Page:Harvard Law Review Volume 5.djvu/184

168 168 HARVARD LAW REVIEW. exist. Here the power to borrow money and contract a loan is not denied. The opinion, repeating what it has previously said, con- tinues : — " It does not follow that, because the town of Monticello had the right to contract a loan, it had therefore the right to issue negotiable bonds and put them on the market as evidences of such loan. To bor- row money, and to give a bond or obligation therefor which may circu- late in the market as a negotiable security, freed from any equities that may be set up by the maker of it, are, in their nature and in their legal effect, essentially different transactions. In the present case all that can be contended for is, that the town had the power to contract a loan under certain specified restrictions and limitations. Nowhere in the statute is there any express power given to issue negotiable bonds as evidence of such loan. Nor can such power be implied, because the existence of it is not necessary to carry out any of the purposes of the municipality." * At last we are given a reason for denying the existence of a power to issue the bonds in question. It is because its existence is not necessary to carry out any of the purposes of the municipality. In a subsequent paragraph it is said that such power must be in- dispensable to the exercise of the express or implied powers con- ferred upon the town by law. 2 Such a test as this is new, if we mistake not, and goes far beyond what has hitherto been the doctrine of the Supreme Court. Cer- tainly it will be admitted that no one upon the bench has, since the decision in Police Jury v. Britton, 3 more firmly and consistently denied to municipal corporations a power to issue negotiable bonds, ' unless in cases where the authority is beyond question, than the learned justice who wrote the opinion in that case. Yet Mr. Justice Bradley, in 1883, speaking of mere political bodies such as counties constituted for local police and administration, took occasion to remark that they have no power to make or utter commercial paper, "unless such power is expressly conferred upon them by law, or clearly implied from some other power expressly given, which cannot fairly be exercised without it." 4 And his language is cited with approval by Mr. Justice Lamar. 6 1 Page 691-2. 2 Page 693. 8 Ut sup. (1872). 4 Claiborne v. Brooks, III U. S. 407. 6 Page 690.