Frederick and others vs. The City Council of Augusta.

same, and the said City Council shall also be vested with full power and authority, to make such assessments on the inhabitants of Augusta, or those who hold taxable property within the same, for the safety, benefit, convenience and advantage of the said city, as shall appear to them expedient."

Had the City Council of Augusta the power and authority, under their charter, to make and establish the ordinance, for the assessment of the tax in question, on the real estate of the complainants, located within the limits of the city, as stated in the record? We are of opinion, the City Council had such power and authority, under their charter of 1798, but if they did not, the Act of 27th December, 1845, expressly adopts and confirms the ordinances of the City Council, in regard to the construction of the canal, which, in our judgment, it was competent for the Legislature to have done. Truchelut vs. The City Council, 1 Nott and McCord's Rep. 227. But it is contended, the tax assessed by the City Council on the property of the complainants, is against common right, and the principles of the social compact, and operates oppressively. The answer to this argument is, that the City Council of Augusta had the authority delegated to them by the sovereign power of the State, to make the assessment on the inhabitants of the city.

When the law-making power acts within the scope of its del egated authority, the Courts cannot interfere. It is the duty of the judicial tribunals of the country, to execute and enforce all constitutional laws, and not to make them. The remedy against the effect of oppressive legislation, delegated to municipal corporations, is in the hands of the people, or their representatives. It was competent for the Legislature to have restricted the power of legislation by the corporation, in its charter, and the inhabitants of the city elect their own officers, whose ordinances are presumed to express the will of the majority.

[1] A corporation, says Chief Justice Marshall, (in Dartmouth College vs. Woodward,) is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. 4 Wheat. 518. 4 Cond. R. N..S. 543.

Frederick and others vs. The City Council of Augusta.

[2.] The power delegated by the General Assembly to the City Council of Augusta, as appears by their charter, is to make assessments on the inhabitants of the city, or those who hold taxable property therein, for certain specific objects, (to-wit:) for the safety, benefit, convenience and advantage of the said city, as shall appear to them expedient.

In pursuance of the authority thus delegated to them, the City Council have adjudged by their ordinance, that it is for the safety, benefit, convenience and advantage of the city of Augusta, that the canal mentioned in the record, should be constructed for the purpose of better securing an abundant supply of water for the city, as well as for manufacturing purposes, and have made an assessment upon the real estate, within the limits of the city, of one half of one per cent. on the value thereof, to enable them to accomplish that object.

The inhabitants of the city are to be furnished with an abundant supply of water, to protect their property against fire, and for other purposes, and the payment of the tax assessed by the City Council on the property of the inhabitants, so to be protected, is the means by which the contemplated benefits are to be enjoyed by them. We see nothing in the ordinance which is unreasonable, or which violates the charter, or the laws of the land.

It was urged on the argument, that to compel the complainants to pay the tax, would have the effect to make them stockholders in the canal company against their consent. It is true, when they shall have paid the tax, they will be entitled to receive a certificate of such payment, which will secure to them, and their assignees, an interest in the canal stock; but it is at the option of the complainants, whether they will take a certificate, and be. come stockholders in the canal company-this part of the ordinance was intended for their benefit, and they may renounce it if they should think proper to do so. The assessment of the tax is not made on their property, as stockholders in the canal company, but on their property as citizens, owning real estate, within the corporate limits of the city. Whenever the complainants shall be made stockholders in the canal company, against their consent, and an assessment shall be made on their property, as such stockholders, then it will be time enough to decide whether they can be made stockholders in the canal company, against their

consent.

Justices of the Inferior Court of Scriven county vs. Ennis.

With regard to the liability of the complainants to pay the assessment of the tax as citizens, owning real estate within the corporate limits of the city of Augusta, the same principle prevails as in the community at large, that the acts of the majority, in cases within the charter powers, bind the whole. Kent's Com. 293. The King vs. Buston, 3 Term Rep. 592.

2

In view which we have taken of this case, as presented by any the record before us, we are of the opinion, the judgment of the Court below should be affirmed.

No. 67. THE JUSTICES OF THE INFERIOR COURT OF SCRIVEN COUNTY, for the use, &c. vs. AZARIAH ENNIS,

[1] The bond of a constable, made with one security, instead of two, as directed by Statute; Held, to be a good voluntary bond, by the Common Law.

Whether good as a statutory bond-Query?

Motion in arrest of judgment, in Scriven Superior Court, decided by Judge HOLT, October Term, 1848.

Suit was commenced, and a verdict rendered in favor of the Justices &c. for the use of James B. Dill, against Azariah Ennis, as surety, in the following bond:

"GEORGIA, SCRIVEN COUNTY.

Know all men by these presents, that we, William H. Bryan and Azariah Ennis, are held and bound unto the Justices of the Inferior Court of said county, in the just and full sum of five hundred dollars, for which we bind ourselves, our heirs, and our executors and administrators, severally and jointly. Now the above bonds are such, that if the said William H. Bryan do faithfully do and discharge the duties required of him, as constable for said county, and faithfully discharge the same, the above bond to be null and void; otherwise to remain in full force and virtue. Signed and sealed in presence of,

this 8th day of Jan. 1839.
LEWIS LEWIS, J. P.

WILLIAM H. BRYAN,
AZARIAH ENNIS.

Justices of the Inferior Court of Scriven county vs. Ennis.

On motion, the Court below arrested the judgment, on the ground that the said bond is null and void.

To this decision plaintiffs excepted.

M. MARSH, for plaintiffs in error.

By the Court.-NISBET, J. delivering the opinion.

[1.] The question made in this case, occurred on a motion to arrest the judgment. The declaration on the bond, charges that Bryan gave the bond sued on as constable, that he entered upon the duties of his office, and as constable, made default. For this default, which is specially set forth, the surety, who is defendant in error, is sought to be made liable. The Court below arrested the judgment, upon the ground that the bond upon which the action is founded, is void, because not in terms of the Statute. The Act of 1818, (Prince,) 509, under which it was taken, requires that constables shall give bond, with two or more securities. This bond was made with one security only, and in that, the non-conformity is said to consist. There may be some doubt whether this bond is not a good statutory bond. The Act of 1818, does not, nor does any other Act in relation to constables' bonds, declare the form of the bond, or say that any bond not taken in conformity with the provisions of the law shall be void. That being the case, the rule is well settled, that so far as the bond complies with the Act, it is good as a statutory bond. The objection to this bond, is not that it exceeds what the Statute requires, but falls short of it. It was a better objection in the mouth of the public, whose interests are to be protected by the bond of the officer. So far as it is in compliance with the Act, it would seem to be good, and it complies in part with its requirements. There is one view of it, however, that sustains the idea of its invalidity as a statutory bond. The sureties are entitled to contribution. The Statute requiring two, confers a right upon each surety, that is, the right of having a co-surety, to share final losses with him. By taking only one security, this right is defeated. The objection has force in the mouth of the one surety, who is to be charged with this default. Be this as it may, our judgment is, that the bond is good as a voluntary bond, by the Common Law. It was executed by Bryan and the defendant; duly delivered to the

Warthen vs. Brantley and Daniel,

persons authorized to take it; Bryan entered upon the duties of his office, and in that office made default. All these things are set forth in the declaration, and the verdict of the jury finds them to be true. According to the principles settled by this Court, in the two cases of Stephens et al. vs. Geo. W. Crawford, for the use of Ward, 1 Kelly, 574, and Stephens et al. vs. Geo. W. Crawford, use of Breedlove, 3 Kelly, 499, this is a good bond at Common Law. As those principles are fully discussed in those cases, I will not travel over the same ground here.

Let the judgment of the Court below be reversed.

No. 68. THOMAS J. WARTHEN, plaintiff in error, vs. JEPHTHA BRANTLEY and MOSES DANIEL, defendants.

[1.] A bill that is demurrable for multifariousness, may be dismissed by the Court, of its own accord.

[2.] This objection is not favored by the Courts, especially where the defendant is the same.

[3.] Where the bill of A charges that A, B, and C entered into partnership and did business for one year, at which time C withdrew, and A and B continued the business, no settlement having been made; that B was the active partner in both firms, and managed all the business, and mingled the assets of the one firm with those of the other: Prayer, that B shall account for the profits of both firms, and that C be made a party to effect a full settlement of the first firm: Held, that this bill was not demurrable for multifariousness. [4.] One defendant cannot demur for multifariousness, on the ground of the joinder of another defendant who does not object.

In Equity, in Washington Superior Court, decided by Judge HOLT.

At the March term, 1848, of the Superior Court of Washington county, Thomas J. Warthen filed his bill in Equity, against Jephtha Brantley and Moses Daniel, charging, that about 1st Jan. 1840, complainant and defendants enteredin to a co-partnership, under the style of "J. Brantley & Co." for the purpose of merchandizing, in the town of Sandersville. That the complaina