Adams v. Mayor of Rome, 59 Ga. 765

Adams v. Mayor of Rome

59 Ga. 765 | Ga. | 1877

Bleckley, Judge.

1. Touching the power to contract and to acquire ■ and dispose of property, the charter of the city of Rome has the extent indicated in the first head-note of this opinion. See acts of 1817, §§5 and 13, pamph. pp. 51, 52, 53. No further legislation was needed to enable the mayor and council, in their discretion, to have water-works erected. So it was ruled by this court in 28 Ga., 50. In 19 Ib., 471, an unlimited power to contract, granted to the mayor and council of Columbus, was decided tobe sufficient to warrant the corporation in paying its debts by parting with railroad stock of which the city was owner. In the power to contract without limitation, a power to make sale of the corporate property for the payment of debts was thought to be included. A mortgage is not a higher class of contract than a sale, but rather, if any difference, a lower class. We can entertain no doubt *769that a contract of mortgage may be made under a grant of power to the mayor and council to make all contracts which they may deem for the welfare of the city. Besides this, there is an express authority to “ sell, alien, exchange, lease, convey in any manner whatsoever.” If the power to sell and convey stood alone it would probably comprehend the power to mortgage. 2 Kelly, 404; 3 P. Wms., 9 ; and see 1 Watts, 385. It was argued that some restriction on the powers of the mayor and council to dispose of the public property ought to be considered as implied from the nature of the property, and from the necessities of the public to be served by its use. Doubtless there is such an implied restriction, but its range is, and ought to be, exceedingly limited. The general rule is, that the mayor and council shall exercise their discretion as to what the city of Borne shall hold or not hold as a part of its corporate property. So, too, in respect to when its ownership shall begin and when it shall cease. An exception would prevail as to those things which are, by universal usage, common to all cities, such as the public streets, and as to those things, if any, which the particular corporation may be required by statute to have permanently. To have and keep water-works for the use of the city has not been made obligatory upon the mayor and council of Borne. The mayor and council could establish them at pleasure and discontinue or dispose of them at pleasure. Water-works are, in that city, upon the footing of ordinary corporate property, and as subject to the discretion of the mayor and council in respect to sale or mortgage, as would be a single cistern for water-supply, a fire-engine, a market-house, a public park or a city-hall. It might be very unwise and improvident to part with any of these with or without a view of supplying their places with others of like kind; but when the same charter that confers power to acquire property, confers power also to sell, alien, exchange or lease the same, or any part thereof, or convey the same, or any part thereof, in any way whatsoever, and to make all contracts deemed necessary for the welfare *770of the city, it is difficult to deny the power of disposition without at the same time denying the power of acquisition.

2. Though the charter of the city of Rome, as we have seen, was broad enough to empower the mayor and council to erect water-works, a special act of the legislature was passed in 1870, (pamph. p. 475) authorizing the issue of municipal bonds to raise money with which to pay for them, on condition that a majority of the qualifield voters of the city should, at an election held for the purpose, vote in favor of the measure. To engage the credit of the city even by negotiable bonds, a special act, in addition to the broad terms of the charter, was perhaps unnecessary. 52 Ga., 621. Compare 45 Ib., 323 ; 19 Wall., 468. Still, the special act was passed, and under it the bonds were issued and negotiated. With the proceeds of the bonds the waterworks were paid for. The holders of bonds received them without other express security than that afforded by the provisions of the special act. These provisions were, in substance, that all the property within the city, real and personal, should be subject to taxation, fro rata, for the payment of the interest and the redemption of the bonds, and the mayor and council were authorized to levy and collect, in addition to the general tax, a sufficient annual tax, not exceeding one-half of one per cent., to meet the interest as it fell due, and provide a sinking fund for the final ex-tinguishment and discharge of the principal. It is argued in behalf of the city, that the means of liquidation thus provided for by law are exclusive, and that, for that reason, the mayor and council could not devote the water-works, or any other property, to the payment of the interest or to the discharge of the principal of the bonds. We think otherwise. The special act was not intended, as it seems to us, to narrow or cut down the charter in respect to the power of disposing of the corporate property, or of applying the same to the corporate inde.btedn.ess by any contract deemed by the mayor and council necessary for the welfare of the city. Since this case was decided, the supreme court of the *771United States, in The United States vs. The County Court of Clark county, has made a decision bearing in some degree on the subject.

3. A further point made in behalf of the city is, that as the special act of 1870 required a consent vote by a majority of the qualified voters, as a condition precedent to issuing the bonds, a similar vote, or at least some vote of the citizens, would be necessary to enable the mayor and council to mortgage the water-works. We cannot discern any connection between the proposed conclusion and the premises from which it is sought to be drawn.

4. A supposed difficulty is urged in respect to enforcing legal process against municipal property by levy and sale. It may be conceded that a general judgment upon the bonds or the coupons could not be thus enforced, for the reason that what property the city should retain, and what devote to the payment of its debts, is not a matter to be determined by a levying officer, or even by a court, but only by the mayor and council. In the case of a mortgage, however, this high prerogative is, in fact,exercised by the mayor and coun oil. In executing the mortgage, the property on which it operates is deliberately set apart and consecrated to the payment of the debt or debts secured. From the power to mortgage and its due exercise, the right to have a judgment of foreclosure, on breach of the condition, follows as a legal consequence. Code, §§3962, 3968. A most vain and empty thing would be a mortgage without any means of bringing the property to sale. We will not say that the court, for good cause shown by answer in the nature of equitable plea, could not mould the order of sale so as not to precipitate a sale for arrearages of interest without affording reasonable time for raising, by taxation in the mode authorized by the special act, an adequate fund for dealing arrearages and keeping down accruing interest. There was, however, no answer presenting equitable matters in the case. In our opinion the court erred in refusing to grant a rule absolute and in dismissing the petition.

*772Cited by counsel for the mortgagees: (Validity of the bonds) 52 Ga., 621; 57 Ib., 370; 18 Amer. R., 253 ; Dillon on Municipal Bonds, passim ; (power to mortgage) Charter of Rome, § 5 ; 28 Ga., 50; 2 Coldwell, 645 ; 15 Iowa, 394 ; 31 Penn., 183 ; 21 How., 424 ; 17 Barb., 378 ; 15 Ib., 238 ; 3 Camp., 238, 242 ; City of Memphis vs. Fisher, Law and Eq. Reporter, May 12, 1877; 43 Ill., 424; 1 Rawle, 131; 6 Am. Law, 413; Sugden on Pow., 1st Amer. ed., 478 ; Powell on Mort., ed. of 1828, pp. 81, 82, 161; 6 Texas, 102; Kent’s Com., mar. p. 148; 2 Kelly, 383; Cooley C. L., 240 to 253; 3 Hill, 531; 2 Denio, 433 ; 3 McL., 580; 15 Barb., 238 ; 64 N. C., 218, 225 ; 2 Cal., 524; 4 Ib., 127, 193 ; 5 Ib., 306 ; (levy and sale) 15 Cal., 586 : 6 La., 572; (cumulative remedy) 12 Conn., 528 ; 5 Cowen, 165 ; 13 Maine, 371; 58 Ga., 534.

Cited by counsel for mortgagor: (Taxation exclusive — no power to mortgage) Dillon M. C., §§273, 653, 686-7, 784; 1 Term R., 118 ; 6 Rich. Law., 404; 9 Wend., 571; 6 Ind., 403, 249 ; 4 Ib., 435 ; 7 Ib., 35 ; 9 Ib., 283 ; 43 Penn., 400 ; 20 Cal., 102, 108-9; 35 Mo., 341; 2 Dutch., 398; 6 Mass., 40 ; 24 Miss., 243 ; 3 Head, 596 ; 15 Wis., 37 ; 16 Ib., 288 ; 5 Ohio, 520 ; 9 Ham., 543 ; 4 Ohio, 685 ; 2 Porter, 296 ; 37 How. Pr. R., 158-9 ; (trust — no power to mortgage) acts of 1870, pp. 485-6 ; Dillon M. C., §§64, 65, 93, 94, 381, 396, 444 to 447, 614, 615, 727-37; 3 B. Mon., 440 ; 7 Ib., 681; 8 Dana, 50; 16 Barb., 107 ; 17 Wall., 328 ; (levy and sale) Her. on Ex., §§364-5 ; Freem. on Ex., 126 ; 28 Pa., 210 ; 60 Ib., 27 ; 36 Ib., 126; 1 La. An., 435 ; 7 Ib., 148 ; 27 Vt., 71; 23 Ib., 93; 12 Ind., 620; 25 Ill., 595 ; 31 N. Y., 164; 64 N. C., 224; 15 Cal., 530 ; 24 Ib., 585 ; 36 Ib., 220 ; 21 Ib., 668; 11 Mo., 59 ; 18 Ib., 277; 24 How., 383 ; 19 Wall., 660 ; 37 How. Pr. R., 499; 10 Cal., 405, 410; 8 Ib., 57, 58 ; 34 Ib., 290-1; 15 Ga., 309; 28 Ib., 50.

Judgment reversed.