, 1859-12-14

Ard ths hMnd sase Of ~lEds and WIVES nay Ee+sr
: Datub its q7ies s1eea.
noa.e sest:i II k.eas helst never thro5ttnx.
IN Wild alarm;
Though e'tr III b-ca>t IN ft.al toaea j. a3bhsuz
Tbe spr Of tic .torm-
Ss.-..~-.~-
TIE cuAPIT AND FOX CASE.
The City Commanded to Pay--0ptn
lnn or Judge M4nierre---writ o
[ Maudauluxs
] In the Circuit Court of Cook County.
The People TX. Rel. John +. Chaplin aud Her
reF F.x rs. Juhn G. Haines, Mayor Of th
! City Of Chicago. ct 81.
OPINION OF TIE couET, uAs1ERnE J.
and no difficulty or embarrassment in tbi,
caac. It il evident in the tirht place that aht
certificates mentioned in the order Of the Com
mon Council are, in legal effect. equiv nlcnt II
alter the Essential character of things. and il a.
such 1ley fall within the provision Of the char.
ter or ol the Injunction issued out Of the Sunc.
r;or Court, the peremptory writ prayed for BY
The realtors must be oeuied.
The alternative W.T.. herein fets forth TINT On
the 5th december inst ths Common Council of
the city OF Chicago adopted resolution where.
in IN Indebtedness Of *1s.s u to the Nela-
tors, Mcssra. Chaplin Fox, for work and ID
bor, was acknowledged, aud tho re pondents.
| the haroT. Comptroller, and Clerk Of said CRY.
were directed 70 issue to the relaturs, certifi-
cates Tor such indebtedness in such sums a suid
REALTORS should DESIRE not less 1han 81 GOD eael
raJ able 10 them Of order on the 1st day Of
May, L. ID. 1861, with interest Us therein pro.
rlded. II is also alleged that the respondents
have refused to carry Aaid resolution into effect.
~ response to the writ the respondents suy,
that they admit all tac's set forth in .aid writ,
aud also Their refusal to issue +ucll certificates.
and as q reason for sueh refusal the respond.
ents al1e:e:
That tie right aud power Of said city TO issue
certificates to pay the previous debts Of said
corporation, and ia this form 10 borrow money,
sod theseby increase the bonded debt o. said
city beyond one hundred thousand dullars dur
Ing the present fiscal rear is seriously gues-
TONED and doubted in view Of tl.e clause in the
Charter ,'rohititiug tile city from borrowing
money exceeding the su,n Of one hundred thou
sand aol!ai in Hay ono rcar, mud of the TACT
thAt that amount of money has been a!resa'y
obtained. And It is further alleged that the
Common Council has been epjoined BIZ The su.
l'es'or Court OF Chicago from issuing any bond
IL pursuance Of IN ordinance passed Nav IL,
lS5', authorizing further loan Of Sl0o, 900, and
!ro1n issuing my osher bond as original evi.
dcnce OF usouey borrowed during satd year
1850. And tue respondents submit the bill, m.
NtEA
opinion Of Judge John N. Wii.on, US paris Of
their answer, not denying in nny respect the
justice OF the realtors clain, aud submitting
themselves to the order and determinatins ot
this Court in the premises.
The universally Recognised principle in reja.
ton to the construction ot aha charters Of cor
porat'ors, public or prirnte is: That the cl4r-
Ter IA sI'ecia! grant Of powers, TO be strictly
construed, and not TO he extended Leyond the
lair and ordinary meaning Of the languag.
used. No Corporation cln exercise poEeis rot
specifically granted, or such as must be neces-
sar7ly implied incident thereto 10 carry the
express porcrs into elect. In considering the
Question: therefore. whether tie Common Coun.
ell has the power to issue bonds fur existing
indebtedness as contra distinguished from .nos.-
ey borrowed, the question which must iu tho |
first place be considered j. whether the Council
the churtcr to du tue net? There is no clause
in tue charter By which it is declared that lhe /
city shall have power TO contract debts, but then
this power ulust be implied as necessarily re- |
snlsing lrcul The uutuIe uud extent uf the porr-
ess expressly granted at would be extremely |
- difficult il not impossible to mauage tic |
q atta'rs Ct corporation without the pow
"er to contract upon credit. And the
ii power tn contract a debt must car1y with it
!" power to giSe u suitable Acknowledgement Of
'' tie Indebtedness in the form of promissory
II mute or single bi'l,' Il New York, 3e3, IA Bar.
T.. e's - 1,e" ao!A' @lo. 1uo ea1ne Is Ike
wisc true Of borrowing money whrre no express
power is given; in such case it mas be taken
By inpliration.-i5d.
But it is also equally well settled that when
4 power is expressly given In relation to any
subject matter, thai then none can be implied.
70 oiulp!icas,on,- the case docs not admit Of the
doctrine Of implication. The terms of the grant
alone furnish the power and the extent and
limitations upon it. This rule is not only bind
ng On the construction Of ftHtuses but Is also
applied to consructa between parties. II il ex-
pressed IN Tie maxim, "s1prsssio unius est ts.
1as'o at:A,at<, or tie express mention OF one
hing implies III" exclusion oranother.-Broon't
Legal Aarims, 501.
III the 5tt. cause Of Section 1. Of Chup.cr
|. Of the Charter Of the City of Chicago
sre contained tue toilo*iug words: "To
'orIow ;orI ,, moneT not exceeding one hun
lnd pledge the revenue of the city for its pay
nent, and Issue bouds therefor This is IN
'xpress gruut Of the power to borrow money,
lad the Common Council arc bound by its
er:ns md Limitations. They hare and can ex-
tclse no other-co other can be implied. The
u'ject matter is legitllted upon and the grant
'<r &c constitutes aiithe power which Gun be ex-
1c'sci ky the city in relation thereto. II It il
lot sutficseut, the Legislature may enlarge it.
But has the Common Council the power to |
ontract debts other than for money, and ik.nc
'onds, certificates or other evidences of indebs-
dncss therefor! AZ already sta1ed. there Is no ]
xprcss power granted by thc charter, and cou.
eauent'y by authority Of tlo cases cited. the
rover to do these things necessarily results
rom ottd is incident to the general powers con-
erred by the charter, unless the sa,n4 were IA.
.en among or limited BY the force and effect Of |
he clause above cited in relation 10 the borrow
NJ ii morcy.
II is CONCEDED that If the power to borrow ]
i"uey necessarily includes every credit Of PRO-
rrty or labor which the city may obtaiu-or in |
ther words, If the contracting Of debts by the
urchase Of property is q borrowing Of money,
bat then tho certificates in question can rot 6e I
he limit OF its power. Now this position can
ct BE- tnaintaiocd. It is true that a power 10
ontruct debts would necessarily include
debt coutracted By tho borrowing Of .
,cncy, md it tho clause had been that
be Common Council shall not contract debts
ity would not be authorized to issue the bonds ,
! question. .Rut that il not the case; the evi- i
est meaning Of the taDgusge Is that The ctr ,
hall not borrow money exceeding S10u, roo. I
nd the power to borrow money obty ice udes !
ic power Of contracting debts in that particu~ ,
II HaT, md was uo1 1utcaded to be extended | :
eyond the subject matter Of the power itself.
~ immatcEiai, therefore, ubetlerthe contruc- ,
on Of debt br the city for properly or lubor I
or is not in effect and substance q borrowing ,
the price Al conse7ded. For though it should
2 SO considered and admitted, it is nevertheless
OF borrot1ing cf rns"tg; ind it is the borrow !
,g Of money alone beyond the amount stnted =
;rh is prohibited by The charter. :
There II, therefore, nothing in The clause cited
pttjudive tho Common Council in the e1er- :
lse Of the power to contract debts for labor or
Fopcrty, and issue bonds or certificates there
uperior Court Interfere with the Council IN this
.kpcct. That writ oply ;cnioius from the ism | {