The weekly mountain Democrat. [volume] (Placerville, El Dorado County, Calif.) 1861-1862, 1862-02-01
Opinion Of the city Attorney.

PLAcRRvILLR, January 18th, 1869.
To the Hon. Mayor and Common Council of tie
city Of PidcerriHe
Gents I'm reDly to your inquiry as to the pres
ent authority of the tax payers or Of the Common
Council over the money paid in by the taxpayers
without protest. on the tax levied for the payne mt
Of W. j. Lewis for his survey of a railroad route
to Folsom. have only this to say:
The complaint in the case of Douglas VS.. the
City OF Placerville contained the prayer that the
money paid in under protest on the railroad tax
should be paid back to the taxpayers who had so
paid II In. As to the money paid in on said tax,
not under protest, an injunction was asked re-
strainlng the Common Council from ever having
over the same or any part thereof to Lewis or any
other person in payment for said railroad survey,
ana tnat the moneys last mentioned be ordered TO
be paid into the general fund of the City. The
District Court decided that Douglas, having paid
the tax under protect, might recover the money
back from the City. Il also granted the iRjunc-
tlOn' which, by the judgment, was made perpetual,
restraining the City authorities from ever paying
said money not paid under protest to Lewis, but
the Court said nothing about paying the money in
TO the general fund.
Judgment Of the District Court in all things. Az
ter the decision in the Supreme Court, counsel for
the city hled petition for hearing and for a
modification Of the judgment below 90 as to remove
the injunction and permit the Common Council to
take the money paid in, not under protest. and pay
the same to Col. Lewis. The Supreme Court denied
the reheaTlng and 80 refused to remove the iniune
tion, which still stands and is complete bar to any
payment Of said money to Lewis, by the City au-
thOritieS.
The only question remaining is, To whom does
the money paid in on the railroad tax, not under
protect, but voluntarily, by the tax payers, belong
To the City, or to the Taxpayers?
As the payment by the tax payers was voluntary,
think the authorities are uniform and conclusive
that the tax-payers could maintain no action to
recover the money back from the City, and whatev-
er their moral right to have or control the came,
may seem to be, yet, practically, that all their
right to recover or control the same is gone, and
the same is subject to the control of the City Coun-
Gil, the same as though it were gin or beauest
made without conditions as to its use,-exsept
that, as to this money, the Common Council is re-
strained from paying it out for any Of the purposes
for which 1t was paid in BY the tax payers
l am aware that eminent lawyer, lately 4
Judge OF the Supreme Court, has, in letter to Mr.
Lewis, expressed the opinion that the money paid
in voluntarily is now the money of the taxpayers
and subject to their control. think the law and
the authorities are otherwise. Nor can see how
the individuals who paid this money can authorize
the Common Council To do what the decree of the
Court expressly Restraints them from doing. Had
the judgment been modified, and the Injunction
removed IS prayed for in the petition for re hear
ing, Lewis could have had his money long since.
JOHN HUME,
City Attorney.