Jones v. Macon & Brunswick Railroad , 39 Ga. 138 ( 1869 )

Brown, C. J.

The allegations in this bill, upon the only ground authorizing the complainants to maintain it under the Act of the Legislature, are made, and the facts charged, “ on information received from others,” without stating who are the informants, and without any affidavit from such other persons to sustain the allegations. An injunction, which is a harsh remedy, should never be granted till a clear prima facie case is made by the bill, by positive averrments. A charge that the facts are true, on information received from others, is insufficient.

2. The 5th section of the “Act to loan the credit of the State to the Georgia Air-line Bailroad Company, and for other purposes,” provides that no railroad company in this State, shall, under any pretext, sell or dispose of any bonds issued to it by the State, or any of its own bonds endorsed by the State, at less than ninety cents in the dollar, in lawful money of the United States. And, in case any such company, to which the State has or may extend its aid, has or may, by any direct contract, or by any evasion or pretext, sell or dispose of, or attempt to sell or dispose of, any bonds issued or endorsed by the State as aforesaid, for less than ninety cents in the dollar, it shall be the duty of his Excellency, the Governor, to withhold all further issues of bonds to such company, and all further endorsements of the bonds of such company. And any citizen or tax-payer in this State, may appeal to the Courts iu his own name, to restrain such illegal use of the bonds so issued, or endorsed to said company; and to discover the fraudulent or illegal use made of such bonds by reason of which the credit of the State may be depreciated, and the burdens of the citizens increased.

This bill was filed under the foregoing section. And it is urged by the counsel for the defendant in error, and was so ruled in the Court below, that said section, as applied to any railroad company in this State, other than the Air-line Company, is unconstitutional and void, under the oth paragraph of the 4th section of the 3rd article of the Constitution of this State, which says: “ Nor shall any law or ordinance pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof.” It is contended that it was one subject matter to grant the aid of the State to the Air-line Railroad Company, and another and a different subject matter to authorize a citizen or tax-payer to file a bill to enjoin the Macon and Brunswick Railroad Company from receiving the endorsement of the State on its bonds, because it has sold such bonds at less han ninety cents in the dollar’.

In the view that we take of this case, we find it unnecessary to pronounce any judgment upon this point. The provision in the Air-line Act seems to us to be a proper one, as applied to that company, and one that might wisely be engrafted by the Legislature on every bill passed for a like purpose, when the State agrees to endorse the bonds of a railroad company, as a mere gratuity or loan. Should the State endorse or issue bonds in payment of a debt, or in liquidation of any just demand against her, she could, with propriety, impose no such restriction upon their negotiability, but when she makes a naked loan of her credit, it is not only proper but prudent to do so.

3. We are unanimously agreed that the 5th section of the Act aforesaid, if constitutional, confers upon a citizen or taxpayer no such powers as are attempted to be exercised by this bill. What are the rights or powers delegated to the citizen or tax-payer by this section, which are to be exercised by him, for the public good ? Simply to appeal to the Courts in his own name, to restrain the use, by the company, of the bonds endorsed by the State at a greater discount than ninety cents in the dollar’, and to discover any such fraudulent or illegal use made of the endorsed bonds, by which the credit of the State may be depreciated, and the burdens of the citizen increased. This is the whole scope and full extent of the power which this A.ct delegates to the citizen or taxpayer — not for his individual benefit exclusively, but for the benefit of the public. And to this single issue it is the duty of the Court to confine him in every case of this character which may be brought by the citizen or tax-payer under this section.

When the State makes gratuitous loans of her credit to a company, she should see to it that the bonds having her endorsement, are not sold at such discount in the market as will impair her credit or increase the burdens of her people by its depreciation. And to this end she acts wisely to make every citizen and tax-payer in the State her agent, to watch the sales of said bonds, and, in case they are sold at a greater discount than the law allows, to appeal to the Courts to restrain the further illegal use of the bonds, and to discover the fraudulent acts of the company in negotiating the bonds at a greater discount than the law allows. But this is the full extent of the power delegated, and the full extent to which it can be wisely delegated, and here its exercise must stop. It never was the intention of this Act to allow every citizen or tax-payer, who may feel inclined to intermeddle in other people’s business, to involve every railroad company in this State, which receives the aid of the State, in interminable litigation, by filing bills to inquire into all the acts of such companies, and to investigate matters which do not properly belong to the Courts, but to the Executive and Legislative departments of the government. What right have the Courts to inquire into the conduct and motives of the Legislature in passing bills of this character, or, indeed, of any other character, or of the Executive in executing them, or in issuing bonds in conformity to them ? No more than either of the other departments has to assume the functions of the Courts. Each is a separate body of magistracy, and neither has a right to encroach upon the legitimate functions of the other.

The Act under consideration has delegated no power to the citizen or tax-payer to file a bill to inquire whether the company has paid in the sinking fund, or whether the necessary subscriptions to the stock have been made, or whether the company is running its road upon the line intended by the charter, and the like. It is a question of public policy whether the State will endorse the bonds of any company, and upon what terms she will endorse, and to what extent. And it belongs to the law-making power to regulate all this, and to the Executive department to see that the restrictions imposed, whatever they may be, are complied with before the bonds are issued. But the law-making power may change or modify the restrictions or terms imposed upon the companies receiving the aid of the State as a guaranty, from time to time, as, in their judgment, the interest of the State requires, and neither the Courts nor any individual citizen has any right to interfere in any matter properly pertaining to the Legislative or Executive department. If larger powers on this] subject should, in future, be delegated to the private citizen, or to the Courts, it will then be time enough to exercise them. Till then, the Courts will not sanction any such interference.

The State has granted her aid by a loan of her credit to those great enterprises in consideration of the great importance to the people of their early completion, to open new channels of commerce, afford new facilities and conveniences to her population, develop her vast resources, and increase immensely the value of her taxable property. And the Courts should not, by assuming powers which belong to the other departments of the government, thwart this wise public policy, or sanction and encourage the captious objections of fault-finders, or the intermeddling of interested parties, who, to uphold the power and control of monopolies, seek to crush out all new lines of communication, which, as rivals, by affording better facilities to the people, may divide the business, and reduce the large profits of such companies as may heretofore have made the interests of whole sections of the State subservient to their own.

4. We think it was the duty of the Chancellor, even if a good cause for filing this bill had originally existed, to dissolve this injunction. This is purely a question of public policy, and not of individual right. This bill was not filed by these tax-payers to protect private right, but to enforce public policy by preventing public wrong. No decree could have been rendered in their favor as individuals. They were the agents of the State, acting at their own expense for the public, under the authority del egated by the Legislature.- And if they had not transcended their authority, it was the right of the Legislature, at any time, to put a period to the action by the passage of a resolution or act directing it to be dismissed, or ratifying the use made of the bonds of the company, and directing that others be issued to carry forward the construction of the road to completion as rapidly as possible. This is what is, in effect, done by the resolution passed by the General Assembly on the 28th day of July, 1869. When that resolution passed it put an end to this action.

Judgment affirmed.