Danielly v. Cabaniss

52 Ga. 211 | Ga. | 1874

McCay, Judge.

1. A municipal corporation, in its very nature, is but a branch of the government. Its object, in this country, has always been to exercise governmental powers in such detail as it would be inconvenient and unwise to commit to the legislature: Code, sec. 1672. The advancement of education is not only by the bill of rights (constitution, article 1, section 27,) declared, in effect, to be one of the objects of government, but there is a special article in the constitution devoted to this subject :• Art. 6. No student of the history of this country, from the earliest settlement to the present day, can fail to see that, to furnish facilities for the education of the people, it has not ouly been the constant practice of both the state and the corporate organizations,, to engage in projects for the advancement of education, but that tins has been a favorite and preferred object; and it seems io us that more permanent good lias come to the country from this application of both state and municipal funds than from any olher use of such funds. Nor is this merely an American idea. Some of the very earliest and most flourishing foundations for the advancement of education in England were made by the corporation of London. Even amid the troubles of the Protectorate, during- the minority of Edward VI., “the mayor and aldermen repaired and refitted the .House of Gray Friars, for the education of poor children, under the name of Christ’s Hospital:” Froude’s History of England, vol. 5, p. 368. And it is well established by authority, that the building of hospitals, schoolhouses, etc., are within the sphere of the ordinary jurisdiction of a municipal corporation. That the corporation has vested the management in trustees is only a matter of discretion, and where the object is a public one, and private gain not the purpose, we think such a discretion wise and proper. The trustees in this case undertook to keep up the school. No profit accrues to them. The house is the necessary thing; the public may well furnish that, leaving the school to support itself.

2. There is nothing in the constitution prescribing the time of the assent of the people to an act of the legislature authorising the corporation to engage in a public work. The language is just as applicable, perhaps more so, to the idea that the vote is taken before the act, as the contrary, and there seems to be no reason why either way does not conform to the constitutional provisions. The main idea is to know that the enterprise is approved by the people, by a formal election held under proper rules. In the case of a town or city, where there is a perfect machinery for the purpose, there is just as much, and perhaps more, propriety in coming to the legislature1 with the will of the people already ascertained, as to get the act and then learn if the object be approved by the people.

3. There seems to be no law, or rule of either house of the general assembly, providing any mode in which it is authoritatively to be ascertained when a bill is presented to the governor for his signature. And the practice on the subject is not uniform. • The fact ought in some way to appear of record, and on the act itself. Some of the governors seem to have made an entry on the enrolled bill; others have left it to the legislature to preserve the evidence. There ought to be legislation on the subject. The facts in this case, we believe, are that the governor made no entry, and none was made by the house. At a subsequent session of the same legislature the matter was inquired into by a committee, and the act in question, after a report of the committee, was declared to have been duly enacted and become a law by the failure of the governor to dissent within the constitutional period, the bill having been passed and presented more than five days before the adjournment. We think this is sufficient authentication of the fact and that the bill was duly passed. Nor do we agree that the 10th section of the act of August 26th, 1872, is in violation of that clause of the constitution requiring all acts to contain but one subject matter, and to conform to the title. The title of the act is to amend the charter and the other acts amendatory thereof. This is a very large title, and may well include anything increasing, lessening or confirming the powers, or asserted powers, of the town. It would make legislation almost interminable, if every amendment of the charter of a town were required to be in a separate act. Whatever fairly comes within the scope of an amendment to the charter, may, as we think, well be taken to come within such a title. The subject matter is the power and corporate authority of the town — all constitutes one subject matter that may fairly be included within this idea. However doubtful, therefore, may have been the. original authority to issue these bills, their issue has been legalized by the legislature. The objection that they were illegal, as falling under the act prohibiting the issue of a circulating medium, is covered by the same sanction. The state may, by its legislative department, sanction and condone a public wrong. Though we doubt if under the acts of 1841, 1851, 1852, 1855 and 1856, making such issues illegal, the illegality of the issue is any objection or excuse for the non-payment of them. These acts are not fully codified in the Code, and under a fair construction of them, it is not by any means clear that the illegality of the issue is a good defense to a suit upon them.

4. As under the law these change bills are not illegal, as it cannot be objected to them that the city had no authority to issue them, it is not the duty of the courts to inquire into the propriety of the issue. That, under the law, is the function of the officers of the town, and it requires a very strong case to invoke the interference of the courts, with the exercise of the discretionary powers of a corporation. Nor can it be set up as against the bona fide holders of negotiable papers of this character when the city has authority to issue, that the details of the law have not been conformed to.

5. Upon the whole, whilst we recognize that there has been irregularity in many of the acts of the city council in the matter complained of, yet, there is not such illegality as justifies a refusal to pay the .debt contracted, and we affirm the judgment.

Judgment affirmed.