to this answer there was replication. None of the other defendants answered. The defendants who answered admit most of the material allegations of the bill. But they deny the allegation in the bill that said Wheeling and Lake Erie Railroad Company has no authority of law to construct its said railroad into said City of Wheeling and make its eastern terminus as required in the ordinance aforesaid. They deny that the capital stock of the Wheeling and Lake Erie Railroad Company is but $500,000 — as alleged in the bill, and say that the exhibit No. 1 filed by plaintiffs with their bill, is but a copy of the original certificate of incorporation under the general laws of the state of Ohio, defining the powers and regulating railroad companies, thus chartered under them; that under and by virtue of said laws of the state of Ohio the capital stock of said Company has been increased from the amount named in the original certificate to $4,000,000 — which change was made on the 29th day of March, 1872, as|shown by the subsequent certificate and amended charter, an official copy of which is filed with the answer marked A. For the powers of said Company, by virtue of its charter in Ohio, these defendants refer the court to the general corporation laws of that state. As to the powers of said Company to extend
At April rules 1873 the cause seems to have been set for hearing, and ata circuit court held for the said county of Ohio on the 7th day of May, 1873 the cause came on, by' consent, to be heard on the bill, exhibits filed therewith, the summons and return, the former proceedings and orders therein, the answer of defendants Baird, Wilson, Butterfield, Forbes, Smith and Altmyer, the exhibits filed therewith, and replication to the answer, and the court adjudged, ordered and decreed that the defendants and each of them, be and they are, hereby, perpetually enjoined and restrained from contracting the debts and issuing the bonds in the bill of complaint mentioned, or any or either of them, or any part thereof, and that the plaintiffs recover their costs in this behalf expended, from the defendants.
The summons in the cause seems to have been executed and so returned to the clerk’s office at March rules when the bill was filed. From the record there might be some question as to whether this cause was so matured, at its final hearing, as to authorize the final decree if it were otherwise correct; or as to how it was heard. But as the parties seem to desire a decision of the cause upon its merits, I will consider it as though it was heard upon the bill and exhibits, the answer and exhibits therewith filed and replication thereto, bill taken for confessed as to all the defendants who did not answer, and by consent. This I think is authorized by the time at which the bill was filed and the right of the court below to correct the proceeding, had at rules, in order to hear the same and make final decree therein. A critF cal examination of the record shows that at the hearing the bill might have been taken, for confessed as to all the defendants, except those who answered ; but I do not deem it materia] to stop to discuss this question, as it can make
The first question to be considered in this case is what is the true meaning and intent of the eighth section of tenth article of the Constitution ? Does it operate so as to affect, invalidate, or repeal or modify the said acts of the Legislature of the 13th and 15th day of February, 1872, before cited, or any part thereof? Or is it simply addressed, not to past legislation, but to the legislature created by the Constitution ? I have already quoted at large the said eighth section of the tenth article of the Constitution. “The object of construction, as applied to a written constitution is, to give effect to the intent of the people in adopting it.” It is a rule of construction that the whole constitution is to be examined, with a view of arriving at the true intention of each part: This is because the instrument is adopted by the voters as a whole, and an article or section standing by itself, which might seem of doubtful import, may yet be made plain, by comparison with other clauses of the instrument.” “A constitution should operate prospectively only, unless the words employed show a clear intention that it should . have a retrospective effect. And the same rule applies to statutes.” Cooley’s Con. Lim. 62. The administration of public justice is referred to the courts. To perform this duty, the first requisite is to ascertain the facts, and the next to determine the law that is applicable. The constitution is the fundamental law of the state, in opposition to which any other law must be inoperative and void. If, therefore, such other law seems to be applicable to the facts, but on comparison with the fundamental law it is found to be in conflict, the court in declaring what the law of the case is, must necessarily determine its invalidity, and thereby, in effect, annul it. It was admitted in argument that.the said acts of the 13th and 15th of February, 1872, so far as any part thereof apjdies to the City, were not in violation of the Constitution of 1863, which was in force at their passage and that said acts
It cannot be ascertained from the face of the acts of the Legislature in question, whether they are in conflict with the eighth section of the tenth article of the Constitution or not, except that they do not contain the constitutional limit as to amount of debt, the provision for payment of interest and principal, &c., in thirty-four years; or whether the authority given in said acts or either of them, to the City of Wheeling, or her Council, to subscribe for, and on her behalf, to, or for, the stock of said Railroad Companies, in said acts, or either of them, mentioned, and thereby create a debt or debts to the amount of three or six hundred thousand dollars, or any greater or less sum, is prohibited by said section and article, except as aforesaid. This depends, upon whether said section eight of the tenth article operates as a prohibition upon the City upon the value of the taxable property within the City at the last assessment, at the time of the subscriptions and issuing of the bonds of the City were directed or authorized by the Council to be made, and intended to be made, and upon the then existing debt of the City.
It is admitted, by the answer in the cause, that if the subscriptions were made, or either of them, and the bonds of the City issued to the amount of either sub
The section and article of the Constitution under consideration was not intended to, and does not in anywise, interfere with or prevent the levying, collecting and expenditure of taxes annually, by authority of law,' by the proper, legal authorities of the counties, cities, &c., for needful and proper purposes of such counties, cities, &c., and to do and cause to be done whatever is necessary for that purpose, including the making and causing to be made, contracts touching the disbursement of the taxes levied and collected annually and the like: And all this without a vote being taken under said eighth section of said tenth article of the Constitution. Sections seven and nine, ai’ticle eighth section twenty-eight, article twelve. It was intended to prevent the county authorities, city auT thorities &c., respectively, from creating debts against the counties, cities, &c, respectively without the assent of three-fifths of the voters of the county or city, &c., voting upon the question, as to whether the debt should be created, and then not exceeding the limit prescribed in the section. The evident object of the section was to prevent a growing evil of the day, viz: The creation of large debts, the unnecessary and wasteful, as well as fraudulent, expenditure of the substance and earnings of the people and unnecessary and oppressive taxation. Whether the section will accomplish the object or not remains-to be seen by experience. It is to be hoped it will.
It has been suggested in argument that the said eighth section of the tenth article of the Constitution applied to this case interferes with vested rights or impairs the obligation of contracts. The case of Aspinwall v. The
Under the averments of the bill and the ordinances of the Council filed therewith I think it was not error to unite both subscriptions in the bill. The jurisdiction of equity in such cases as this seems to be established by a number of judicial decisions. When I first examined the final decree in this cause perpetuating the injunction, it struck me that by the terms employed, viz: “That the defendants and each of them be, and they are, hereby enjoined and restrained from contracting the debts and issuing the bonds in the bill of complaint mentioned, or any or either of them, or any part thereof,” it was too broad; upon careful examination, however, I am satisfied that the decree should be con
There were some other questions made in this cause which, under the view I have taken, are immaterial and unnecessary now to determine.
Construing said final decree and its effect, as above stated, and for the reasons above stated, the decree of the circuit court of the county of Ohio perpetuating the injunction awarded in the cause, which was rendered on the 7th day of May, 1873, must be affirmed with costs to the’ appellees and $30 damages.
Decree Affirmed.