Statement of the Case.

a decree declaring a certain act of the General Assembly of Ohio giving it permission to do so to be null and void.

The case was determined upon demurrer to the petition, which set forth, substantially, the following facts: On February 4, 1825, the General Assembly of the State passed "an act to provide for the internal improvement of the State of Ohio, by navigable canals," 23 Ohio Stat. 50, among which was the Ohio Canal, extending from the mouth of the Scioto River through the State of Ohio to Lake Erie, and passing through the village of Carroll in the county of Fairfield. On February 8, 1826, the Lancaster Lateral Canal Company was incorporated by act of the General Assembly, 24 Ohio Laws, 71, and authorized to construct and operate a canal "from the town of Lancaster to such point of the Ohio Canal as shall be found most eligible." The village of Carroll was fixed upon as the terminus.

On May 24, 1828, Congress passed an act to aid the State of Ohio in the construction of its canals, 4 Stat. 305, by the fifth section of which act (printed in full in the margin)' Congress granted to the State 500,000 acres of land in that State for this purpose, with a proviso that "the said canals, when completed or used, shall be, and forever remain, public high

1SEC. 5. And be it further enacted, That there be, and hereby is, granted to the State of Ohio five hundred thousand acres of the lands owned by the United States, within the said State, to be selected as hereinafter directed, for the purpose of aiding the State of Ohio in the payment of the debt, or the interest thereon, which has heretofore been, or which may hereafter be, contracted by said State in the construction of the canals within the same, undertaken under the authority of the laws of said State, now in force, or that may hereafter be enacted, for the extensions of canals now making; which land, when selected, shall be disposed of by the legislature of Ohio, for that purpose, and no other: Provided, The said canals, when completed or used, shall be, and forever remain, public highways, for the use of the Government of the United States free from any toll or charge whatever, for any property of the United States, or persons in their service passing along the same: And provided further, That the said canals, already commenced, shall be completed in seven years from the approval of this act, otherwise the State of Ohio shall stand bound to pay over to the United States the amount which any lands sold by her, within that time, may have brought; but the validity of the titles derived from the State by such sales shall not be affected by that failure.

Statement of the Case.

ways, for the use of the Government of the United States, free from any toll or charge whatever, for any property of the United States, or persons in their service passing along the same." The seventh section of the act declared that "this act shall take effect, provided, the legislature of Ohio, at the first session thereof, hereafter to commence, shall express the assent of the State to the several provisions and conditions hereof; and unless such expression of assent shall be made, this act shall be wholly inoperative."

Pursuant to this act, the General Assembly of the State of Ohio on December 22, 1828, passed an act expressly declaring the assent of the State to the provisions and conditions of the act of Congress. Under these acts the State received and took possession of the 500,000 acres of land provided by the grant, and from time to time sold and disposed of the same, and received from the proceeds of such sale somewhat more than $2,200,000.

The Lancaster Lateral Canal Company, incorporated as above stated, proceeded to construct and operate its canal under its charter until December 22, 1838, when it sold and conveyed the same to the State of Ohio, under an authority conferred upon the Board of Public Works, by an act passed March 9, 1838, for the sum of $61,241, which was paid to the company out of the funds realized by the State from the sale of the Congressional land grant. The canal was subsequently, under an act of the legislature, extended from its terminus in Lancaster to the town of Athens, in Athens County, was opened as a continuous line of canal for navigation purposes prior to January 1, 1842, and this extension was also paid for by moneys realized from the sale of the land grant.

The complaint further averred that "ever since the construction of said canal, which is and has been known as the Hocking Canal, the same has been, and still is, a public highway, which has been used for the use of the State of Ohio and the Government of the United States, in pursuance of the several acts of Congress and of the General Assembly of the State of Ohio, herein before set forth."

On April 12, 1894, the Columbus, Hocking Valley and

Statement of the Case.

Athens Railroad Company, defendant herein, was organized and incorporated for the purpose of building a railroad from the city of Columbus through the counties of Franklin, Fairfield, Hocking and Athens to the city of Athens, and on the 18th day of May, 1894, the General Assembly of the State passed an act for the abandonment of the Hocking Canal for canal purposes and for leasing the same to this railroad company. (91 Ohio Stat. 327.) The act is printed in full in the margin.1 The fourth section of the act provided that the rail

1 An act to provide for the abandonment of the Hocking Canal for canal purposes and for leasing the same to the Columbus, Hocking Valley and Athens Railroad Company.

SECTION 1. Be it enacted by the General Assembly of the State of Ohio, That the Hocking Canal, from its junction with the Ohio Canal in the village of Carroll, Fairfield County, to its southeastern terminus in the village of Nelsonville, Athens County, be and the same hereby is abandoned for canal purposes, and the same shall not be used for canal purposes during the pending of the lease provided in the next section of this act.

SEC. 2. There is hereby granted the right, franchise aud privilege of constructing, maintaining and operating over, upon and along the Hocking Canal and property of the State of Ohio adjacent thereto, a railroad with single or double tracks, side tracks, switches, bridges, stations and other structures usual and incidental to the operation of a railroad, to the Columbus, Hocking Valley and Athens Railroad Company, its successors and assigns, for the term of ninety-nine years, renewable forever, for and in consideration of the payment by said company, its successors or assigns, to the treasurer of the State of Ohio on the first day of July, 1894, of the sum of fifty thousand dollars, and on the first day of January, 1900, and of each and every year thereafter, during the term of this lease, of the sum of ten thousand dollars annual rental.

SEC. 3. Said instalment of fifty thousand dollars shall be paid into the state treasury before the construction of said railroad is begun, and for the remaining instalments of rental the State of Ohio shall have a first lien upon said railroad, together with its switches, side tracks, bridges and other structures erected on said property of the State of Ohio, which shall be superior to any and all other liens of every kind upon the same. The said Columbus, Hocking Valley and Athens Railroad Company shall further execute unto the State of Ohio, to be approved by the auditor of state, secretary of state and attorney general, or any two of them, a good and sufficient bond in the sum of one hundred thousand dollars conditioned that said company will faithfully build said railroad in compliance with the condition and terms of this act, and upon failure to build said road within the time herein specified, they shall be liable to the State of Ohio in the full sum of one hundred thousand dollars as stipulated damages. Said bond

Statement of the Case.

road company should have the exclusive right during the term of the lease (ninety-nine years) "to use and occupy the property aforesaid, or so much thereof as may be necessary, for the purpose of constructing, maintaining and operating the railroad thereon. Said company shall not disturb any vested rights or privileges of abutting property holders along said canal, and shall hold the State harmless from all loss or damage resulting to such property holders by reason of the construction and operation of said railroad."

The plaintiff further averred that the defendant was making preparations to build its road upon the line of the canal, and was threatening to take possession of its property without having acquired the rights and interests in the said lands and tenements belonging to the plaintiff, whose lands are located on both sides of the Hocking Canal, about five miles north of the city of Lancaster, in Fairfield County, and without having purchased or acquired by condemnation.or otherwise the right to enter upon said lands and to construct said railroad. That such road will constitute a permanent trespass upon plaintiff's property, and will place large addi

shall be executed and filed with the secretary of state within ten days after the passage of this act.

SEC. 4. In consideration of the payments aforesaid, said railroad company, its successors and assigns, shall have the exclusive right during the term aforesaid to use and occupy the property aforesaid, or so much thereof as may be necessary, for the purpose of constructing, maintaining and operating a railroad thereon. Said company shall not disturb any vested rights or privileges of abutting property holders along said canal, and shall hold the State harmless from all loss or damage resulting to such property holders by reason of the construction and operation of said railroad: Provided, That when said railroad, its successors and assigns, cease to use said canal for railroad purposes, said canal property shall revert to the State for canal purposes.

SEC. 5. This act shail not be construed to prevent the levying and collecting of taxes on said railroad in the same manner as they are levied and collected on other railroad property in this State.

SEC. 6. The work of constructing said railroad shall be commenced within six months after the passage of this act, and the same shall be completed within two years thereafter.

SEC. 7. This act shall take effect and be in force from and after its passage.

Opinion of the Court.

tional burdens upon his lands, which will render the same inconvenient and difficult of access; and great and irreparable injury will be done in the premises unless the defendant be restrained by an order of the court from taking possession of said canal and the said premises of plaintiff and constructing the railroad thereon.

The gist of the complaint lies in the allegation that the act of May 18, 1894, authorizing the abandonment of the canal, conflicts with that clause of the Constitution which provides that "no State shall pass any law impairing the obligation of contracts," and also with several provisions of the constitution of Ohio not necessary to be here enumerated.

A general demurrer was filed to this petition, which was sustained by the court and the petition dismissed. Plaintiff appealed the case to the Circuit Court, which also sustained the demurrer, whereupon plaintiff appealed the case to the Supreme Court of the State, which reversed the judgment of the Circuit Court, and ordered that the railroad company be enjoined from entering upon the lands of the plaintiff until it had condemned and paid for the additional burden of constructing and operating the railroad on the land according to law. 58 Ohio St. 123.

Upon motion of the plaintiff the court certified that, in the rendition of this judgment it became material to determine whether the act of May 18, 1894, was repugnant to the contract clause of the Constitution, and ordered it to be further certified that the court adjudged that it was not in violation of or repugnant to such clause, and that such act was valid and binding upon the plaintiff. Whereupon plaintiff sued out a writ of error from this court.

Mr. J. B. Foraker, Mr. T. E. Powell and Mr. D. J. Ryan for plaintiffs in error.

Mr. D. L. Sleeper, Mr. C. H. Grosvenor and Mr. John J. Stoddart for defendant in error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.