Bass v. Mayor of Columbus , 30 Ga. 845 ( 1860 )

By the Court.

Lumpkin, J.,

delivering the opinion.

On the 11th of December, 1858, the Legislature passed an Act to make valid and binding the subscriptions theretofore made by the Mayor and Counsel of the City of Columbus to the stock of the Mobile & Girard Eailroad Company, and to the stock of the Montgomery and West Point Eailroad Company; and to make valid and binding the bonds issued by the said Mayor and Council, to said companies in payment of the same; and to declare and make valid the ordinances theretofore passed by said Mayor and Council, authorizing the collection of taxes for the payment of interest accruing on said bonds; and to authorize the Mayor and Council of said city to levy and collect a tax annually for the purpose of paying the principal and interest on said bonds; and to authorize the collection of taxes for the payment of the principal and interest of all legal contracts which have been or may thereafter be made by said corporation.

And the Act reads, that, “ Whereas, the Mayor and Council of the City of Columbus in public meeting assembled, have acknowledged the validity of the contracts made before that time, by which said bonds and coupons were issued, and have recognized the obligation which rests upon said corporation to pay the principal and interest of said bonds as the same may become due.” Pamphlet Acts of 1858, p. 131.

It is apparent, then, that if the Act is valid and constitutional, the plaintiffs in error have no ease. Is the Act valid and constitutional?

This case is important from the magnitude of the principle involved, and has received at our hands the most deliberate and patient investigation. Did opportunity permit, it might not be unprofitable to examine the power of the State to create corporations, and the powers that may be extended to them. We think, however, that the principles regulating and controlling the questions debated in this case, may be limited within a narrow range.

Corporations in Georgia exist only by statute; and it can only exercise those powers expressly granted and which result by necessary implication. In this case there is no doubt of the amplitude of the grant.

Courts on the construction of charters never confine themselves to the letter, but whatever is necessary and proper to carry into execution the power conferred is always conceded. Here the power attempted to be exercised is not implied; on the contrary, it is expressly given.

Corporate purposes have been divided into direct, such as police regulations, the construction of streets, supplying the town with water, etc.; and indirect, such as canal and railroad improvements, by which the commerce and business, and general improvement and prosperity of the place, is promoted. And one of these objects is as legitimate as the other.' Is there anything illegal or against common right for a town to engage in such enterprises ? With the lights of experience before us, it is useless to argue in favor of such a proposition ; and if a majority of the community to be affected are desirous of doing this, and the Legislature will grant the power, upon what principle shall the few interfere and arrest such works? Shall it require the unanimous consent of the inhabitants of a town before such power shall be exercised ? It would annihilate the privilege. And if a number less than the whole shall suffice, who but the Legislature shall-decide upon the plus or the minus ? It has been wisely bestowed upon the majority.

But it is argued that these corporate powers, if not confined to the limits of the corporation, should certainly not be extended to corporations situate outside of the State. Did - not the State itself extend its own railroad beyond its own limits? And why may not a municipal corporation do this,. in order to make the outlay profitable ? What signifies it, whether a road beginning at the city of Columbus is extended into the interior of Alabama or Georgia? The only question is, which will bring the largest amount of trade and travel to the city of Columbus. Suppose the city, for the promotion of the health of the city, should determine to supply it with water, and the only supply was from the highlands on the other side of the Chattahoochee river, would there be anything immoral or illegal in making a contract for this purpose ? The interest of the corporation is the only true test of the corporate character of the act. Suppose the Legislature were to authorize the city of Savannah to subscribe for stock to incorporate a company to establish a direct trade between Savannah and Liverpool, Canton or Calcutta, I am not prepared to say that such Act would be void.

The operations of the Mobile & Girard and Montgomery & West Point Railroads may be without the State even; the benefits are experienced within the city of Columbus. Suppose there was an obstruction in the Chattahoochee river which impeded its navigation and cut off the commerce of Columbus; and further, that the river lay within the limits of Alabama: might not the city by the authority of the Legislature raise, by taxation, a fund to remove the impediment? The work might be done beyond the limits of the State— the consequences or effects of it would be felt throughout the heart of Columbus, and in every ward of the city.

And who is the proper judge, whether any proposed measure will conduce to the public interest of the city ? Not the Courts, surely, nor the majority of the people acting through their Representatives in General Assembly; but a majority of the corporation, acting under the sanction of the Legislature. The people of each community or municipality know ydiat is best for them.

But it is said that the Act of 1858 is retroactive, and if not unconstitutional, is opposed to the principles of natural justice and free government, and is therefore void.

There is great difficulty in determining what are the principles of natural justice, and that which tends to undermine what theorists may suppose to be the fundamental principles of the social compact; and I am aware that it has been declared by Judges of Courts of the highest respectability, that retroactive provisions which take away or impair vested rights, are inoperative. But then, on the other hand, there are not wanting the names of the most distinguished jurists and Courts of the highest authority, who deny to the judiciary any right to treat retrospective acts as void. Calder vs. Bull, 3 Dallas, 386; Satterlee vs. Matthewson, 2 Peters, 280; Osborn vs. Huger, 1 Bay, 179; Fletcher vs. Peck, 6 Cramh, 135; King vs. Dedham, Burk, 15, Mass. Rep., 447; Wales vs. Stetson, 2 Mass. Rep., 143; Society for the Propagation of the Gospel vs. Wheeler, 2 Gallis, 105; Cochran vs. Van Surlay, 20 Wendell, 365; Senator Buplank’s Opinion; Butler vs. Palmer, 1 Hill, 324; Charles River Bridge vs. Warren Bridge, 11 Peters, 420; American Jurist for October, 1833, p. 277; Allen vs. McKeen, 10 American Jurist, 273 to 297; Barrick vs. Smith, 5 Paige Ch. Rep., 157; 1 Bl. Com. Christian’s Notes, 91.

In the present case, we must say that we see nothing in this Act so unjust or oppressive as to make it our duty to resort to this extreme, doubtful and dangerous power of pronouncing it void. Our cities all over the State and country have frequently contributed, in their corporate capacities, to roads, canals, and other improvements, without exciting alarm or being suspected of oppressing their communities, or of invading unjustly any salutary principle of the social system. And we cannot shut our eyes to the fact, that much of their prosperity depends upon the extent and facilities of their intercourse with the interior as well as with distant and foreign places. True, these schemes sometimes prove visionary, and thus bring loss upon the property holders. But that must always be a question for the corporation itself, and not for the Court. There the battle must be fought between the sanguine and hopeful on the one side, and the saturnine and contras on the other. Once decided by the majority, the minority must submit, provided the majority does not transcend its chartered powers. From the beginning of society to the present time, the warfare has waged incessantly between majorities and minorities as to their interests and their rights. The levying and collecting of taxes is always a compulsory act of the majority and generally very ungraciously submitted to by the minority. The present case is not unlike thousands that have preceded it, and there is nothing new under the sun.

But it is said, that if the proceedings of the Council were void under the previous Act of 1857, they cannot be rendered effectual by a subsequent confirmatory Act of the Legislature. But there can be no difficulty in the present case. The city asks for legislative interference to give validity to its previous Acts, and not to perpetuate their infirmity. To comply with the wishes of the city was the object of the Legislature in passing the Act of 1858, not to defeat said wishes. The end of all confirmatory laws, so far as they are retroactive, is to give effect to acts which were before inoperative. Our Digests abound with statutes confirming the void acts, of public officers and others occupying some fiduciary relation and that such is the proper effect of such laws, was adjudged by the Supreme Court of the United States in the case of Wilkinson vs. Leland, 2 Peters, 662.

Believing, then, as we do, that the judiciary is not the guardian of the Legislature, and that it possesses no veto powers over its constitutional acts, we cannot disregard and thrust aside the Act of 1858, merely because it is retroactive in its purposes and effect.

As to the other minor questions made in the record, they were abandoned in the argument. Had they been insisted on, there is none of them entitled to receive our continuance and favor.

We affirm the judgment of the Circuit Court.