Fellows v. Walker

• Decision Date: 07 June 1889
• Citation: 39 F. 651
• Parties: FELLOWS et al. v. WALKER, Auditor, et al.
• Court: U.S. District Court — Northern District of Ohio

39 F. 651

FELLOWS et al. v. WALKER, Auditor, et al.

United States Circuit Court, N.D. Ohio, Western Division.

June 7, 1889

E. D Potter, Jr., Doyle, Scott & Lewis, and Stevenson Burke, for complainants.

W. H A. Read, City Sol., G. W. Kinney, and Brown & Geddes, for defendants.

JACKSON J.

This is an action brought by Fellows and others, non-resident tax-payers of the city of Toledo, against the city of Toledo and its officers, to enjoin the defendants from executing and selling $75,000 of bonds issued by the city for the purpose of securing natural gas and piping the same to the city of Toledo, upon the ground that the act of the legislature authorizing such issue is unconstitutional. Application is made for a preliminary injunction.

Defendants urge that the bill fails to show necessary jurisdictional facts, in that it does not appear that any one of the complainants is interested to the extent of $2,000, and that different tax-payers cannot unite their several interests for the purpose of making up the jurisdictional amount. While the court is of the opinion that the real subject-matter of controversy is the validity of the obligation incurred by the entire issue of $75,000 of bonds rather than the separate interest of each complainant therein, still the question is one of such doubt that the court does not now decide it, and prefers to express no opinion therein at this time. The application must therefore be decided upon the bill, answer and affidavits. It should be said at the outset that the court has nothing whatever to do with the questions of the policy of such legislation or the manner of carrying out the same, or the benefits to be derived by the corporation therefrom. These are questions for legislative discretion and determination. The question for this court to determine is simply whether the act in controversy was a proper exercise of constitutional legislative power. The constitutionality of the act is denied because it is said to be a special act conferring corporate powers; that it is special because the city of Toledo is the only city of the third grade of the first class in the state of Ohio, and the only city to which this act is or can be applicable. But this objection cannot be sustained. It is well settled by authority in Ohio that the classification of municipal corporations is valid, and that legislation which is applicable to a class is general, although there may be at that time but one city in that class. The act in question is equally applicable to all cities of the third grade of the first class, whether now belonging thereto or hereafter coming into that category. The answer denies the averment of the bill that Toledo is the only city of the state to which the act is or can be applicable, and it does not appear that it is the only city that is or can be a city of the third grade of the first class.

It is next insisted that the act is made to take effect upon the approval of some authority other than the general assembly. But the language of the act is otherwise. As a matter of fact, it is made to take effect and be in force from and after its passage. Moreover, it is an enabling act designed for those cities, and takes effect from the date of its passage. It stands upon the same basis precisely as general acts authorizing the creation of corporations.

The next and the main ground upon which the bill rests and the injunction is sought is that the supplying of municipal corporations and their citizens with natural gas is not a public purpose or use for which the taxing power which is necessarily involved can be properly exercised. It is urged that while the act authorizes the city to procure natural gas for its own use and for use in public buildings, etc., (which complainants concede would be a public use,) the main object and primary purpose of the act is to enable the city to supply its individual inhabitants with fuel for private use and consumption at a cheaper rate than they can obtain it from...