The plaintiff as a taxpayer seeks to enjoin the defendants from carrying out the provisions of a contract, to which they and the state of Ohio are parties, providing for the elimination of certain grade crossings at certain highways.
It is conceded that the parties have authority to contract for the elimination of grade crossings, but it is contended that this particular contract contains provisions that are beyond the contractual powers of the state and municipality. The major portion of the money with which to pay the cost of these crossing eliminations is to be obtained from the United States Government. The provisions which are assailed are those incorporated into the contract to induce the grant of the money by it.
These provisions which are assailed consist of the Emergency Relief Appropriation Act, passed by Congress in 1936 and Sections 1228, 1228-1 and 17-4, General Code, passed by the Ohio Legislature, which, if law, are a part of the contract.
It is also contended that the contract provides for the lending of credit of the state to the city and the credit of the city to The New York Central Railroad Company, contrary to Sections 5 and6 of Article VIII of the Ohio Constitution, and is, therefore, null and void.
Judge Gorman, who heard this case in the Common Pleas Court, handed down an exhaustive opinion in *Page 53 which the statutes involved and the decisions bearing upon the issues were cited, pertinent parts quoted and commented upon. As this court reaches the same conclusion, I will only state briefly the reasons upon which I concur.
(1) This is not an attempt by the National Government to regulate the conduct of individuals within the territorial limits of a state without the consent of the state, as was the case inUnited States v. Butler et al., Recrs., 297 U.S. 1,80 L. Ed., 477, 56 Sup. Ct., 12, in which the Agricultural Adjustment Act was held to invade the reserved rights of the states, and, therefore, to be unconstitutional.
(2) The case presents a cooperative effort between the state and nation well within the principle of the cases of StewardMachine Co. v. Davis, ___ U.S., ___, 81 L. Ed., 779,57 Sup Ct., 883, and Carmichael v. Southern Coal Coke Co., ___ U.S., ___,81 L. Ed., 811, 825, 57 Sup. Ct., 868, in which the Social Security and Unemployment Insurance Acts of Congress and Alabama were held to be valid cooperative action of the nation and state.
(3) We are not presented with any problem relating to the raising of revenue. The Federal Emergency Relief Appropriation Act deals with public money already in the United States Treasury, subject to be spent at the will of Congress for any federal purpose. It is primarily an approriation resolution and only incidentally, and in a minor sense, a law.
(4) The Federal Emergency Relief Appropriation Act finds its justification in Clause 1, Section 8 of Article I of the United States Constitution, giving to Congress power to levy and collect taxes to pay the debts and provide for the common defense and general welfare of the United States. The only part of that power that is in issue here is the power to spend.
In United States v. Butler, supra, the court held that *Page 54 this provision of the Constitution was a grant of a separate and distinct substantive power to tax and spend for the general welfare of the United States. The majority of the court in that case held that the act was not a true taxing measure for public purposes, but was an expropriation of money of one class for the benefit of another, contrary to the due process clause of theFifth Amendment; and, furthermore, assuming the validity of the assessment as a tax, the purpose for which it was to be spent was not the general welfare of the United States.
That unemployment so widespread as to affect every community of the United States is a matter affecting the general welfare of the United States seems to be manifest. The spending of money to relieve such unemployment, caused in part, perhaps, by the Federal Government itself, is an exercise of the power to spend tax money for the general welfare of the United States, within the meaning of Section 8 of Article I. Certainly, the court would not be justified in saying it was not. In Steward Machine Co. v.Davis, supra, it is said:
"It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare."
(5) The Federal Emergency Relief Appropriation Act sets forth the purpose for which the money is to be spent. The legislative function is complete. It states the standard or "intelligible principle" to which the executive department must conform and leaves to it only the power to fill in the administrative details. There is no abdication of legislative power in favor of the executive, as was the case in Schechter Poultry Co. v. UnitedStates, 295 U.S. 495, 79 L. Ed., 1570, 55 Sup. Ct., 837.
(6) The Ohio Acts (Sections 17-4, 1228, and 1228-1, *Page 55 General Code) are enabling acts passed to authorize the state officials to enter into this cooperative effort to rectify a condition that concerned Ohio, because it was within its borders, and concerned the general welfare of the United States because it spread beyond the borders of Ohio to the entire width and length of the nation. It was a public governmental purpose as to each. Each owed a duty to do what was within its power to relieve the distress resulting from unemployment.
In entering into this cooperative enterprise to relieve unemployment the two governments occupied the position of sovereign states. They pledged their good faith as sovereign nations do in international affairs. Neither by express stipulation nor by implication did either surrender any of its sovereignty.
Giving to the administrative officers of the United States the right to fix wages, hours of service and working conditions upon a construction, paid for with money furnished by the United States, is no more a surrender of sovereignty than a state employing a private independent contractor to accomplish a stated result, without legislating as to the wages and hours of service of his employees. In the absence of legislation, the contractor could fix the wages and hours of service. The state could take this power away by legislating on the subject, or, if legislation existed at the time the contract was made, it would become a part of the contract. But so would that other law that the state cannot irrevocably barter away its police power, which includes the power to fix wages and hours of service when necessary for the public welfare. This power could be exercised by repealing or amending laws in force when contracts had been made. The sovereign power of the state to legislate on the subject of safety, health, morals, prosperity and general welfare would be no more limited in the one case than in *Page 56 the other. Exercising the power in this case might have the effect of causing the United States Government to refuse to contribute or continue to contribute to the enterprise, but it would not affect the validity of the legislation.
(7) As I view the situation, it is another instance of the familiar "Grants in Aid" with condition imposed. They have been made almost from the founding of the nation.
(8) I am also of the opinion that a taxpayer has not a sufficient interest in tax money in the United States Treasury to serve as a predicate for an action to enjoin its expenditure. As the taxpayer has no title his action presents a moot issue. This was decided in Massachusetts v. Mellon, 262 U.S. 447,67 L. Ed., 1078, 43 Sup. Ct., 597. No legislature of a state can affect the title to the public money in the United States Treasury by any form of legislation.
This, however, would not prevent a taxpayer exercising his statutory right to enjoin the city from exceeding the authority conferred upon it by the state Constitution and legislative enactments. And it is clear that no authority is conferred upon a municipality to enter into an illegal transaction, contractual or otherwise. Incorporating a void provision in a contract falls far short of rendering unlawful all the provisions of a contract. The right to injunctive relief could not extend to the lawful provisions of the contract. By this observation, I do not mean to imply that there is any void provision in the contract under consideration.
(9) As the city and state have authority to contract for the elimination of grade crossings, if certain provisions of the contract should be beyond their power (which, as already stated, I do not intimate), that would not render the entire contract illegal. 19 Ruling Case Law, 1065, Section 353; 6 Ruling Case Law, *Page 57 814, Section 214; 9 Ohio Jurisprudence, 389, Section 166. Only the ultra vires provisions would fall. That would not justify enjoining the performance of the intra vires provisions of the contract.
The power of the city and the state is a matter of law of which all must take cognizance. Whether a private person contracting with a state, or political subdivision of it, could refuse to perform, because a part of the contract was ultra vires, we do not consider. No such question is presented. If we assume that this arrangement between the state and nation occupies the same juristic position as a contract between private individuals, it would be sufficient to say that the person injuriously affected by the collapse of the ultra vires provisions is not complaining. However, we do not believe that when two sovereigns join to perform a common governmental function, such a concord can be measured by the principles of private contract. They pledge their good faith. The language is not appropriate for the expression of a legal duty. The obligation thereby created is imperfect. There is no superior authority to which appeal may be made for assistance in the enforcement of the obligation, as may be done by private persons contracting with one another.
For these reasons I concur in the judgment denying the injunction.