11 Wis. 470 | Wis. | 1860
By the Court,
In the case of Clark vs. The City of Janesville, the majority of the court held that the charter of that city was a public, and therefore a general law, with
The charter of the city of Madison was not published until after the issue of the bonds, whose validity is questioned in this suit, and the case would, therefore, be governed by that decision, unless, as is claimed on the other side, the city, after it did acquire an existence as such, by the publication of the charter, did some act ratifying the issue of the bonds, so as to bind itself. This ground of objection is one of a technical character, and although it must prevail where the case comes within it, yet a stronger case could not well be presented, for applying the doctrine that a subsequent ratification will render valid, acts that in point of strict law were unauthorized when they were done. This is. a familiar rule in the case of individuals. If a man without any authority assumes to act as the agent of another, although the act, as to the other is of no validity, yet if he subsequently ratifies it, and adopts it, and receives the benefit of it, he is as much bound as though he had authorized it in the first instance, And we think this principle applicable to this case. Here every thing was done necessary to authorize the issuing of the bonds, except the publication of the charter, all the parties, however, supposing it to be in force. If, after it was in force, the city received the proceeds, and appropriated them to its use, and recognized the validity ,of these bonds, we could not well imagine a case more fit for the application of this rule-And we think the following authorities fully justify its application : Charitable Society vs. Episcopal Church in Dedham' 1 Pick., 372; Edwards vs. The Grand Junction Railway Co., 7 Sim., 85, Goodey vs. Railway Company, 16 E. L. and Eq., 596. In the last case the Master of the Rolls, referring to the previous cases, says that they “ establish 'the principle that whenever a third party enters into a contract, with the plaintiff, and the defendant takes the benefit of it, he is bound to
It appears from the evidence that the proceeds of the bonds went into the treasury of the- city, and were expended by it, and that after the charter was in force, their validity was recognized by levying a tax for the payment of the interest. We think this ratifies them, and binds the city, provided it would have been bound, if the charter had been in force at the time they were issued. .
But it is claimed that the city had no power to make this loan, or issue its bonds therefor. There is no special act and no provision in its charter expressly authorizing it, and it was said that without this, the power to borrow money did not exist, and could not be claimed as incidental to the execution of the general powers granted by the charter. The charter does confer the power to purchase fire apparatus, cemetery grounds, etc., to establish markets, and to do many other things, for the execution of which, money would be necessary as a means.. It would seem, therefore, that in the absence of any restriction, the power to borrow money would pass as an incident to the execution of these general powers, according to the well settled rule that corporations may resort to the usual and convenient means of executing the powers granted; for certanly no means is more usual for the execution of such objects, than that of borrowing money. But an argument against the right is derived from the practice which has prevailed to a considerable extent, of obtaining special
We are not aware to what extent, if any, this practice has prevailed in this state, as to loans for purposes clearly municipal, and authorized by the charter; but it seems to have been resorted to sometimes, even in such cases, in other states. The argument drawn from the assumption on the part of the legislature of the necessity of such acts, is one always entitled to consideration, and sometimes of much weight, though never conclusive; and we think, owing to the peculiar nature of the subject matter, that in cases involving a loan by corporations, it is of less force than in almost any other, for capital is of a timid jealous disposition. It delights in certainty, and is alarmed by doubts. It has been held with great strictness, that corporations can exercise no powers except those granted by their charter. When, therefore, the charter does not expressly give the power of borrowing money, even though it grants powers to which this might be claimed as incident, yet there is room for doubt, a chance for an argument, and that being so, it might, as a matter of policy, facilitate the loan by removing all uncertainty by an express act of the legislature. And the fact that such acts have been passed, being then clearly necessary, when these corporations have been authorized to issue bonds in aid of purposes outside of their charters, may have had a tendency to induce a resort to the same practice when the bonds were issued for some purpose authorized by the charter, though in that case such legislation may not have been necessary. For these reasons we think there is nothing in this practice sufficient to overthrow the general rule, that in the absence of restrictions, a corporation authorized to contract debts and to execute undertakings requiring money, may borrow money
This question is alluded to in Ketchum vs. the city of Buffalo, 4th Kern., 356, and the court held that the fact that in several other instances, the legislature had expressly granted power to corporations to “ purchase market lots,” did not justify the conclusion that the city of BufFalo could not exercise the power as incidental to the general power of establishing a market. The court held that under that general power, it might purchase the lot on credit, and issue its bonds in payment. And, after carefully considering the suggestions made by the learned judge who delivered the opinion, we fail to perceive any substantial distinction, so far as the question of power is concerned, between the method there adopted and that adopted by the city of Madison in this case. True, it is there suggested that the question whether the city of Buffalo could have borrowed the money and paid for the lot, and issued its bond for the money, was a different question, though at first view “ they might seem identical.” But on examining the points of distinction stated, we think they do not affect the question of power, but simply go to show that the one method of exercising it may afford less facility for a misapplication of the funds than the other. Thus it was said that if the money was borrowed to build a market, it might be used to build a theatre, whereas if the contract were directly for the market, and the bond given in payment, it would ensure the application of the fund to its legitimate object. This might be a good reason why the legislature should restrict the corporation to the one method of accomplishing the object; but when the power is granted without restriction as to the means, it does not, in our opinion, justify a court in saying that while the corporation has the power of using one means, it has not that of using another, though equally direct and well adapted to the accomplishment of the object,
Nor is the power of taxation conferred by the charier to be deemed to exclude the power of borrowing money. The case just referred to is an authority against such a proposition. It holds that, notwithstanding the power of taxation, the corporation may resort to its credit, not only for its ordinary-current expenses, but for objects of a permanent character. The case of Clark vs. School District, 3 R. I., 199, is also in point. It was there held that a school district might borrow money to pay debts contracted for the erection of a school-house, and give its note therefor, and that its power of taxation was
The principle of that decision would seem to warrant the proposition, that where a corporation has power to borrow myney, a lender, acting in good faith, and supposing it to be
It is also objected that the assessors did not meet for the purpose of hearing objections, as required by the charter. We are unable to say from the evidence that this objection is true in point of fact. It appears from the evidence on both sides that the assessors did meet, and the most that can be said is, that it does not appear that they were all present at any one time. We shall not attempt to determine what would be the effect of an entire omission of this meeting by the assessors. It is undoubtedly a matter of much difficulty both upon principle and upon authority, to determine with what degree of strictness the directions of the statute in re
And this disposes of the objection now under consideration, and also of the one that the tax list was not returned to the county treasurer within the time required" by law. Neither of them necessarily impeach the justice of the tax, and there is nothing in the case to show that the complainant was especially aggrieved by either. And we do not think he can sustain a suit in equity to enjoin the collection of a tax legal and just in itself, merely on account of such irregularities.
We will notice but one other objection, which might properly have been noticed before. It is said that the cemetery • bonds were issued in violation of law. And it appears that by sec. 3, chap. 104, Private and Local Laws of 1857, the city was prohibited from issuing, selling or disposing of any bonds, except those specially authorized for the enlargement.
The judgment of the county court must be reversed and the cause remanded, with directions that the complaint be dismissed.