By an act passed by the legislature of Ohio, 20th March, 1850, the city of Cincinnati was authorized to issue its bonds to the amount of $1,000,000, to be lent to the building of railroads terminating in the city, or to be subscribed to their capital stock, on a vote of the qualified voters of the city, and of the City Council. The Ohio and Mississippi was one of these roads. A vote was obtained in favor of this railroad company, agreeing to the issue of bonds to the amount of $600,000 of the city, to be secured by a mortgage upon such property of the company as the City Council should require.
The seventh section of this act of 1850 provided, in substance, as follows:
'That it shall be the duty of the said City Council, and it is hereby authorized, to contract with the said companies, to secure, by mortgages, transfers, or hypothecations of stock of said company, or by such other liens or securities, real or personal, as may be mutually agreed on, the payment of the amount of the principal of such bonds as may become due, and for the reimbursement of the interest upon the same, which shall have been paid by the city; and for the further purpose of the securing the city against all loss or losses which the same may suffer, whether by the payment of the said principal or interest, or any damages arising therefrom, that the above-described liens, mortgages, or other securities shall have priority or precedence of all claims or obligations subsequently contracted by such company, and over other liens, securities, or mortgages which were not duly entered into between the company and other persons, before the respective issues and loans aforesaid.'
The ordinance of the city in respect to the security for its loan, as above authorized, was thus:
'That before the bonds, or any part thereof, shall be delivered over to the said company, it shall mortgage, hypothecate, pledge, and deliver to the city, $1,000,000 of the capital stock of said company, under seal, and shall authorize the City Council to sell and dispose of so much of the stock as will realize the aforesaid sum of $600,000; said stock to be sold at such times, in such sums, and upon such terms as the City Council may determine; and appropriate the proceeds in such manner as the same may direct.'
The terms mentioned in this ordinance were assented to by the company, and a certificate was duly issued, stating that the City of Cincinnati 'is the owner of twenty thousand shares of the capital stock in the Ohio and Mississippi Railroad Company, transferable on the books of the company, at the Cincinnati office, upon surrender of this certificate.' The certificate was indorsed:
'This stock is issued, mortgaged, hypothecated, and pledged to the City of Cincinnati, as security for the loan of the bonds of the city for $600,000,' & c.
This certificate of stock was accepted by the City Council and deposited with the City Treasurer, and bonds of the city were soon after issued to the company to the amount of the $600,000.
Subsequently to this transaction the railroad company made different mortgages of their road and its fixtures, and a bill of foreclosure having been filed under one of them–the second–and the City of Cincinnati made a party defendant, the city put in an answer, alleging, among other things, that she had lent to this railroad company her bonds to the amount of $600,000, and had a lien on the road as security paramount to any mortgage. This was denied by the holders of the bonds under the second mortgage, and, whether the city had or had not such a lien, was the question.
To understand the argument made here by the city's counsel, and which sought to support the lien, if support was wanted, by reference to other statutes of Ohio, it may be necessary to add:
1st. That prior to the date of these transactions, or of the act of 20th March, 1850, there was a law in force in Ohio, known as the General Railroad Law. This law–the provisions of which, it was said, had been extended to the Ohio and Mississippi Railroad (originally incorporated in Indiana)–gave power, by its 13th section, to railroad companies to borrow money, and to execute bonds or notes therefor; and in order to secure the payment thereof, to pledge their property and income; 'provided,' the act went on to say, 'That the value and security of any liens, mortgages, or the stock held in or against such company by the State or the City of Cincinnati, should not thereby be injured or otherwise impaired.'
2d. That subsequent to the act of March 20th, 1850, an act of February 10, 1851, authorizing the city to subscribe to another railroad–the Cincinnati Western–was passed; which act contained, in one of its sections–the 15th–exactly the same language as has been presented, supra, pp. 276-7, as making the 7th section of the act of March 20th, 1850, now under consideration, but contained, in addition, the following as its 16th section:
'That the City Council of the City of Cincinnati shall not lend her credit or issue her bonds to this or any other railroad company, unless the private stockholders mortgage a sufficient amount of real estate, in addition to the road and other effects of said company or companies, as security for the lending of her credit or issuing of such bonds by said city.'
Certain other incidents of the case may be mentioned; as,
1. That the original proposition made by the City Councils to the people, to be voted on, was whether the city should issue the $60,000, to 'be secured by a mortgage upon such property of the company as the City Council shall require,' and that this was the question voted on.
2. That when, after the popular vote authorizing the loan of the city's credit, the city directed its president of council to execute, issue, and deliver the bonds to secure the said loan, it did so reciting the loan as one 'which shall be by mortgage on the said road.'
3. That subsequently to this date another ordinance was passed:
'That so much of the before-recited ordinance as requires the loan of $600,000 to said company, to be secured by a mortgage on said road, be hereby repealed; provided, that before the bonds, or any part thereof, shall be delivered over to said company, the said company shall mortgage, hypothecate, pledge, and deliver to said City of Cincinnati, one million of dollars of the capital stock of said company, under seal, authorizing the City Council to sell and dispose of so much of the stock as will realize the aforesaid sum of $600,000; said stock to be sold at such times, in such sums, and upon such terms as the City Council may determine, and appropriate the proceeds in such a manner as said council may direct; provided further, that said company shall oblige itself, by writing under seal, in case of failure to pay interest upon said loan, to transfer to said City of Cincinnati a sufficient amount of the capital stock of said company, with authority to sell the same, as will realize the amount of interest unpaid.'
The court below–considering that the pledge was but of certificates of stock, one of the forms of security allowed by the 7th section of the act of 20th March, 1850, and that neither the 13th section of the general law incorporating railroads, nor the 16th clause of the act of February, 1851, incorporating the Cincinnati Western Railroad Company, and which required a pledge of the private property of the stockholders applied to the case–decreed that the city had no lien whatever on any property of the railroad, except upon the stock pledged to it. And an appeal was now here.
Mr. Stanbery, for the city: Has the city a lien on the road in this case?
I. We submit that the 7th section of the act of March 20th, 1850, on its own face gives it. This section makes it the duty, and authorizes the City Council to secure the payment of the principal and interest of these bonds. The sole purpose of this section was security to the city for the bonds to be issued. The section does not stop with the clause, giving a choice as to the nature of the security. It proceeds to declare, that for the 'further purpose of securing the city' from all loss or damage, the security given shall have priority over all claims, liens, mortgages, or securities, subsequently created.
Effect must be given to this part of the section. It must be taken into the account and receive a construction; or, rather, to state the point more accurately, the whole section must be ...