Page:Harvard Law Review Volume 5.djvu/185

169 DECISION UPON MUNICIPAL BONDS. 169 The opinion we are now reviewing does not abide by this just limit It virtually asserts the doctrine that although there be con- ferred upon a municipal corporation a power to borrow money, such corporation has no power to raise the money by selling its bonds, because raising money in that way is not necessary to carry out the purpose of borrowing. It is not indispensable to the ex- ercise of the power of contracting a loan that the town should issue bonds. Of this necessity the municipality itself may not judge, but it is left for a court to determine, in an action upon the bonds. With great respect let it be said, we find ourselves unwilling to believe that the reasoning can be sound which leads to such a result. It is hardly worth while to speculate whether, upon the application of so rigid a rule, the large majority of those familiar with municipal affairs would not be of opinion that under the circumstances in which the town of Monticello found itself, the issuing of its bonds for sale in open market was, as a matter of fact, necessary and indispensable to carry into execution the power that the town had to borrow money. It is of the terms of the rule as a legal proposition, however, not of its application in this par- ticular case, that we complain. We may be pardoned for suggesting that while the opinion does not directly say so, it yet conveys an impression that to the mind of its writer an implied power to borrow money, or contract a loan, is not quite so plenary in its scope as an authority to do these acts conferred in express words. It is hardly necessary to explain that the only real difference between the two is in the evi- dence that has satisfied us of the existence of the power. In the one case the legislature says to the town, " You may borrow money." In the other it has used such terms that the court says, " The legislature means that you may borrow." It comes to the same thing. We know of no reason why precisely the same test should not be applied to the power to borrow money, whether the power be express or implied. The true question is, Can a town fairly exercise its power to borrow without resorting to bonds? Inasmuch as negotiable bonds are, and for years have been, the usual and regular mode by which a town raises money that is too large in amount to be got by immediate taxation, there can properly be but one answer to the question. In a word, the