Page:Harvard Law Review Volume 5.djvu/186

17° HARVARD LAW REVIEW. power of a town to borrow once established, its right to issue and sell bonds for a legitimate municipal purpose follows. Again, although the opinion concedes the existence in Indiana of an implied authority to borrow money, much space is there- after taken up with demonstrating how salutary is the doctrine that recognizes no such power unless expressly conferred, and how many and great are the dangers that attend a loose construc- tion of the express powers of a municipal corporation. 1 At page 692, the learned justice quotes at length a passage from Dillon's Municipal Corporations, 2 every word of which is replete with good sense. But the danger against which this admirable writer has sounded a timely warning is of a loose con- struction that admits of an implied power in a municipal corpora- tion "to borrow money." Judge Dillon says: "We regard as alike unsound and dangerous the doctrine that a public or muni- cipal corporation possesses the implied power to borrow money for its ordinary purposes, and incidental to that the power to issue commercial securities." Judge Dillon was unquestionably right in long ago taking this stand. It is the implied power to borrow that is dangerous, because, such a power once recognized, the right to issue negotiable securities as incident thereto cannot logically be denied. In conclusion, we submit that an adequate discussion of the principles governing this case would seem to require the consider- ation of but two questions only: — First. — Does the power exist in the municipal corporation to borrow money? Second. — Has a municipal corporation, which is empowered to borrow money, the right to issue negotiable bonds for funding a valid indebtedness that is about to mature, and which it has not the means to pay, except by borrowing money? The first question the opinion answers, as we have seen, by determining that the power does exist. After that conclusion is reached, does anything further remain than to inquire into the extent and limits of the power to borrow? And should not that 1 The reasoning of Mr. Justice Lamar, when scrutinized, is seen to bear exclusively upon the proposition that the power to borrow money cannot be implied from this or that express power. But (and the comment is obvious), that such a power must be necessary in order to be implied will not be disputed. 2 3d ed. sect. 507.