dissenting :
I think a fair construction of sections 8, 9 and 10 leads to the conclusion that it is essential to the authority to issue bonds that the people should vote upon a proposition, not only to make the subscription or issue bonds, but to levy a tax. I think it essential to the power that the submission to the voters should, in some form, present directly to the voters the question as to levying a tax. It is said this was impliedly done by submitting the question of making the donation in bonds. This is not enough. It seems to me to over-ride and abolish a part of the statute or charter conferring the supposed power.
When stripped of words not affecting this question, the words of the charter are as follows:
“ Sec. 8. The several townships are hereby authorized to raise money to be levied upon all the real and personal property in the said several * * * townships, and to subscribe the same to the stock of said corporation, for the purpose of aiding in the construction and completion of said road; and the said several townships are further authorized to issue bonds, &c.; Provided, that no subscription shall be made, or no tax shall be levied, until the same shall be voted for, as hereinafter provided.
“ Sec. 9. Whenever 25 voters of any such township shall make a written application to the clerk thereof, requiring an election to determine whether such subscription shall be made and such tax levied, specifying in such application the amount, such clerk shall file such application and give notice for an election to be held, etc.
“ Sec. 10. If the majority at such election shall be in favor of such subscription and tax for the payment thereof, then such township shall levy such tax and subscribe to such corporation the amount thereof, to be determined or voted for at any such election, and shall issue to said corporation bonds for such amount, payable not less than one year nor more than ten years.
“ Sec. 19. The several townships are empowered to make donations and 4o issue bonds for the same, in the manner hereinbefore provided, to said railroad.”
These enacting words contain all the legislative authority for the making the supposed bonds. As to donations, we look first to section 19, which provides, that such townships “ are empowered to make donations and to issue bonds for the same, to this railroad company, in the manner hereinbefore provided.” We find nothing in the former part of the act in relation to donations; hence, strictly and literally, there is no power (which can lawfully be exercised) expressly given to make donations; for the words granting the power expressly limit its exercise to “ the manner provided,” and if no manner be provided the power can not be exercised. By necessary implication we construe these words to have reference to the manner of exercising like powers in the act in relation to subscription to the stock. I therefore see no propriety in the suggestion that the limitations on the exercise of the power are less “express” as to donations than they are as to subscriptions. The words of the statute give no sanction to the suggestion, and it can not be supposed that the legislature intended that the saféguards against improvident donations should be less than those provided against the making of improvident subscriptions. I think donations and subscriptions are authorized to be made upon the same conditions, and these conditions are express as to both, otherwise no lawful donation can be made.
I agree with my brethren, that taking sections 8, 9 and 10 together, provide only for subscriptions payable in the first instance in bonds, and to be ultimately discharged by the levy of a tax for that purpose.
Keeping this thought in view, when we read again the statute to find the conditions on which the power is alone given, we find that the making the subscription and the imposing the tax are treated, all through the act, as two independent and distinct things. Power is given, upon certain conditions, in section 8, “ to raise money to be levied ” and “ to subscribe the same.” This indicates that the amount to be levied must be fixed before any subscription shall be made. The amount of the subscription is limited, in terms, in that section, to “the same,”—that is, to the amount “to be levied.” In the limitation upon this power in the last clause of this same section 8, the making of the subscription and the levy of the tax are treated as different things. It is there said no subscription shall be made, or no tax shall be levied, until the same shall be voted for. Does not this expressly require a vote for the tax before it can be levied ? But it is said, by voting to donate bonds the tax was impliedly voted for. This will not do; for the act says, “no tax shall be levied until the same shall be voted for, as hereinafter provided.” -The language is not, until the same shall be voted for directly or “impliedly.” We find nothing in the act suggesting an election-or vote by implication. When we look into section 9, to learn what is the mode referred to and required by the words “as hereinafter provided,” we find the application for the election must be for “ an election to determine whether such subscription shall be made and such tax levied”—specifying in such application the amount of the same. The words, “ the same,” here plainly relate to the tax to be levied, as much as to the subscription to be made. The question whether such subscription shall be made, and also the question whether such tax shall be levied, are both required to be submitted.
Again, section 10 requires that a majority shall be cast, at such election, “ iu favor of such subscription and tax for the payment thereof,” before authority or power is given to levy such tax, subscribe the amount thereof and issue bonds for such amount.
Here are three things to be done—where the proper election has been held with favorable result—and they are stated in the order following : 1st, to “levy such tax;” 2nd, to subscribe “ the amount thereof” (that is the amount of the tax;) and 3rd, to “ issue bonds for such amount.”
It will be observed the statute says nothing about a vote for or against issuing bonds. The authority is by an election to determine whether such subscription shall be made,- and such tax levied, as may have been stated in the application of 25 voters, specifying the amount; and also it will be observed that the grant of general power in section 8, the mode of exercising which is provided in sections 9 and 10 is, 1st, to raise money by a levy of a tax, and then to subscribe the same. There might be a vote for taxation and no vote for subscription ; so there may be a vote for subscription and no vote for a tax. Ho authority is given to issue bonds without a vote for both. When the necessary vote for taxation and also for subscription have been had the law gives power to issue the bonds, but does not require a vote that bonds shall issue. We have no warrant for substituting a vote that bonds shall issue,in lieu of a vote that a specified amount of tax shall be levied.
It is clear to my mind that it was intended that no power to charge the town was to be exercised until the majority of the voters had distinctly voted their willingness- to be taxed the necessary amount. The provisions require, in my judgment, that the attention of the voters should be distinctly called to the fact that, if the vote was for the proceeding, a tax would be levied, and that the amount of the tax should be laid before them in the application for an election.
This is no idle provision of the statute. The language is express and plain, and, in my judgment, ought not' to be disregarded. Men run in debt heedlessly and without carefully considering how soon they may be pressed for payment, and without considering well their probable means of payment. The law required that the amount of the tax necessary for this adventure should be specified, that the voter should have it in mind when he voted for subscription. This was not done; without it the whole proceeding was, in my judgment, ultra vires. This is a donation,—a thing for which the town gets nothing. These people never did vote to levy this tax. The holders of the bonds were bound to look to the power, and they knew the burden of proving the power rested on them.