INDIANA. 



409 



line in a serviceable condition. The resolu- 

 tions of the Ohio Assembly on this subject at 

 its last session, after reciting the history of 

 the canal and the agreement between the two 

 States, declares that " the faith of the State 

 of Indiana is pledged to keep and maintain in 

 good navigable condition that portion of the 

 Wabash & Erie Canal within her limits, and 

 toward the construction of which she received 

 the grant of land under the act of Congress 

 of March 2, 1827 ; that the transfer of said 

 canal by said State of Indiana, and the sur- 

 render of the custody and management to 

 other parties, without making ample provision 

 for its preservation and repair, so as to keep 

 and maintain it in good navigable condition, are 

 not, in the judgment of this General Assem- 

 bly, consistent with the obligation and duty 

 resting upon said State of Indiana, in the prem- 

 ises, and a failure on the part of said State of 

 Indiana to keep said canal in good navigable 

 order, and the abandonment of the same, 

 which would necessarily follow, would result 

 in great damage to the citizens of Ohio en- 

 gaged in commerce on said canal, and work an 

 irreparable injury to the State itself; and that 

 the State of Indiana be, and she hereby is, re- 

 spectfully but urgently requested to make pro- 

 vision, without delay, to put said Wabash & 

 Erie Canal in good navigable order, and assure 

 its preservation in the future, as an act of 

 simple duty in fulfilment of the obligations 

 taken upon herself in the premises." The 

 State still stands in an anomalous position re- 

 garding this great work, and no doubt further 

 legislation will be found necessary before the 

 matter is adjusted on -a satisfactory basis. 



The act providing for the distribution of the 

 sinking fund among the different counties of 

 the State, for the benefit of schools, was pro- 

 nounced unconstitutional by the Circuit Court 

 of Marion County, in May. An action was 

 brought to restrain the Auditor, Secretary of 

 State, and Treasurer, from making the distri- 

 bution, and it was claimed that the act was 

 void for the following reasons : " 1. It attempts 

 to make an unconstitutional disposition of the 

 principal of the school fund. 2. It did not 

 inform the Legislature with sufficient distinct- 

 ness what law or act was being amended, and 

 therefore was a fraud on that body. 3. It 

 was and is false in assumption of facts, and is 

 incapable of execution. 4. It is void for want 

 of proper title. 5. It embraces two subjects. 

 6. It amends a law, and does not set forth the 

 act as amended. V. It enacts a new law with- 

 out a title expressing the subject. - 8. When 

 passed there was no General Assembly, a quo- 

 rum having ceased to exist in the House by 

 the resignation of its members." The provi- 

 sions of the constitution alleged to have been 

 outraged are as follows : 



SECTION- 3. The principal of the common-school 

 fund shall remain a perpetual fund, which may be 

 increased, but shall never be diminished ; and the 

 income thereof shall be inviolably appropriated to 



the support of common schools, and to no other pur- 

 pose whatever. 



SEC. 4. The General Assembly shall investj in 

 some safe and profitable manner, all such portions 

 of the common-school fund as have not heretofore 

 been intrusted to the several counties ; and shall 

 make provision by law for the distribution among 

 the several counties of the interest thereof. 



SEC. 5. If any county shall fail to demand its pro- 

 portion of such interest for common-school purposes, 

 the same shall be reinvested for the benefit of such 

 county. 



SEO. 6. The several counties shall be held liable 

 for the preservation of so much of said fund as may 

 be intrusted to them, and for the payment of the 

 annual interest thereon. 



The court held that the Legislature had the 

 power to pass a law distributing this fund 

 among the counties, and providing that the 

 officers thereof should invest them, and take 

 charge of the proceeds for the benefit of schools, 

 but decided that this particular act was so de- 

 fective as to be invalid. The distribution of 

 the fund was prevented by this decision, for 

 the time being at least, but the case was ap- 

 pealed to the Supreme Court, where it is still 

 pending. 



Another judicial decision of importance was 

 rendered in the Supreme Court in April, and 

 determined that the law authorizing counties 

 to subscribe for stock in railroad companies, 

 and tax the people to pay for it, was valid. It 

 had been claimed that the Legislature had no 

 authority, under the constitution, to tax the 

 people for the purpose of aiding in the con- 

 struction of railroads. Section Gth of the 

 10th article of the constitution reads thus : 

 " No county shall subscribe for stock in any 

 incorporated company unless the same be paid 

 for at the time of such 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 ever, on behalf of 

 the State, assume the debts of any county, city, 

 town, or township, nor of any corporation 

 whatever." It was contended on one side that 

 this contained a grant of power, and on the 

 other that it was a restriction upon the general 

 grant of power to the Legislature. The court 

 decided that the plain meaning of the first 

 clause was, that "any county may subscribe 

 for stock in any incorporated company, if such 

 stock is paid for at the time of such subscrip- 

 tion." It was a limitation upon an existing 

 right, and not a prohibition. It had been 

 claimed that, though the counties might sub- 

 scribe for stock if money was in the Treasury 

 at the time to pay for it, no means could be 

 taken to raise money for this specific purpose. 

 On this point the court said, after laying down 

 at length the reasoning by which the conclu- 

 sion was reached : " We, therefore hold that 

 the General Assembly possessed the power 

 under the constitution to authorize counties 

 to subscribe for stock in a railroad company, 

 on the express condition that the stock is paid 

 for in money at the time when the subscription 



