Winn v. City Council , 21 Ga. 275 ( 1857 )

By the Court.

Lumpkin, J.

delivering the opinion.

As counsel for the corporation yield the right to the Legislature to delegate the power to the city of Macon to subscribe for stock in the road, the only question submitted for our decision is, whether the grant has been conferred in this case, either directly or by necessary implication ?

By the tenth section of the Act of 1833, Pamphlet 112, it is provided, “That the Mayor and Council of the City of Macon, or a majority of them, shall have power and authority to borrow money and contract loans, not to exceed $200,000, for the use of the city, both from bodies corporate and from individuals, either residing in or out of the State; and to pledge the funds or property of the corporation of the City of Macon and the commons thereof, for the redemption of such loan or loans; and also, shall have power to purchase any real or personal estate for the use and benefit of the corporation ; and sell and dispose of all or any part of the property, domain, land, or lots, or any personal property to said corporation belonging or appertaining, by lease for years, or fee simple, as to the said Mayor and Council, or a majority of them, shall seem right and proper.”

Passing by the grant of power in this Act, which is exceedingly broad, and which seems to point to some extraordinary investment of city capital in works of internal improvement, or some other enterprize; and disregarding the aliunde testimony explanatory of this act, we come to the Act of 1838. It purports to be “ An Act to amend the several laws for the incorporation of the city Macon; and to authorize the Mayor and Council to contract for the loan of money,” &e.

Next comes the preamble which recites that “whereas an Act has been heretofore passed authorizing the Mayor and Council of the city of Macon to contract for the loan of a sum or sums of money, not exceeding $200,000: and whereas, that sum has been already borrowed and vested in stocks for the purposes of internal improvement.” In order therefore, to enable said corporation to raise further sums, it is enacted, “that the city authorities have power to contract a further loan of $200,000 over and above the amount already borrowed ; and that the Town commons and public property of the city be pledged for the payment of the same.” Pamphlet 66. With a full knowledge on the part of the Legislature that the previous loan of $200,000 authorized by the Act of 1833, had been vested by the city “in stocks for the purposes of internal improvement,” instead of rebuking the corporation for a misapplication of these funds, they indirectly approve of the measure; and confer upon the city authorities power to borrow as much more for the same purpose. Now when it it is recollected that the five hundred shares of the stock of the Monroe Railroad and Banking Company, had been subscribed for in the month of September, previous to the passage of this act, as the minutes of the Board show, can it be doubted, that it both sanctions and ratifies that transaction, by necessary and irresistible implication? And moreover, the Act of 1838, serves as a key to explain the objects and intent of the loan contracted for, under the prior Act of 1833. The money authorized to be raised by that act, to aid in the construction of the roads below and above the city, proving inadequate for that purpose, a further application is made to-the Legislature, and power given to contract another loan.

This is not a power to levy a tax' or to burden the inhabitants of the city of Macon, with a personal liability. It is only the Town commons and the public property that is pledged for the payment of the loan. Whether it was wise in the corporation to take stock in this road, it is not permitted to -this Court to enquire. It was a question exclusively for the determination of the, Mayor and Council under the advice of the community whom they represented, and who b}r a popular vote seem to have decided in favor of the subscription. The results may not have equalled the expectations of the more sanguine and hopeful. When one surveys however, the princely palaces which crown her hills; her colleges and churches, her hotels, depots, ware-houses and stores ; her founderies and factories, rivalling in extent and costliness any in the union, the expansion of her commerce, the wealth of her population, individually' and collectively, surrounded by all the comforts and enjoyments which make life desirable; I see no reason for regret that Macon, the beautiful central city of the State should have contributed her part to those improvements which have been the medium through which this prosperity has been attained; and although her involvement on this account were a hundred fold greater than it is, I am persuaded that the high-souled counsel who so ably represented her|rights and interest in this discussion, would' be the last man living, to recommend that repudiation was a proper remedy for a debt contracted for such a purpose as this was.

Judgment reversed.