EXECUTIVE DEPARTMENT,
INDIANAPOLIS, March
14,1867.
Enrolled act of the Senate, No. 41 (here to attached) passed by the General Assembly at the late session thereof, was presented to me on the ninth day of March, 1867, and on the succeeding Monday (March 11th, 1867) the General Assembly adjourned without day.
By the fourteenth section of fifth article of the Constitution, under the circumstances the bill would become a law unless within five days next after the adjournment of the Legislature, I should file the same with my objections thereto, in the office of the Secretary of State. In pursuance of this provision of the Constitution of the State, I now file said bill in the office of the Secretary of State with my objections thereto as the same are hereinafter stated, to the end that the Secretary of State may lay said bill with these objections before the General Assembly at its next session, as required by the Constitution.
The bill is entitled "An Act to authorize incorporated towns and townships to subscribe for, purchase and hold stocks, and make donations to turnpike, plank-road, railroad, railway and slack-water navigation companies, and matters properly connected therewith, and declaring an emergency."
The first section enacts -
"That any incorporated town or township in this State shall have power to subscribe to the stock of any incorporated turnpike, plank-road, railroad, railway or slack-water navigation company within this State, to make donations in money or in bonds of such town or township to aid in the construction of such roads and slack-water navigation, only on a petition of a, majority of the resident freeholders of such town or township. Provided that said donations shall not be payable either in money or bonds until the road in aid of which it is so subscribed or given shall be so far completed as to admit the running of trains between such points as shall have been designated in the petition in case of a railroad or railway, and the passage of wagons in case of other roads : and in case of slack water navigation the passage of boats, and when so far completed it shall be obligators on the trustees of such town or the trustee of such township to contract and do whatever may be necessary to carry into effect the substantial meaning of such petitioners, and the obligations hereby enjoined may be enforced in the courts of this State having competent jurisdiction on the application of any signer of such petition or President of the company in behalf of which such donation or subscription may have been made, at any time after said petition or petitions may have been presented to such trustees or trustee, and for any debts or liabilities incurred in pursuance of the provisions of this act and in carrying out the intentions of the petitioners aforesaid, the trustees of such town and the trustee of such township shall assess and levy an amount of tax sufficient to pay the annual interest with an addition of not less than five cents on the hundred dollars of taxable property in such township which shall be collected as other taxes are collected for town and township purposes, and for successive years thereafter a like tax shall be levied until an amount sufficient to liquidate the debt and interest incurred under the provisions of this act shall be collected,
Provided, the said sum of five cents on the hundred dollars shall create a Sinking Fund for the liquidation of the principal thereof, which fund with all the increase thereof shall be applied to the payment of such debt and to no other purpose.
The foregoing contains a complete recital of the act except the second section, which only declares an emergency, and that the act shall be in force from and after its passage.
page: 5[View Page 5]I respectfully object to this bill because it manifestly attempts to evade a constitutional prohibition against such legislation, and because of its dangerous tendency.
Many years ago, this State, with the concurrence of a majority of the people, engaged in an extended system of internal improvements, which resulted in a stupendous failure, and for a time brought upon the State the odium of failing to meet her obligations contracted to carry out this vast undertaking. Admonished by this sad experience, the convention which framed the present constitution provided in the 5th section of the 10th article, that no laws hall authorize any debt to be contracted on behalf of the State except in the following cases:
"To meet casual deficits in the revenue; to pay the interest on the State debt; to repel invasion ; suppress insurrection, or if hostilities be threatened, provide for the public defense."
Under the salutary influence of this prohibition, the State has now arrived at a period in her history when it may safely be predicted that the debt entailed upon the present generation by the past, for internal improvements, will be entirely liquidated within the next five or six years. The Convention, not satisfied with the prohibition before quoted, inserted in the sixth section of the same article another prohibition, which reads as follows:
"No county shall subscribe for stock in any incorporated company unless the same be paid for at the time of said subscription ; nor shall any county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company; nor shall the General Assembly on behalf of the State, assume the debts of any county, city, town or township, nor of any corporation whatever.
To a mind intent only on ascertaining the spirit and meaning of the constitution, with a view to conform his action to its requirements, these provisions would seen to be sufficient to prohibit all attempts to construct internal improvements on the credit of the public, whether that public consisted of the people of the entire State, or of the people of some small sub-division thereof.
It may be, perhaps, a subject of regret that the courts have held that cities are an exception to the prohibition, and that these municipal corporations may, because they are not expressly prohibited by the constitution, with the permission of the Legislature, embark in building railroads and other public improvements on credit. However this may be, there are many reasons to justify the non-application of the prohibition of the constitution to cities, which are wholly inapplicable to rural communities, such as our civil townships.
Prior to the formation of the Constitution, counties had been authorized to subscribe,and had subscribed to the capital stock of divers railroad companies, and pledged the county credit for the payment of these subscriptions. The inhibition of the Constitution, before cited, was adopted to prevent such practices in the future, and townships were not, in express terms, named in the prohibition, because no such thing as townships engaging in the building of railroads by pledging the township credit for the payment of stock subscriptions had ever occurred, nor was such a possibility dreamed of at that day. Indeed, if townships had been expressly inserted in the prohibition the same ingenuity which now seeks to exempt them from its operation would probably, and with as much reason, have attempted to attain the same end by authorizing school and road districts to pledge their credit to aid in the construction of the railroads of this State. Civil townships are created for purposes wholly foreign to such purposes as aiding in the construction of railroads. They are parts of the county created by the Boards of Commissioners of the respective counties in which they are situated, and their boundaries may be changed by the Commissioners at pleasure.
The township trustee is essentially dependent on the Board of Commissioners in the exercise of the limited authority with which he is vested. He is a mere supervisor of roads and schools for the township, and can not levy the smallest tax for the construction and repair of the roads of his township without the advice and concurrence of the Board of Commissioners of his county. To say that the Board of Commissioners can not pledge the county credits for the payment of stock subscriptions, and yet that the same object may be accomplished by separately pledging the credits of each township in the county, is to disregard the constitution; not to construe it. This bill does not, like the general law incorporating cities, limit the right to subscribe stock to railroads leading to or passing through the city, but it authorizes any township in this State to subscribe to the stock in any railroad in this State, and to make donations in money, or in the bonds of the township, to any railroad within the State. True, a majority of the freeholders must petition for the subscription or donation, but that majority may reside in an incorporated town within a township, and may by their petition mortgage the farms of the rural population of the township, without their consent. If towns and cities desire to engage in railroad enterprises, existing laws furnish them ample opportunity to do so, and no law should take effect permitting them to involve those engaged in rural pur- page: 6[View Page 6] suits in such undertakings. Correct principle, as well as sound policy, requires that on such questions every man should act for himself without being coerced by the petition or vote of his neighbor.
For these reasons, I am reluctantly compelled to interpose these objections to the taking effect of the bill.
CONRAD BAKER.
Lieutenant Governor of Indiana, acting as Governor thereof.
