The opinion
O’Brien, J.
(dissenting). I cannot concur in the judgment in this case. It opens the door for a revival of all the abuses that grew out of the exercise by municipalities of the power to issue bonds and to use their credit and funds for the construction of railroads. The provisions of the Constitution restricting such power were the result of long and disastrous, experience as to the wisdom of permitting the taxing power'
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to be exercised in cities and towns for such purposes. It was plainly the intention of the constitutional amendment to suppress the evil hy a radical destruction of the power from which it emanated. The power then resided in the legislature, and hy its constant exercise towns and cities were empowered to issue bonds and to contract debts in aid of railroads, always under the pressure of some real or supposed necessity. There never was much difficulty in obtaining the consent of a majority of the taxpayers in writing, and in the most formal manner. They were stimulated hy the prospects of gain to their property, or advantage of some kind to themselves. But, in the end, both the approving majority and the protesting minority found themselves loaded with debt, in many cases without any railroad having been constructed, and, in most cases, without the benefits to their property that had been anticipated. The framers of the constitutional amendment, and the people adopting it hy their votes, plainly intended to strike at the root of the evil. The language that they inserted in the Constitution for that purpose is broad and comprehensive, and should he construed by the courts in the spirit in which it was framed, and with reference to the public policy in view.
“
Ho county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes.” (Const, art. 8, § 10.)
If I understand the prevailing opinion, this court is now to sanction the principle that, notwithstanding these restrictions, a city may still issue its bonds for the purpose of constructing a railroad within its limits, and may then lease the road for a period of years, or in perpetuity, to a private corporation upon such terms as the legislature may prescribe. If this can be done in one city or county, of course it may be done in every other city, town or county, since the Constitution does not in
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this respect make any discrimination. The circumstance that the municipality using its funds or credit for such a purpose retains the nominal title to the road is supposed in some way to obviate the objection. I am unable to see liow it does. The lessee in perpetuity would be substantially the owner. If the legislature has the power to authorize such a lease to a private corporation for a rental equal to the interest on the bonds issued for construction, it may authorize a lease for much less, or for a nominal rental, and if it may authorize a lease for fifty years, it may also authorize a lease in perpetuity. If this he the true interpretation of the Constitution, then practically nothing- has been accomplished by the restrictions upon, the power of cities and towns to issue bonds, or use their credit in aid of the construction of railroads. The decision in this case suggests a method by which they may do it still. I cannot believe that the limitations of the Constitution ivere intended to have only such a narrow and feeble operation. It is broad enough in its letter and spirit to condemn the legislation now under consideration. Much more might be said against the power of the legislature to pass the series of statutes involved in this case, but an extended discussion would subserve no useful purpose.
It seems to me that the decision practically nullifies the constitutional restrictions and defeats the jnu-pose that was plainly in view in their enactment by the people. It is true that the act in question provides for a fifty-year lease only, but if the matter is within the power of the legislature at all it may make the period as long as, in its judgment, may be proper, or in perpetuity.
Andrews, Ch. J., Gray, Bartlett and Martin, JJ., concur with Haight, J., for affirmance; Vann, J., concurs with O’Brien, J., for reversal.
Judgment affirmed.