constitution; but was a measure of police, prohibiting only a particular mode of carrying arms which is found dangerous to the peace of society. In Stockdale v. The State, 12 Ga. 225, it was decided that a statute prohibiting the open wearing of arms upon the person violates the provision of the constitution, though a statute against wearing concealed arms does not. So in Alabama it was held that a statute against carrying concealed weapons was not in violation of a guaranty in the State constitution, of the right to every citizen "to bear arms in defense of himself and of the State." Owen v. State, 31 Ala. 387, and see also Cockrum v. State, 24 Texas, 394. To the same effect is State v. Buzzard, 4 Ark. 18, State v. Mitchell, 3 Blackf. 229. — REP. CASES IN THE SUPREME COURT OF OHIO. WALKER, plaintiff in error, v. CITY OF CINCINNATI et al. (21 Ohlo St. 14.) Taxation in aid of railroads. Constitutional Law-appointing power — what is an "officer." An act of the legislature authorizing a city to raise by taxation of its citizens the means for constructing a railroad leading into such city, from points within or without the State, when the railroad is deemed by a majority of the citizens to be essential to the interests of the city, is not unconstitutional. The legislature of Ohio authorized the judges of the superior court to appoint trustees of a contemplated railway. Held, (1) that this was not an exercise of the appointing power, forbidden to the legislature by article II, section 27 of the State constitution, such trustees not being public officers in the constitutional sense, and their appointment by the court being a legitimate function; (2) that the act was not in violation of article 4, section 14 of the State constitution, prohibiting the judges from holding any other office, such power of appointment being only an additional power or duty annexed to an existing office and not a new office; and (3) the act was Lot in violation of article II, section 20 of the State constitution, in not fixing the term of office and compensation of the trustees, such trustees not being "officers" in the sense of the constitution. BILL for an injunction filed by J. Bryant Walker, April 12, 1870, in the superior court of Cincinnati. The opinion sufficiently states the facts. Walker v. City of Cincinnati. The defendants demurred, and the superior court at general term sustained the demurrer and dismissed the bill. Complainant appealed. E. W. Kittredge, F. W. Moore, Charles Reemelin and Scribner & Hurd, for the injunction. Stanley Matthews, Henry Stanberry, William B. Caldwell and E. A. Ferguson, against. SCOTT, C. J. The question presented by this case is as to the constitutionality and validity of the act of the general assembly of this State, passed March 4, 1869, entitled "An act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants." The general scope and purpose of the act is to authorize any such city to construct a line of railroad leading therefrom to any other terminus in the State or in any other State, through the agency of a board of trustees consisting of five persons, to be appointed by the superior court of such city, or if there be no superior court then by the court of common pleas of the county in which such city is situated. The enterprise cannot, however, be undertaken until a majority of the city council shall, by resolution, have declared such line of railway to be essential to the interests of the city, nor until it shall have received the sanction of a majority vote of the electors of the city, at a special election to be ordered by the city council, after twenty days' public notice. For the accomplishment of this purpose, the board of trustees is authorized to borrow a sum not exceeding ten millions of dollars, and to issue bonds therefor in the name of the city, which shall be secured by a mortgage on the line of railway and its net income, and by the pledge of the faith of the city, and a tax to be annually levied by the council, sufficient with such net income to pay the interest and provide a sinking fund for the final redemption of the bonds. In pursuance of the authority which this act purports to give, the city council of Cincinnati has resolved that it is essential to the interests of that city that a line of railway to be named "The Cincinnati Southern Railway," shall be provided between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee; and this action of the council has been indorsed and approved VOL. VIII. 4 Walker v. City of Cincinnati. by a vote of more than ten to one of the electors of the city, at an election duly ordered and held pursuant to the requirements of the act. But fifteen hundred of the electors of the city voted against the proposed project, and the grave question here presented, on behalf of these unwilling electors and tax payers, is, whether it is within the power of the State legislature to authorize the taxation of their property by the municipality for the purpose of constructing such a line of railway by the means and in the manner prescribed in this act. The consequences which may reasonably be expected to result from the exercise, by municipal corporations, of powers such as this act purports to confer, both in respect to public and private interests, are so momentous as to make it difficult to overestimate the importance of the question; and to demand at our hands the most careful investigation and deliberate consideration. This is the first instance in the history of the State, so far as we are aware, in which the general assembly has undertaken to authorize municipalities to embark in the business of constructing railroads on their own sole account, as local improvements. The railway contemplated in this instance is several hundred miles in length, extending into other States; the sum authorized to be expended in its construction is a large one, and should it prove inadequate for the completion of the road, we may reasonably expect it will be increased by subsequent legislation. These considerations and the apparent abuse of discretion involved in declaring such a work to be so far local in its character as to justify its construction by a single city, at the sole expense of its citizens, all give a high degree of interest to the question. But we must bear in mind that the question is one of legislative power, and not of the wisdom, or even of the justice of the manner in which that power, if it exists, has been exercised. Had we jurisdiction to pass upon the latter question we should probably have no hesitation in declaring the act under review to be an abuse of the taxing power. Let us then first inquire under what conditions it becomes competent for the judiciary to declare an attempted act of legislation, formally enacted by the general assembly, to be invalid, by reason of unconstitutionality. Courts cannot, in our judgment, nullify an act of legislation on the vague ground that they think it opposed to a general "latent spirit," supposed to pervade or underlie the constitution, but which Walker v. City of Cincinnati. neither its terms nor its implications clearly disclose in any of its parts. To do so would be to arrogate the power of making the constitution what the court may think it ought to be, instead of simply declaring what it is. The exercise of such a power would make the court sovereign over both constitution and people, and convert the government into a judicial despotism. While we declare that legislative power can only be exercised within the limits prescribed by the constitution, we are equally bound to keep within the sphere allotted to us by the same instrument. On this subject we cannot do better than to adopt what is so well said by Judge COOLEY in his treatise on " Constitutional Limitations," pp. 128, 129, where, in speaking of limitations upon legislative authority, he says: "Some of these are prescribed by constitutions, but others spring from the very nature of free government. The latter must depend for their enforcement upon legislative wisdom, discretion and conscience. The legislature is to make laws for the public good and not for the benefit of individuals. It has control of the public moneys, and should provide for disbursing them for public purposes only. Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes, and what does properly constitute a public burden, are questions which the legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the courts, except perhaps where its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful. Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes, and not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives." And he adds on page 171: "Nor are the courts at liberty to declare an act void because, in their opinion, it is opposed to a spirit supposed to pervade the constitution, but not expressed in words;" citing People v. Fisher, 24 Wend. 220; Cochran v. Van Surlay, 20 id. 381; People v. Gallagher, 4 Mich. 244; Benson v. Mayor of Albany, 24 Barb. 252; Grant v. Courter, id. 232; Wynehamer v. People, 13 N. Y. 391. We do not understand it to be claimed that the act in question is an assumption of any of the powers specially delegated to the general government by the constitution of the United States, nor that |