pounded by all the departments of the government and administered in its courts of justice, its validity and obligation can not be impaired by any subsequent legislation, or decision of its courts altering the construction of the law. The same principle applies when there is a change of judicial decision as to the constitutional power of the legislature to enact the law. To this rule we adhere. It is the law of this court. It rests upon the plainest principles of justice. To hold otherwise would be as unjust as to hold that rights acquired under statutes may be lost by repeal. The rule embraces this case." I Wall. 206. And so it does the case now in hand.

I, therefore, hold the act of April 4, 1870, authorizing the defendant to build its road upon the line indicated in the plat filed with the commissioner of the general land office, and to accept the congressional grant, was a valid act, and at the time of its passage conferred. the rights and powers indicated upon the Southern Pacific Railroad Company.

Judgment for plaintiff.

Note. Supporting this view see: 1880, Attorney-General v. North Am. L. Ins. Co., 82 N. Y. 172; 1881, Central Ag. & Mech. Assn. v. Ala. G. L. Ins. Co., 70 Ala. 120; 1884, Attorney-General v. Joy, 55 Mich. 94; 1887, Wiley v. Bluffton, 111 Ind. 152; 1891, St. Joseph and Iowa R. Co. v. Shambaugh, 106 Mo. 557; 1898. Indianapolis v. Navin, 151 Ind. 139, 47 N. E. Rep. 525; 1901, Detroit Citizens' Ry. Co. v. Detroit, 125 Mich. 673, 84 Am. St. R. 589.

Sec. 73. (3) Conferring corporate powers.1

"The legislature shall pass no special or local act conferring corporate powers.

THE STATE OF OHIO, Ex REL. ATTORNEY-GENERAL, v. THE CITY OF CINCINNATI.2

1870. IN THE SUPREME COURT OF OHIO.

18-37.

20 Ohio State Reports,

BRINKERHOFF, C. J. [This is an information in the nature of a writ of quo warranto, filed in this court by the attorney-general for the purpose of testing and contesting the validity of certain extensive annexations of outlying territory and incorporated villages claimed by the city to have been made to it under the authority and in accordance with the provisions of the act of the 16th of April, 1870, to prescribe the corporate limits of Cincinnati. 67 Ohio L. 141.

The city, by plea, set out the statute, and relied upon it for her authority in annexing the territory and exercising her jurisdiction over it. The state filed a reply, to which the city demurred, and thereby raised the legal sufficiency of all the preceding pleadings, the main 1 See also State v. Dawson, infra, p. 412, on 413.

* Statement of facts abridged. Arguments and part of opinion omitted.

point being the constitutionality of the act. The constitution, article

xiii, provides:

"Sec. 1. The general assembly shall pass no special act, conferring corporate powers.

"Sec. 2. Corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed."

"Sec. 6. The general assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit so as to prevent the abuse of such power."] In looking at these provisions of our constitution—and indeed, in looking over all the provisions of our constitution from beginning to end-it will be seen that they make no distinction as respects legislative power in the creation of them, and in the conferring of powers upon them between any classes of corporations proper. They make no distinction between private corporations such as railroad, manufacturing or mining corporations or the like and public municipal corporations, such as cities and villages. On the contrary, and as if to preclude the hypothesis of any such distinction, the sixth section of the thirteenth article assumes the imperative form of expression and declares that "the general assembly shall provide for the organization of cities and incorporated villages by general laws." In respect to corporations proper, whether private or municipal, the provisions of section 1, article xiii, are all comprehensive. "The general assembly shall pass no special act conferring corporate powers.' These provisions of the constitution are as imperative, as comprehensive and emphatic as if the people, speaking through their constitution, had said: "The bane and curse of our legislation, as it existed under the latitudinarian provisions of the constitution of 1802, is in future utterly and absolutely prohibited. Henceforth, the laws conferring corporate powers shall be general, affecting or liable to affect the interests of the constituency of every individual member of the general assembly and so by powerful motives calling his attention to the effect of proposed enactments upon his own immediate constituency as well as upon the people of other localities." This is the policy and intent of the provisions of the constitution above quoted, and they are as clearly apparent as if they had been expressed in so many words. No one who has read the proceedings and debates of the convention which presented to the people of Ohio the framework of the constitution which the latter by their votes established and adopted, or is old enough to remember the apprehensions of evil consequences with which the conferring of corporate powers by special acts were regarded, can fail to see that it was one of the ends and aims of the constitutional convention and of the people who adopted the framework of a constitution which that convention presented for their adoption or rejection, to cut up by the roots at once and forever, all capacity of the general assembly to confer by special act any powers whatsoever upon any corporate body whatsoever.

At one time, indeed, an attempt was made to escape the effect of

these constitutional restrictions on legislative power, on the theory that the phrase "conferring corporate powers" meant simply the conferring of corporate existence-the creation of a corporation, so that if corporations were only created under general laws, the legislature might then proceed by special acts to confer upon existing corporations as many and as varied powers as it pleased. Such a construction would leave a door wide open for the re-introduction of all the evils of special legislation which these restrictions and mandatory provisions of the constitution were obviously designed to guard against and prevent. Accordingly such a construction was distinctly repudiated by this court in the carefully considered case of Atkinson v. The Marietta, etc., R. Co., 15 Ohio St. 21. In that case Ranney, J., delivering the opinion of the court, and referring to the first and second sections of the thirteenth article of the constitution above quoted, says: "These provisions of the constitution are too explicit to admit of the least doubt that they were intended to disable the general assembly from either creating corporations or conferring upon them corporate powers by special acts of legislation. It was intended to correct an existing evil, and to inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power, of making such law applicable to all parts of the state, and thereby securing the vigilance and attention of its whole representation, and finally, of making all judicial constructions of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class. We must give such a construction to the constitution as will preserve its leading objects intact." I think the following propositions to be impregnable:

1. The general assembly can not, by a special act, create a corporation.

2. It can not, by special act, confer additional powers upon corporations already existing.

3. In the purview of these propositions and of the constitutional provisions on which they are based, there is no distinction between private and municipal corporations.

Now for the application of these propositions to the case before us. The act of the general assembly under which the corporate authorities of Cincinnati proceeded to make the annexations of outside territory which they claimed to have made and consummated, is "a special act." It does not purport to be otherwise. Its language is: "Be it enacted by the general assembly of the state of Ohio, that the corporate limits of the city of Cincinnati shall be as follows: Commencing at the mouth of the Little Miami river, thence northeastwardly," etc. And now but one question remains. Does this special act assume to confer upon the corporation of the city of Cincinnati additional corporate powers-powers which, as a municipal corporation, she did not previously possess? The answer is plain. It does assume to confer, on certain prescribed conditions, the power of municipal government, the power of police regulation, the power of judicial jurisdiction, and the powers of assessment and taxation, over

a number of outlying suburban incorporated villages, and of other territory hitherto subjected to no jurisdiction except such as belongs to the township, county and state organizations.

A majority of the court are of opinion that the act is clearly in contravention of the restrictive provisions of the constitution, and, therefore, of no binding force and validity.

And here I might properly stop; yet, for the purpose of excluding a possible conclusion, I will, on my own individual responsibility, say one word more. It may be asked, Do we intend to include township and county organizations in the category with municipal and other corporations proper? The question is not involved in the present case, and so it is not properly before us; but, if it were, I apprehend the answer to it would readily be found in the case of the Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109, where it is held that a county is not properly a corporation, but that "it is at most but a local organization, which, for purposes of civil administration, is invested with a few functions characteristic of a corporate existence."

Judgment of ouster.

SCOTT, WELCH and DAY, JJ., concurred.

WHITE, J., did not concur.

Note. See, 1878, State v. Maloy (City of Council Grove), 20 Kan. 619; 1880, School District v. Insurance Co., 103 U. S. 707; McGregor v. Baylies, 19 Iowa 43.

Sec. 74. (4) Title and special privileges.

"The legislature shall pass no bill embracing more than one subject, and that shall be expressed in the title; nor shall any private or local bill be passed granting to any corporation, association or individual any special or exclusive right, privilege, immunity or franchise whatsoever.

JOHN JACOB ASTOR ET AL., RESPONDENTS, V. THE ARCADE RAILWAY COMPANY, APPELLANT.2

1889. IN THE COURT OF APPEALS OF NEW YORK.

York Reports 93-115.

113 New

Appeal from an interlocutory judgment of the general term of the supreme court in the first judicial department, entered upon an order made May 18, 1888, which reversed a judgment of special term sustaining a demurrer to the complaint herein and dismissing said complaint, and which overruled said demurrer. (Reported below, 48 Hun 562.)

This action was brought by plaintiffs, who are the owners of the 1 Supra, p. 214.

2 Arguments omitted.

property fronting upon Broadway and Madison avenue, in the city of New York, to restrain the construction by defendant of a railway under the surface of said streets, which the complaint alleged defendant was about to attempt to do, claiming authority under the act (ch. 312, Laws of 1886), which act the complaint alleged to be unconstitutional and void.

EARL, J. The sole question for our determination is whether the defendant has legal authority to construct and operate a railway under Broadway and Madison avenue in the city of New York. The defendant traces its corporate existence to the act, chapter 842 of the laws of 1868, entitled "An act to provide for the transmission of letters, packages and merchandise in the cities of New York and Brooklyn and across the North and East rivers by means of pneumatic tubes, to be constructed beneath the surface of the streets and public places in said cities and under the waters of said rivers." The first section of the act authorized and empowered Alfred E. Beach and other persons named, and their assigns, "to lay down, construct and maintain one or more pneumatic tubes in the soil beneath the surface, squares, avenues and public places, in the cities of New York and Brooklyn and under the bed of the waters of the East river between the said cities, and also under the bed of the waters of the North river from the city of New York to the shore of New Jersey, but at such depth as not to interfere with navigation; and to convey letters, parcels, packages, mails, merchandise and property in and through said tubes for compensation, by means of vehicles to be run and operated therein by the pneumatic system of propulsion; and to the end that the public convenience may be promoted in the operation of said vehicles, the said persons and their assigns are also hereby authorized and required to erect upon the sidewalks of the said streets, squares, avenues and public places suitable ornamental lamp-posts, boxes, pillars or receptacles, not exceeding thirty inches in diameter, connected with said pneumatic tubes for the deposit of letters, packages and property to be transmitted therein." And it provided that the tubes should not extend through any vault, nor under any sidewalk fronting on private property, without the consent of the owners of such private property, and compensation to them, which should be ascertained and determined, in case the parties could not agree, in the manner provided in the general railroad act of 1850. Section 2 provided that the pneumatic tubes should be so constructed as to have a mean interior diamter of not exceeding fifty-four inches.

Section 5 authorized the persons named in the act to hold a meeting and determine the terms and conditions upon which the powers, privileges and franchises conferred by the act might be transferred to a corporation to be organized as provided in the next section, and section 6 provided that in case the persons attending the meeting named in the prior section should so determine, they might organize themselves into a corporation in the manner specified in the general manufacturing act of 1848, and the acts amendatory thereof, "for the purpose of constructing and maintaining the pneumatic tubes afore