36 Ala. 410 | Ala. | 1860
1. The constitutionality of the legislation, under which the city of Mobile has obliged itself to aid the Great'Northern railroad, is assailed, as not being a legitimate exercise of the taxing power, but a talcing of private property without just compensation, even if the use for which it is taken be public.
This subject has undergone much aud earnest discussion in many of the States composing this Union ; and however grave the subject might be regarded, if it were an open question, we feel bound to consider it, in this State, res adjudicata. In coming to this conclusion, we are not unmindful of the opinion, which must obtain some credence, that we run counter to some of the arguments and illustrations found in the case of Sadler v. Langham, 34 Ala. 311. The principle we are discussing, however, was settled and re-asserted in this court, -long before the case of Sadler v. Langham came up; and on a question involving such momentous results, as does this — one in which the public welfare is so deeply,concerned — we feel it our duty to adhere to the rule, stare decisis.
In the case of Stein v. The Mayor of Mobile, (24 Ala. 591,) a question very like the one we are considering w.as directly presented. "This court reviewed many adjudged cases of sister States, pronounced on the identical question involved in that case and this; and,in a most elaborate opinion, decided, “that the acts authorizing the city authorities of Mobile to levy a tax on the owners of real estate within the limits of the city, to aid in the construction of the'Mobile and Ohio railroad, were constitutional ;” and that although the only legitimate object-of taxation is the support and maintenance of government, yet this purpose embraces a wider range than the mere machinery employed in its administration : that the power authorizes the employment of the necessEiry appliances to augment the aggregate wealth and prosperity of the inhabitants of the city; aud that this may be accomplished by providing outlets for commerce, opening channels of intercommunication with other parts of the State, &c. The Mayor &c. of Wetumpka v. Winter, 29 Ala. 651;
The question submitted to the voters of Mobile, in this connection, was, whether they would aid by taxation upon all property subject to taxation, at a rate not exceeding two per centum per annum, for five years, or by the issue of city bonds, for an amount not exceeding one million dollars. — Ramph. Acts 1857-8, 165. The aid determined on and rendered in this case was by bonds, not exceeding one million dollars,
In what we have said above, we have considered this question without any reference to legislative restraints resting on the mayor, aldermen and common council of the city of Mobile. The 13th section of the act approved 11th February, 1843, (Pamph. Acts, 116,) declares, “ That from and after the first day of November, A. D. one thousand eight hundred and forty-three, and after the issuing of the obligations provided by this act, it shall not be lawful for the corporate authority aforesaid to issue, in any assignable form whatsoever, any bonds, promises to pay, or city orders, or any form whatsover of promises to pay, transferrable from hand to hand, nor to enter into any contract for the payment of money, unless the means for the payment of the money so contracted to be paid shall be specifically provided at the time of making such contract.” The present bonds are covered by said 13th section of the act of 1843; were issued after the 1st day of November, 1843, and after the issuing of the obliga)
"We go beyond the merits of this case, and assert that, in the exercise of a discretion vested in’"the city authorities, as to the plan of providing means for the payment of the interest and principal on the bonds issued for the railroad, we are impressed with the prudence and wise economy which seem to have presided in their deliberations. While it is obvious that the burden has been distributed over a period of' about twenty-five years, in such manner as that the assessment shall be uniform, and at no time oppressive; the light is preserved of applying, at the end of each year, the accruing surplus to the extinguishment of the principal of the bonds; the surplus, for this purpose, being each year increased, by an amount corresponding with the progressive diminution of the annual interest. In this way, all the trouble, risk and expense of an accumulating sinking-fund have been avoided.
For the appellants it is contended, that the bonds brought to view in the present record are the creation of a new debt, for purposes of .profit and improvement; and, inasmuch as the present contract was entered into without a full, attendance of both boards at a time when there was no vacancy in either, and none dissenting to the act, the argument is that the present contract must fall to the ground. The appellees contend, that if section 9 of the act of 1843 be not repealed, then the provisions of that section must be confined to acts of borrowing money, and the creation of new debts, within the powers of the city government as they then existed; and that that section does not reach or control the exercise of powers conferred on the corporation by subsequent legislation. They contend further’, that the acts of 1858 and 1859 confer authority to create a debt for a specified purpose; and that this creation of a new power, without specifying the mode of its exercise, must be understood as so far repealing the 9th •section-of the act of 1843 as to allow the making of the present contract, in the mode and manner poiutecT'out for the performance of acts of "municipal legislation and government.
The act of 15th January, 1844, “to consolidate the several acts of incorporation of the city of Mobile, and to alter and amend the same,” expressly preserves, and exempts from repeal, the act of 11th February, 1843. Pamph. Acts 1843-4, p. 191, § 48.. The 9th section of the act of 1843 is not, then, directly or expressly repealed.
We can not assent to the argument,, that tide acts of 1858 and 1859 repeal, or in any manner impair, the ’9th section of the act of 1843. The acts of 1858 and 1859 are silent as to the mode and solemnity ..which shall attend the official actings and doings of the city authorities, under their provisions. There is no incompatibility between the acts of 1858 -and 1859, and the 9th section of the act of 1843. Both can stand together, and each can be executed without trenching on the other. So clearly is this the case, that if section 9 of the act of 1843
Neither can we assent to the argument, in its unqualified terms, that the regulations prescribed in section 9 of the act of 1843 must be confined to the powers which the city government was then authorized to exercise. Its language is, “after the passage of this act.” Its terms embrace all the contracts for the purchase of real estate, all borrowings of money, and all contracts by which new debts shall be created, for purposes of profit or improvement. If the language, of the act of 1843 had been, that the city authorities should not borrow money, nor create any new debt, except for the maintenance of the city government, we should unhesitatingly declare that its provisions embraced this case. What then, we may inquire, was the purpose of the present debt? Was it profit or iviprovement, within' the meaning of the 9th section of the act of 1843? We answer this' question in the negative, and think the following argument and illustration will demonstrate the correctness of our answer.
It is the settled doctrine of this country, that corporate powers are of three kinds: express, incidental, and implied powers. This doctrinéis asserted in the following decisions of this court: City Council of Montgomery v. Montgomery & Wetumpka Plank-road Co., 31 Ala. 83; Ex parte Burnett, 30 Ala. 461; Intendant, &c. v. Pippin, 31 ib. 542, and authorities cited. See, also, Ang. & Ames on Corp. §§ 256-7; Grant on Corp. 13, in margin; Mayor &c. v. Winter, 29 Ala. 651. It is also well settled, that the light to aid in the construction of a railroad, plank-road, &c., lying without the limits of a municipal corporation, is not within the pale of either implied or incidental powers of such municipal 'corporation; but must be
Another view: The 9th section of the act of 1844 is a regulation of the power to borrow money, and to'create' new debts, for purposes of profit and improvement. This is a legislative recognition of an existing power in the city government; for the legislature would not perform the senseless ceremony of regulating the exercise of a power which had no existence. The city authorities, then, possessed the power, which the legislature, attempted, in the 9th section of the act of 1843,' to regulate. The power they were regulating was the power to borrow money, and to create new debts, for purposes of profit ,and improvement. Now, if the regulations prescribed in the 9th section of the act of 1843 be broad enough to cover the contract entered into between the city and the Great Northern railroad, it is difficult to resist'the conclusion, that the city authorities would have been authorized to furnish aid to the railroad, without further statutory authority therefor. In other words, the .phrase for purposes of proñt or improvement, in' an enabling clause, would certainly be as comprehensive as the same language would
[9.] The only remaining question which we propose to-discuss, arises, out of the fact that several members of the two boards — the aldermen and common council of the city of Mobile — were also, at the time of the contract, stockholders in the Great Northern Railroad; being, as-it is alleged,- both bargainors and bargainees. It is not pretended that any bad faith was practiced by the contracting parties; but the argument is, that this contract should be set aside on grounds of public policy. The-rule governing contracts between trustees and beneficiaries is invoked. — See Gilmer v. Calloway, and Payne v. Turner, at the present term. The appellants also invoke! the rule which prohibits a party from being a judge in-his own cause. — See Wilson v. Wilson, at the present term ; and Dimes v. Grand Junction Canal, 16 Law & Eq. 63, 73.
In the great case of Ranger v. Great Western Railway Company, before* the British House of Lords, (27 Eng. Law & Eq. 35,) Ranger, the appellant, had become a very extensive railway contractor'with the company. By the terms of the contract, many matters were made to depend on the decision of the engineer appointed by the company. Mr. Brunei was the engineer. The bill was filed: by Mr. Ranger, alleging an improper discharge by Mr. Brunei of his powers as'a judge or arbiter in the premises; by which, the complainant alleged, he had lost many thousand pounds sterling. He further alleged, that Mr. Brunei was a stockholder in the company, and was, therefore, not indifferent in the premises; and that he (the complainant) had not known this fact, until recently before the bill was exhibited. One question considered •was, whether Mr. Brunei was incompetent, by reason of his interest, to adjudicate the matters which the contract referred to the decision of the company’s engineer. Opin.
In delivering his opinion, Lord Cranworth said: “When it is stipulated that certain questions shall be decided by the engineer appointed by the company, that is, in fact, a stipulation that they shall be decided by the company. It is obvious that there never was any iutention of leaving to third persons the decision of questions arising during the progress of the works. The company reserved the decision for itself, acting, however, as from the nature of things it must act, by an agent; and that agent was, for this purpose, the engineer. His decisions were, in fact, their decisions. The contract did not hold out, or pretend to hold out, to the appellant that he was to look to the engineer'in any other character than as the impersonation of the company. In fact, the contract treats his acts and their acts, for many purposes, as equivalent, or rather identical. I am, therefore, of opinion, that the principle on which the doctrine as to a judge rests, wholly fails in its application to this case. The company’s engineer was not intended to be an impartial judge, but the organ of one of the contracting parties. The company stipulated, that their engineer for the time being, whosoever he might be, should be the person to decide disputes, pending the progress of the works; and the appeUaut, by assenting to that stipulation, put it out of his power to object, on the ground of what has been called the ‘ unindifferency ’ of the person by whose decision he agreed to be bound. It is to be observed, that the person to decide was not a particular individual, in whom, notwithstanding his relation to the company, the contractor might have so much confidence as to agree to be bound by his award; but any one whom, from time to time, the company might choose to select as their engineer. The appellant alleges, that he did not know the fact that Mr. Brunei was a share-holder, until more than two years after the works had been begun. But he must have known that the company had it in their power to appoint another engineer in Mr. Brunei’s place, who might hold shares; or that Mr. Brunei himself might purchase shares.”
In the case of Haight and others v. Day, (1 Johns. Ch. 18,) a charter had been granted for a bank, which appointed certain commissioners to receive subscriptions for stock; and empowered them, in case an excess of stock should be subscribed, to apportion the excess among the several subscribers, as they (the commissioners) should judge discreet and paroper. A large excess was subscribed, and the commissioners proceeded to exercise their power of apportionment A bill v?as filed to vacate the alleged apportionment, which charged, that the commissioners had arbitrarily assigned the shares among themselves, their relations, favorites, &c., and had excluded other equally meritorious subscribers. There was, also, a charge of bad faith; but this was denied by, the answer. Chancellor Kent ruled, that “the-word apportion must mean, here, to assign to each subscriber, or give him, such portion as the commissioners deem meet.” The charge of corruption, and of wanton and unworthy exercise of discretion, being repelled by the answer, he dissolved the injunction.
A similar decision was made by Chancellor Walworth, in a most elaborate opinion, pronounced in the case of Walker v. Devereaux, 4 Paige, 229. See, also, Com. v.
We think, that the power conferred on the corporate authorities of the city of Mobile, to aid in the construction of the Mobile and Great Northern railroad, under such contract with said Mobile and Great Northern Railroad Company as said city authorities might agree upon, must be construed as conferring tbe authority to make the contract on whoever may be the mayor, -aldermen and common council of said city, at the time the contract is entered into; and that, in the absence of actual bad faith, the fact that certain members of the boards' of aldermen and common council are also stock-holders-in tbe rail-road company, does-not, per se, invalidate the contract.
The decree of the chancellor, dissolving the injunction, is affirmed.