PETERS, <T.
A primary question in this case is, the constitutional validity of the law under which the people of the county of Dallas acted in the matter set forth in the [725]*725complainant’s petition, in the court below. This depends, in the first instance, upon the power of the legislature of the State to create corporations ; and in the second place, the power to bestow upon such corporations as it may create, the authority to contract debts, or obligations in the nature of debts. If these questions are affirmatively answered, as it seems to me they must be, then one of the chief difficulties in this case is removed.
It would be but a waste of time to attempt to show that the general assembly of this State may establish corporations. It would be equally vain to argue that such corporations, when so created, may not be clothed with a power to contract debts, or to enter into such obligations as individuals may enter into. A corporation is an artificial person, and is solely the creature of the law-making power, in this country. And it may exercise such authority, in all matters with which it may deal, as the legislature may think fit to bestow upon it, where the legislative power itself is not limited by some constitutional restriction.— 2 Kent, 273, 276, 277, 278, 275 ; 1 Kydd Corp. 13, 69, 70 ; 1 Bla. Com. 475; Ang. & Ames Corp. 1, 2, et seq.; Dartmouth College v. Wooaward, 4 Whea. 636, Marshall, C. J., arguendo.
The county is a corporation created by law. Like most corporations, its powers are necessarily specific and limited, but such powers as it may exercise, it owes to legislative grant. And the legislature may make such grant as broad as it thinks fit, unless there is a constitutional restriction which confines such grant to a specific limit. The legislature is simply the agency by which the people exercise the sovereign law-making powers remaining to them as citizens of the State, and not abandoned to the government of the whole Union. For, in the two governments, the national and the State governments, the absolute sovereign power of the people to make laws is vested. There is no power for this purpose exist ng anywhere else. Between these the whole sovereignty to make laws is absorbed. And it is beyond question that the people, as the absolute sovereigns, may do what they think best. They are the supreme and irresistible power to make and to [726]*726unmake,” in the States and in the nation.— Cohens v. Virginia, 6 Wheat. 264, 389, 390 ; Tiffany on Gov. 46, § 74, et seq., and notes. In their action, without constitutional organization, the majority necessarily represents the sovereign will, which is the law. — 1 Bla. Com. 44; 1 Steph. Com. 25. This is the case with all bodies of men who act without the limitations which an Organization may prescribe.— 1 Tucker’s Bla. Com. app. 168,172; 1 Story Const. § 330; 9 Dane Abr. 37, 43; Ruthf. Inst. p. 249,’ §§ 1, 2. Then, with us, where there is no limit imposed by the national organization, which we call the government of the United States, in such matters as those involved in this case, the States are free to act as they please. And they act without restraint, except such as they may impose upon themselves. — Dorman v. The State, 34 Ala. 216, 230; Cooley, 87, 172, 173; Smith Com. p. 312, 313. Most clearly, this is a question with which the constitution of the Union has nothing to do. It is a question of a grant of power to a State corporation, which acts wholly within the State, and wholly for domestic purposes. It is a question, then, as to what powers a State may confer on a county corporation, within its own limits. Undoubtedly, a State may divide its territory into counties, and give to each county a corporate existence. This, so far as I am advised, has never been doubted. — Const. Ala. 1819, Art. YI, § 16; Const. Ala. 1867, Art II, § 2 ; Rev. Code, § 896; Covington County v. Kinney, January T. 1871; Barbour County v. Horn, ib.; 2 Kent, Z75; Ang. & A. Corp. §§ 18, 71. That the State may authorize the counties so created to sue and be sued, to contract and be contracted with, and to levy taxes on the people of the county and on their property, is equally undisputed. — Rev. Code, §§ 897, 898, 900, 902, 904, 905 ; Stein v. Mayor and Aldermen of Mobile, 24 Ala. 591. Then, unless it appears that there is some express limitation imposed on the legislature by the State constitution, which fetters the general assembly in its power to make such a grant to the county as that exercised under the act in question in this case, it is reasonable to conclude that none such exists. The omission to make the limitation, leaves the power as broad as the sovereignty itself; that is, “ ab[727]*727solute and irresistible.” — tí Wheat, supra. The power, then, in the legislature, to authorize the counties of the State to make contracts, to own propertv, and incur obligations, is without limit, save such as policy and discretion may demand.— Smith’s Com. pp. 312, 313 ; Booth v. Town of Woodbury, 5 Amer. Law E. p. 202.
The people of the county are the corporators of the county. — 2 Kent, 274. Like other corporations, they may have their powers restricted or enlarged by statutory enactment. This may be done by general or by special law. And whether done in the one way or the other, the corporators of the county can only be held to be bound in the event they act under authority of the law thus made. The legislature clothes them with the power to act. This the legislature has the power to do. — 24 Ala. 591, supra. And when tne county acts, as all corporations must, when no other mode is prescribed, it must perform its functions through the action of a majority of its citizens entitled to speak in its elections. — Aug. & A. Corp. §§ 84, 499 ; 1 Kydd Corp. 422; 2 Kent, 23tí.
And what the legislature does, is done by the people. The law is, theoretically at least, the united will of all the people of the State, both of those who favor the specific enactment, and of those who oppose it, and also of those who were silent and said nothing. — Dwarris Stats. 657. Then, when tne legislature declares that a county, or the people of a county, may do any particular thing, this is the declaration of all the people of the State and of all the people of the county. They all consent to the declaration, or law, thus made, and agree and bind themselves to carry it into' effect, and they accept all its consequences. This declaration, as long as it remains in force, is the law, unless the people, in some way, have bound themselves not to make such law; that is, have forbidden it in their constitution, which is their organic law. If they have, then the enactment is contrary to the legislative will of the State. It is unconstitutional and void. In such case, the legislative department of the government of the State is presumed to have fallen into an error. This, any and all the departments of the government may do. And the [728]*728courts are bound to declare that such error has been committed, when the question is submitted to their judgment 5 and the law is held invalid for this reason. — 1 Kent, 448, 449, et seq.; Marbury v. Madison, 1 Cranch, 49; Haley v, Clark, 26 Ala. 439. But this is never done, unless such, error is clear and palpable. It can not be done on mere inference and presumption. — Fletcher v. Peck, 6 Cr. 87-The fact of error must be patent and beyond reasonable doubt, in order to justify the court in a judgment of nullity against an enactment of the general assembly.
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PETERS, <T.
A primary question in this case is, the constitutional validity of the law under which the people of the county of Dallas acted in the matter set forth in the [725]*725complainant’s petition, in the court below. This depends, in the first instance, upon the power of the legislature of the State to create corporations ; and in the second place, the power to bestow upon such corporations as it may create, the authority to contract debts, or obligations in the nature of debts. If these questions are affirmatively answered, as it seems to me they must be, then one of the chief difficulties in this case is removed.
It would be but a waste of time to attempt to show that the general assembly of this State may establish corporations. It would be equally vain to argue that such corporations, when so created, may not be clothed with a power to contract debts, or to enter into such obligations as individuals may enter into. A corporation is an artificial person, and is solely the creature of the law-making power, in this country. And it may exercise such authority, in all matters with which it may deal, as the legislature may think fit to bestow upon it, where the legislative power itself is not limited by some constitutional restriction.— 2 Kent, 273, 276, 277, 278, 275 ; 1 Kydd Corp. 13, 69, 70 ; 1 Bla. Com. 475; Ang. & Ames Corp. 1, 2, et seq.; Dartmouth College v. Wooaward, 4 Whea. 636, Marshall, C. J., arguendo.
The county is a corporation created by law. Like most corporations, its powers are necessarily specific and limited, but such powers as it may exercise, it owes to legislative grant. And the legislature may make such grant as broad as it thinks fit, unless there is a constitutional restriction which confines such grant to a specific limit. The legislature is simply the agency by which the people exercise the sovereign law-making powers remaining to them as citizens of the State, and not abandoned to the government of the whole Union. For, in the two governments, the national and the State governments, the absolute sovereign power of the people to make laws is vested. There is no power for this purpose exist ng anywhere else. Between these the whole sovereignty to make laws is absorbed. And it is beyond question that the people, as the absolute sovereigns, may do what they think best. They are the supreme and irresistible power to make and to [726]*726unmake,” in the States and in the nation.— Cohens v. Virginia, 6 Wheat. 264, 389, 390 ; Tiffany on Gov. 46, § 74, et seq., and notes. In their action, without constitutional organization, the majority necessarily represents the sovereign will, which is the law. — 1 Bla. Com. 44; 1 Steph. Com. 25. This is the case with all bodies of men who act without the limitations which an Organization may prescribe.— 1 Tucker’s Bla. Com. app. 168,172; 1 Story Const. § 330; 9 Dane Abr. 37, 43; Ruthf. Inst. p. 249,’ §§ 1, 2. Then, with us, where there is no limit imposed by the national organization, which we call the government of the United States, in such matters as those involved in this case, the States are free to act as they please. And they act without restraint, except such as they may impose upon themselves. — Dorman v. The State, 34 Ala. 216, 230; Cooley, 87, 172, 173; Smith Com. p. 312, 313. Most clearly, this is a question with which the constitution of the Union has nothing to do. It is a question of a grant of power to a State corporation, which acts wholly within the State, and wholly for domestic purposes. It is a question, then, as to what powers a State may confer on a county corporation, within its own limits. Undoubtedly, a State may divide its territory into counties, and give to each county a corporate existence. This, so far as I am advised, has never been doubted. — Const. Ala. 1819, Art. YI, § 16; Const. Ala. 1867, Art II, § 2 ; Rev. Code, § 896; Covington County v. Kinney, January T. 1871; Barbour County v. Horn, ib.; 2 Kent, Z75; Ang. & A. Corp. §§ 18, 71. That the State may authorize the counties so created to sue and be sued, to contract and be contracted with, and to levy taxes on the people of the county and on their property, is equally undisputed. — Rev. Code, §§ 897, 898, 900, 902, 904, 905 ; Stein v. Mayor and Aldermen of Mobile, 24 Ala. 591. Then, unless it appears that there is some express limitation imposed on the legislature by the State constitution, which fetters the general assembly in its power to make such a grant to the county as that exercised under the act in question in this case, it is reasonable to conclude that none such exists. The omission to make the limitation, leaves the power as broad as the sovereignty itself; that is, “ ab[727]*727solute and irresistible.” — tí Wheat, supra. The power, then, in the legislature, to authorize the counties of the State to make contracts, to own propertv, and incur obligations, is without limit, save such as policy and discretion may demand.— Smith’s Com. pp. 312, 313 ; Booth v. Town of Woodbury, 5 Amer. Law E. p. 202.
The people of the county are the corporators of the county. — 2 Kent, 274. Like other corporations, they may have their powers restricted or enlarged by statutory enactment. This may be done by general or by special law. And whether done in the one way or the other, the corporators of the county can only be held to be bound in the event they act under authority of the law thus made. The legislature clothes them with the power to act. This the legislature has the power to do. — 24 Ala. 591, supra. And when tne county acts, as all corporations must, when no other mode is prescribed, it must perform its functions through the action of a majority of its citizens entitled to speak in its elections. — Aug. & A. Corp. §§ 84, 499 ; 1 Kydd Corp. 422; 2 Kent, 23tí.
And what the legislature does, is done by the people. The law is, theoretically at least, the united will of all the people of the State, both of those who favor the specific enactment, and of those who oppose it, and also of those who were silent and said nothing. — Dwarris Stats. 657. Then, when tne legislature declares that a county, or the people of a county, may do any particular thing, this is the declaration of all the people of the State and of all the people of the county. They all consent to the declaration, or law, thus made, and agree and bind themselves to carry it into' effect, and they accept all its consequences. This declaration, as long as it remains in force, is the law, unless the people, in some way, have bound themselves not to make such law; that is, have forbidden it in their constitution, which is their organic law. If they have, then the enactment is contrary to the legislative will of the State. It is unconstitutional and void. In such case, the legislative department of the government of the State is presumed to have fallen into an error. This, any and all the departments of the government may do. And the [728]*728courts are bound to declare that such error has been committed, when the question is submitted to their judgment 5 and the law is held invalid for this reason. — 1 Kent, 448, 449, et seq.; Marbury v. Madison, 1 Cranch, 49; Haley v, Clark, 26 Ala. 439. But this is never done, unless such, error is clear and palpable. It can not be done on mere inference and presumption. — Fletcher v. Peck, 6 Cr. 87-The fact of error must be patent and beyond reasonable doubt, in order to justify the court in a judgment of nullity against an enactment of the general assembly. The wisdom and learning of the law-making power is not to be presumed to be inferior to that of the courts. Each is presumed to know the scope of its powers, and high duties which these powers originate. Each acts under like sanction of an oath, and fealty to the best interests of the people, whose agents they are. They discharge the functions of co-ordinate and separate departments of the sovereign power. They are each responsible to the people, but not to each other. They are distinct and independent. Const. 1867, Art. II, § 2. No power is expressly given to the one to review the acts of the other. Among agencies so constituted, it is an exceedingly delicate office for the one to say of the other, that it is incapable or inco npetent to the performance of a plain duty equally patent to both; that is, the duty of adhering in its action to the limits prescribed by the constitution. It is contended that the courts are bound by oath to support the constitution, and therefore they must declare an enactment void, which, in their opinion, is repugnant to the limitations of that instrument. No power of this grave nature is expressly given. Considering its importance, it is a little strange that it has been wholly omitted. But, grant that it exists. It can not be permitted to rest upon mere inference and argument; because, if the inference is a mistake, or the argument is false, its exercise is an usurpation by one branch of the government against the authority of another. Did the people mean to grant such a power, unless some express clause of the constitution was clearly disregarded ? I think not. — McCulloch v. State of Maryland, 4 Wheat. 316, passim; People v. Mahaney, 13 Mich. 481.
[729]*729The act under which the petitioner proceeded, and to the validity of which the appellees object, was approved December 81st, 1888. It is entitled, “An act to authorize the several counties, and towns and cities of the State of Alabama to subscribe to the capital stock of such railroads, throughout the State, as they may consider most conducive to their respective interests.” — Pamph. Acts 1888, p. 514, No. 172. The first section of this statute, wdiich is the operative portion, I quote below, omitting the enacting clause:
“ Section 1% That any and every county of the State of Alabama, situate upon, or adjacent to, main or branch lines of the railroads of this State, as such lines are, or may be hereafter located by the companies owning and controlling said roads respectively, is authorized and cm* poiuered to subscribe for, take and pay for the capital stock of such railroad companies of the State as they may deem most conducive to their interests, as hereinafter provided. The said railroad companies, by their president and the majority of their directors, may, in writing, propose to any such county that it shall subscribe for and take an amount of their capital stock, to be named in said proposal, at a certain price per share, and pay for the same in such bonds of the county as shall be set forth in said proposal.”— Pamph. Acts 1868, p. 514, No. 172.
The other sections of this act are merely directions as to the manner in which the “authority ” thus given is to be exercised. If the authority can be given, then undoubtedly the mode of exercising it may be given, and to a corporation like a county it should be given also. The authority is the chief thing. The modes of its exercise are the incidents. And here, as in other cases, the greater necessarily contains the less. Omne majus continet, in se, minus. — Wing. Max. 206. The thing given implies the power to enjoy its use.
If we keep the real point in controversy in this discussion properly in view, it seems to me that there can be no room for doubt. It is this: Can the legislature of this State authorize the corporations mentioned in the caption of the above cited act to contract the obligations therein [730]*730mentioned? Where is the limitation that forbids it? I have looked in vain to find it. This is the whole question. This power has never been denied in this State. Only the mode to discharge the obligations has been questioned, but not the power to confer it. It has been repeatedly exercised and sustained in this State, and almost without exception in every State of the Union, where it has not been expressly forbidden. — Stein v. The Mayor of Mobile, 24 Ala. 591; Stein v. The Mayor of Mobile, 17 Ala. 234; see, also, Pamph. Acts 1859-60, pp. 193, 197, 246, 271, 284, 210; Pamph. Acts 1855-56, p. 291, No. 299; Pamph. Acts 1865-66, pp. 460, 461, Nos. 276, 277 ; ib. p. 534, No. 382; Pamph. Acts 1866-67, p. 4, No. 2; Pamph. Acts 1849-50, p.343, No. 201; Bev. Code* §§ 900-902. I have referred to the foregoiug enactments in order to show that the general assembly of this State has repeatedly authorized corporations in this State to contract debts for various purposes, and this power has never until recently been questioned. If the corporators act under the authority thus bestowed, they consent to incur the obligation thus created, and to accept the consequences. That is, they bind themselves to discharge it. What a corporation does, as the law provides, binds all the members, just as if all had assented to it. The minority must go with the majority, unless there is some rule to excuse them. And in this case there is none. In this respect, counties are not different from other corporations. If an obligation is contracted by the majority, in the manner authorized by law, it mus i be discharged in the manner authorized by law. It can not be repudiated because the minority complain, nor because the majority may subsequently change its views. If the obligation creates a debt, it must be paid.— Von Hoffman v. City of Quincey, 4 Wall. 535; Mitchell v. Burlington, 4 Wall. 270, 274; Thompson v. Lee County, 3 Wall. 330; Meyer v. City of Muscatine, 1 Wall. 385; Gelpcke v. City of Dubuque, 1 Wall. 202. The principle upon which these cases rest is, that when a party consents to contract a debt, he also consents to the use of the necessary appliances to enforce its payment. Here, the consent to the “subscription” is a consent to the issuance of the '‘county [731]*731bonds,” and the obligation to pay them. It is a consent to the tax, if that is the mode of/raising the funds necessary for the payment. And in a corporation, the majority of the corporators can give this consent, unless some other method is provided. — Ang. & A. Corp. p. 76, § 84; ib. p. 517, § 499 ; 2 Kent, 236. And a majority of the corpora-tors is a majority of the voters of the county, because the citizens are the corporators, and the legislature has declared that they shall act by submitting the question to be decided to the popular vote. Such legislation may be wise or unwise, but it can not now be said that in such a case the corporator is taxed without his consent, or that his property is taken and applied to public or private uses without his consent.— Gibbons v. Mobile & Great Northern Railroad Company, 36 Ala. 410; Gilman v. City of Sheboygan, 2 Bla. 510; State of Alabama, ex rel. Board for Imp. River, Harb. and Bay of Mobile, v. Comm’rs of Revenue for Mobile County, Jan. T. 1871.
There are two sections of the present constitution which, it is urged upon the court by,the learned counsel for the appellees, affect the questions involved in this case. The one is the 25th section of the first article. So much of this as is presumed to be applicable to this discussion is in these words:
“ That private property shall not be taken or applied for public use, unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner.” — Const. Ala. 1867, Art. I, § 25, Pamph. Acts 1870-71, p. v.
The other section is as follows:
“The State shall not engage in ivories of internal improvement, but its credit in aid of such may be pledged by the general assembly on undoubted security, by a vote of two-thirds of each house of the general assembly.”— Const. Ala. 1867, Art. IY, § 33, Pamph. Acts 1870-71, p. xii.
I also quote below another section of the fundamental law, which in some measure is connected with the very important question under consideration. It is this:
[732]*732“ The general assembly shall not have power to authorize any municipal corporation to pass any laws contrary to the general laws of the State, nor to levy a tax on real or personal property to a greater extent than two per centum of the assessed value of such property.” — Const, Ala. 18u7, Art. IY, § 36, Pamph. Acts 1870-71, p. xii.
It can hardly be denied that a county is a “ municipal corporation.” — 2 Kent, 275, marg.; People v. Morris, 13 Wend. 325, 335; Horton, Judge, &c., v. Mobile School Com., 43 Ala. 598; 1 Bla. Com. 116; 4 Bla. Com. 411. Then, counties are excepted out of the prohibition expressed in section twenty-five of the constitution, above cited. This is the effect of the words “ other thau,” before the word “municipal,” in said section. Then, so far as county corporations are involved, the constitution stands in this case as it did before the adoption of the present instrument. And such corporations could be authorized by the legislature of the State not only to subscribe for stock of a railroad company, but also to levy a tax for the payment of the obligation incurred for this purpose.— Gibbons v. Mobile & Great Northern Railroad Company, 36 Ala. 110.
The State undoubtedly may permit works of internal improvement to be constructed within its limits, without engaging as a party therein. It is this that the constitution prohibits. The State is different from a county. And the limitation being applied to the State alone, legal reasoning will not permit it to be extended beyond the State. Expressum facit cessare taciturn. — Broom’s Max. p. 278. The constitution, then, does not intend to fetter the action of the general assembly in its power to grant authority to any other corporations it may create to do what the State, as such, may not do. This also appears from the further fact, that a municipal corporation may be authorized to levy taxes to the extent of Uoo per centum on the value of the property assessed. — Const. Ala. 1867, Art. IY, § 36, supra. This appears from the section of the constitution above cited. And it is the exercise of this power to tax that is most persistently complained of. This power is nob within the control of this tribunal, unless it is carried beyond the limit of “two per centum” of the assessed value [733]*733of the property, real and personal, on which the tax is levied.
Another objection to the act under discussion is, that its title conflicts with the second section of the fourth article of the State constitution, which is in these words: “ Each law shall contain but one subject, which shall be clearly expressed in its title.” — Const. 1867, Art. IY, § 2. The title to the law in controversy has already been recited. This act was approved December 31st, 1866. — Pamph. Acts 1868, p. 514, No. 172. The above cited section of the constitution of the State has already been discussed, to some extent, in this court. It is settled, that it is a command upon the general assembly which they can not disregard, and is not merely directory. But no rule is yet laid down which defines the stringency with which this command shall be construed and enforced.— Weaver v. Lapsley, 43 Ala. 224; Martin v. Hewitt, 44 Ala. 418 ; Gunter v. Dale County, ib. 639. These latter cases, without impeaching or impairing the able opinion in Weaver v. Lapsley, supra, evidently show that this command is to be liberally and broadly construed. They also acknowledge the right of the general assembly to construe the section of the constitution above referred to, and to fix their own interpretation upon it, to the same extent that may be done by the courts. If this construction may be liberal and large, they have the right so to fix it. This they have done. And it seems to me that this tribunal would pass beyond the wise limit of its powers, when it goes into minute criticisms in order to controvert the accuracy of the legislative interpretation. Yery true, the right to do this may exist; but it is never exercised save in a case wholly free from all reasonable doubt. — Fletcher v. Peck, 6 Cranch, 87. This is a safe rule, and can not lead to a conflict of judgment between two of the chief departments of the government. And for this reason it ought to be inflexibly adhered to.
The true “subject ” of the law in controversy is “ works of internal improvement in this State,” whether by railroads or by navigable streams. From the very birth of the State, these branches of this important subject have been united. They are mentioned together in the act of [734]*734Congress granting to the State the two and three per cent, funds. — Code of Ala. 25, 27. This subject is everywhere treated as a unit. It is so mentioned in the State constitution itself. — Sec. 33, art. 1Y, supra. It is the basis of a great system of internal commercial intercourse. It may have an almost infinite variety of details, but it is one in purpose and in subject. Here it is the only theme of discourse in the law. — 7 Enc. Am. 16, Inland Navigation; 10 ib. 478, Railways; 11 ib. 44, Rivers Navigable; Webst. Die. Unab., word subject. “Works of internal improvement” being the theme and purpose of the legislature, all the details of the subject may justly be connected in one system by one law. This the general assembly have done. Besides, the mere use of language by that body is a high indication of its legislative fitness; particularly, as in this case, when it has the concurrent sanction of the executive. If the enactment is unsatisfactory and impolitic in the estimation of the people, let it be repealed by the proper authority, not by the courts. The objection to the title of the law I think insufficient, and it must therefore fail.
The petition alleges that, under authority of the act of December 31, 1868, above mentioned, the Selma & Gulf Railroad company, a corporation regularly and legally organized, made a proposition to Dallas county, in this State, in the manner prescribed by said statute, to take and pay for the sum of two hundred and fifty thousand dollars of the capital stock of said company. An election was ordered and held, to vote on the acceptance of this proposition by the people of the county, as required by the law, when a majority of almost two to one of the people of the county voted to accept the proposition of the company: When this is done, the court of county commissioners is authorized and required to make the subscription voted for in behalf of said county to the capital stock of said company, in the manner, and for the amount set forth in said application, and to deliver to said railroad company, in payment of said subscription, bonds of the county, having not less than ten nor more than twenty years to run, with interest coupons attached for semi-annual interest, payable at such times and places as may be agreed upon between [735]*735the said railroad company and the said judge of probate of said county.” —Pamph. Acts 1868, pp. 514,515, 516, § 6, No. 172. By virtue of this authority and requisition of the law above said, the said railroad company applied to the court of county commissioners of said county of Dallas for the subscription to the stock of said company, and for the bonds of the county in payment therefor, to the amount so voted and accepted, as aforesaid, by the people of county; but said court of county commissioners refused to make the subscription and is-sue the bonds, as required by said act. The said railroad company then applied to the judge of the criminal court of Dallas county for an order nisi against said commissioners court, to show cause why said subscription should not be made and said bonds issued, as authorized and required by said court, or a mandamus awarded to compel the same. This the said judge refused, and the application and motion is now renewed in this court. And the application is now resisted here, on the grounds, that the statute above quoted is repugnant to the constitution of the State, and therefore void. This objection is also insufficient.
Let a rule nisi be granted, in accordance with the prayer of appellants’ petition and motion in this court, returnable into this court during the present term, on Thursday after the first Monday in July, in the year 1871, the same being the sixth day of said month of July, 1871, to show •cause, &c.
The Chief Justice concurs in the result of this opinion, but he holds that the provisos to the seventeenth section of the act above referred to are unconstitutional, and that if the title of this law had expressed the subjects of these provisos, then the whole act would have been obnoxious to the constitution, and void.