Mayor and Aldermen of Savannah, &c. vs. The State of Georgia, &c.

No. 3.-The MAYOR AND ALDERMEN of the City of Savannah, &c. and the COMMISSIONERS OF PILOTAGE for the bar of Tybee and the River Savannah, plaintiffs in error, vs. The STATE, ex relatione THOMAS GREEN et al. Defendants.

[1.] The Constitution of Georgia, 1st Art. and 17th Sec., declares, that no Bill or Ordinance shall pass, containing any matter, different from what is expressed in the title thereof. Held, that under this clause, so much of the Statute only, as contains matter different from what is expressed in the title thereof, will be void.

[2.] It is competent for a State Government, to authorize the construction of wharves on navigable streams, within its Territorial limits, even below low water mark; and the exercise of this power will not be deemed unconstitutional, because of its repugnancy to the power of Congress to regulate commercesuch power not having been exercised, so as to affect the question before the Court.

[3.] To justify the Court in refusing the writ of Mandamus, on the ground that the party applying had slept on his rights-the laches must be gross-the delay unreasonable.

[4.] At common law, the writ of Mandamus is not a writ of Right, but is within the discretion of the Court. Whether it be so in this State, Quere? It will never, however, be refused, when the right is indisputable and especially statutory, and there is no other remedy to enforce it.

[5.] The Act of the Legislature of 1841, requiring the Mayor and Aldermen of the City of Savannah, the Commissioners of Pilotage for the bar of Tybee and River Savannah, and the proprietors and owners of wharves and lands on the shore of Hutchinson's Island, to appoint Commissioners to determine the proper line of wharf-heads along the shore of said Island, is mandatory in its language,.and not permissive merely; and the service therein enjoined, not being foreign to the official duties of the appointees, its performance is obligatory on them; and it is no sufficient excuse for their refusal, that in their own opinion or that of others, it will injure the navigation of the River Savannah, the commerce of the City and the public generally.

Application for a Mandamus before Judge Fleming, in Chatham county, July, 1847.

By an Act of the Legislature of Georgia in 1841,—“to make permanent the water-line, for certain wharves, on the shore of Hutchinson's Island in the Savannah River, opposite the City of Savannah; and for appointing Commissioners to carry the same into effect," a commission was established, "to consist of four persons to be chosen and appointed by the Mayor and Aldermen of the City of Savannah; three to be selected by the Commissioners of

Mayor and Aldermen of Savannah, &c. vs. The State of Georgia, &c. Pilotage, for the bar of Tybee and River Savannah; and six by the proprietors and owners of wharves and lands on the shore of Hutchinson's Island." The parties authorized to select commissioners, were "required forthwith to perform said duty;" and the Commissioners, so appointed, after giving notice, “shall on the day so assigned and fixed, proceed to perform the duties and office herein required by this Act." And by a subsequent section, the commissioners were required to lay off said line, according to a line designated on a map, referred to by the Act. (The provisions of this Act are minutely set out in the opinion of the Court.)

On the first day of July 1845, an information, the State ex relatione Thomas Green and others, proprietors and owners of lands, &c., on Hutchinson's Island, was filed, praying of the Judge of the Superior Court of Chatham county, a Mandamus, to compel the Mayor and Aldermen of the City of Savannah, and the Commissioners of Pilotage, &c., to execute the trust conferred by said Act, by appointing Commissioners. An order was granted, requiring them to shew cause on the ninth day of July 1845, why the Mandamus should not be granted; on which day, after hearing their return, and argument, Hon. C. S. Henry, then presiding, granted an alternative Mandamus, returnable to the January Term of the Superior Court of said county, 1846.

At the January Term, 1846, the defendants (plaintiffs in error) filed their return to the alternative Mandamus, under oath, and for cause why the same should not be made absolute, showed:

1st. That they have not in any manner accepted the power, agency or trust, which is conferred upon them, or attempted to be conferred upon them, by the Act of the Legislature, passed 10th Dec. 1841, and cannot, as they are advised, legally be compelled to accept the same.

2d. That the said Act is merely permissive, and not compulsory; that there is nothing in the language, or terms of said Act, which is mandatory, or which requires them to accept or perform the duty therein required, contrary to their will and consent.

3d. That the duty required of them, to be performed, doth not legally appertain to their office or duty, as the Mayor and Aldermen of the City of Savannah and the Hamlets thereof, and if discharged, it would, as they are advised and believe, be of irreparable mischief and injury, to the navigation of the River Sa

Mayor and Aldermen of Savannah, &c. vs. The State of Georgia, &c.

vannah, and commerce thereof, and the public generally, who are interested therein.

4th. That the said writ ought not to be made absolute against them, because the said relators have been guilty of gross laches, in sleeping upon their rights, if ever any they had, since the passing of said Act, and up to the issuing of said writ, and are therefore not entitled to any aid from this Court, in enforcing their rights, if any they have.

5th. Because in a doubtful case of right, as they are advised, a Court of Law will never interfere by its writ of Mandamus.

An issue of fact was formed, upon that portion of the 3d ground, relative to the injury that would accrue to the navigation of Savannah River, and the commerce thereof, and the public generally; and at the January Term 1847, a verdict was rendered by a special jury, in favor of the Respondents.

There was evidence in the Bill of Exceptions to show, that the reason of the delay on the part of the Relators, was the loss of the map referred to in the Act. Afterwards, on the 20th July, 1847, His Honor, Judge Fleming, after hearing argument on the questions of law, made by the return of the Respondents, delivered a written opinion, by which, after carefully examining the points urged by the Respondents, he ordered the Mandamus to be made Absolute.

To which decision, exceptions were filed by the plaintiffs in error, and upon those exceptions, error has been here assigned.

WM. & WM. F. LAW and JOHN E. WARD, for plaintiffs in error, submitted the following points and authorities:

The Plaintiffs in Error will respectfully contend that the Writ of Mandamus, which has been ordered by his Honor Judge Fleming to be issued against them, ought not to be issued.

1st. Because the Writ of Mandamus, being a high prerogative Writ, will only be issued to an Inferior Court of Judicature, or to a Corporation, requiring them to do some particular act or thing therein specified, which legally appertains to their duty and office to perform. 3 Blackstone, 110, (85.) 2 Selwyn's Nisi Prius, 1093, Angel & Ames on Corporations, 556, 557, 574, 571, 572, 584. 5 Peters, 192. 1 Chitty's Practice, 990, 791, 796.

Mayor and Aldermen of Savannah, &c. vs. The State of Georgia, &c.

And we respectfully contend, that the duty we are called upon to perform, is not the legal duty of the Plaintiffs in Error. Clayton's Digest, 32, 33, 88, 140, 141, 532, 533, 425, 453. Dawson's

Digest, 479, 480.

The Act of 1841, by its terms, gives to the Plaintiffs in Error a right. It confers an authority, but imposes no obligation, and is a mere trust, which the Plaintiff's in Error may or may not accept. Pamphlet Laws of 1841, p. 47. 2 Story's Equity, 427.

2d. Because the Writ of Mandamus is not a Writ of Right, but is discretionary with the Court, which discretion ought to be governed by the facts in each particular case, and in this case ought to have been controlled by the ascertained and acknowledged fact that the navigation of the River Savannah, the commerce thereof, and the public generally, if the line should be run according to the provisions of the Act of December 10, 1841, would be injured. 4 Bac. Ab., 515. 1 Cowen, 522. 8 Peters, 291, 302. 3 Kent, 432, (note a.) 1 Chitty's Practice, 791.

3d. Because the rights of the Defendants in Error, if any they ever had under the Act of December 10th, 1841, have been lost by their laches and neglect. 1 Chitty's Practice, 791. 1 Maule & Selwyn, 32. 2 Wendell, 269.

4th. Because the Act of the Legislature, assented to on the tenth day of December, 1841, contains matter different from what is expressed in the title thereof, and is therefore unconstitutional and void. Pam. Laws of 1841, pp. 47, 50. Hotchkiss' Digest, 59.

5th. Because, by the line designated to be run in the said Act, a part of a navigable stream is granted to private individuals, and the Act is therefore unconstitutional and void. Hotchkiss' Digest, 47. 9 Wheaton, 197, 208, 209.

ROBERT M. CHARLTON, for Defendants in Error.

1. The first exception of the Plaintiffs in Error refers to that part of the decision of the Court below, which holds that the language of the act of 1841 is compulsory upon, and not permissive to the plaintiffs in error. The plain language of the act ought to settle this question-the plaintiffs in error are "required forthwith" to appoint the Commissioners on their part. Unless the meaning of words is to be changed to suit the purposes of the plaintiffs in error, this is rather too compulsory a permission to

Mayor and Aldermen of Savannah, &c. vs. The State of Georgia, &c. shelter the plaintiffs in error from a compliance with the orders of the superior authority of the Legislature. The King vs. The Bristol Dock Company, 13 Eng. Com. Law Rep. 139. Angel and Ames on Corporations, p. 574.

2. The second exception refers to that part of the decision, which declares that it was not necessary for the plaintiffs in error to accept this trust, as it is called, for that it appertained to their official duty to perform it.

I might answer this objection, so far as the Commissioners of Pilotage are concerned, by saying, that if an acceptance was necessary, they did accept the "trust"-it was at their request that this act was passed. What higher evidence of their assent to its obligations could be given? But I choose to take other grounds. I say, then, that if a person assumes an office of a public character, he is bound to perform all the duties which the proper authority may impose upon him, as well those duties which have been already prescribed, as those that may subsequently be attached-even in the case of a ministerial office, which involves in it some idea of a contract, this is true. The State vs. Dews, R. M. Charlton's Rep. 397. See particularly p. 404, 405, 408. Andrews vs. U. States, 2 Story's Rep. 202. How much more in the case of an office like that of the plaintiffs in error, which is or ought to be undertaken for the public good, as it may be ascertained by the proper authority. Shall no duty be required of them, if it was not required of them, when they assumed the office? It was not necessary, therefore, that they should signify their acceptance of this particular duty. By accepting the offices of Alderman and Commissioner of Pilotage, they bound themselves to perform this and any other appropriate duties that might be required of them by the Legislature.

The only question is, can this be considered a part of the official duty of the plaintiffs in error; for I admit, that even the Legislature could not compel them to do any thing which was not within the line of their duty? But I apprehend that the Legislature have made no such unjust requisition here.

First, as to the Mayor and Aldermen. I refer to the following statutes to shew that this duty was appropriate to them. Act of 1825, (Dawson's Compilation, p. 464, sec. 5,) which authorises them to elect Harbor-Master, Commissioners of Pilotage, and all other officers that may be necessary for the police or good government