Covington & Macon Railroad v. Mayor of Athens

85 Ga. 367 | Ga. | 1890

Blandford, Justice.

This was an action brought by the plaintiff in error to recover of the defendant in error some nineteen thousand dollars which the plaintiff alleged that the defendant was indebted to it by reason of a certain contract entered into between the parties, in which the defendant promised to secure for the plaintiff a right of way through the city of Athens, together with certain lots of land therein, in order that the plaintiff might lay down its railroad through said city and connect with the Northeastern railroad; plaintiff alleging that at the special instance and request of defendant, it purchased said lots and the right of way and built its railroad through said city at a cost of over nineteen thousand dollars.

It is insisted that the city of Athens had authority to make this contract by virtue of its charter (under §15 thereof), which gave to the Mayor and Council of the City of Athens authority to pass all ordinances respecting the streets of said city, to lay out the same, or to pass any other regulation or ordinance that should appear to them necessary and proper for the security, welfare and interest of said city. We see no authority granted to the city under this section of the charter which would authorize the city to make the contract set out in the plaintiff’s declaration. S.ee Acts of 1872, p. 131. The city would have no authority, without an act of the legislature at the time the city was chartered, to make any subscription to the capital stock of a railroad company, to make any donation to the company, or to pay for the right of way to be used by said railroad. The authority granted in the charter to pass ordinances in relation to the streets of said city, or to open and lay out streets in the city, has no reference whatever to the road-bed of a railroad company; and since the adoption of the constitution of 1877, the legislature can grant no such authority to this city, or to any other city or town in this State. Art. 7, sec. 6, par. 1, of the constitution of this State (Code, §5189) prohibits the General Assembly from authorizing any county, municipal corporation or political division of this State to become a stockholder in any company, corporation or association, or to appropriate money or to loan its credit to any such company, corporation, association, institution or individual, except for purely charitable purposes. It cannot be said that the money which the railroad company claims to be due to it from said city is money due for a purely charitable purpose, but the same is claimed to be due for the interest and purposes of the railroad company itself. "We do not think the declaration sets forth such a cause of action as would entitle the plaintiff to recover; and the demurrer thereto was rightly sustained by the court. This is not a case in which there is anything in the hands of the defendant which it has received or made by virtue of this illegal contract, so as to come within the rule claimed by the plaintiff in error, that inasmuch as the railroad company had to perform its part of the contract, the city cannot be allowed to retain any benefit which it received by virtue of said contract. But inasmuch as it does not appear, or is alleged in the declaration, that the city has received any benefit by virtue of this contract, even if such a doctrine could be applied to a case like this, the contract which is sued upon appears to us to be void as contrary to the public policy of this State, as declared by the 7th article of the constitution above set out. Judgment affirmed.