Daily Democrat and news. [volume] (Davenport, Iowa) 1859-1864, 1862-06-16

JUN TERN 1862.


e.'."' o' ~ a''' e.. : '''' Co Scot. Co..
f1iCn7 - DAVENPORT, Appsllsnt.l
This action was brought on the go
ofSeptember, 1858, upon special con
tract to recover for gas furnished 1se
lamp posts in the streets Of the city du.
ring the month"; OF July and August O
that year.
The contract was dated August 9th,
1857, and by its terms plaintiffs were
TO supply the public lamp posts, erected
and to be erected, for q spec fed snu
per month, for the whole unexpired ter nj
| Of the charter. !.
The amount claimed was $1,27s.95-
the recovery $9s6-and from the judg.
ment defendant appeals.
GRANT AND LANE for app't.
PurNAM & RoeERs for appellee.
OPINION.-wRIGHT, J.
Appellant assigns thirteen distinct
causes of error, for the reversal OF the
Judgment. So far as they are insisted
upon in argument we proceed to notice
them. a.~
lst. A juror stated: "that he was q
tax payer in the city-livcd in the sixth
ward-did not believe it vas right for
the inhabitants of that ward to pay their
share of the taxes and get no gas-Lut
had no opinion as to this cause which
would disqualify him from rendering a
verdict according to the law aud ev-
ldence."
On this statement plaintiff challenged
for cause, aud the challenge was GUS
tanned. Under clause 2 5 5000 of the
Revision, if the Court, in the exercise
of a sound discretion, is brought to the
conclusion that the person will not act
with entire impartiality, the challenge
should lie sustained.
There was no abuse of this discretion
in this case and the ruling is therefore
affirmed. The Court might we'll con-
clude that the juror would not act with
entire impar,iaIIty, and hence that there
was actual bias.
Cd. In the formation of the trial jury,
defendant insisted that plaintiffs should
fast exhaust all of their peremptory
CD allerge The Court however required
the pa,t'es to ateruate-the plaintiff
first and defendant afterwards, until both
had completed their challenges. THIS
was correct certainly, under the Code Of
1851, s IVA, 10 force when this action
was commenced. The corresponding
section IN the Revision, 3O36, changes
the phraseology somewhat, but we
think the meaning is the same-the
words GIN turn" would be entirely SUI
pe,huous under any other construction.
Sd. Certain pleas of the deendaLtwere
demurred to- demurrer sustained -
and this is the next question challenging
our attention. These pleas are mum.
bereG 2, 3, 4, 5, 7, 9, 10 and IL. Some
of these were in the nature OF denials OF
plaintiffs petition or parts thereof, and
so far rs there was any error in holding
them defective, defendant waived the
same BY his further answer afterwards
filed which covers the same ground
upon which there was An issue and trial
This remark applies to the third and
fourth pleas certainly whether it does
to others we need not determine, as W.
are clear that as to them the demurrer
was properly sustained, and we prefer
to take tins view Of the case from the
fact that questions are raised which II
is important should be settled, for the
! guidance of the parties in future.
The second plea sets up that on the
5th September, 1857. the time OF tht
adoption of the present Constitution, the
city was indebted to an amount in the
aggregate exceeding five per centum on
the State and County valuation of the
previous year; that no public lamp
posts were then erected, and that it was
not competent for the city, after tina,
date, to become further indebted for an,
purpose, and that said plaintiff, for gss
furnished thereafter, could not recover.
The language Of the Constitution FAR
ticNe IL, 5 81 is: mo county or Other
political or municipal corporation shall
become indebted 10 any manner, or fol
any purpose, to an amount in the aggre
gate exceeding FIVE per ccntum ON tn,
value Of the taxable property with,
such county or corporation, to be ascer
tanned by the last State and county ia.
lists"
We are to inquire first, whether thi
prohibition is applicable to the contrac
now under consideration. We thinl
most clearly not. 1t was made on tn,
9th Of Aug, 1851, and the Constitutio,
was not in force until in Septemb Der
Tie contract created The liability.
was incurred within the meaning of tn
Constitution, and the subsequent pro
h'bition could not interfere with ia,
rights or obligation of the parties to it
1t is, as if the city had contracted 70
the erection Of a market house, a publ
hall, for the building Of bridge, culver
or the like, agreeing to pay certain
sum when the work should be complet
ed. If the contract was made prior an,
the work done subsequent to the 5th o
September, 1857. the Constitution coul,
t not change or affect the same.
The seventh plea is, that the ga
works, where plaintiffs manufactured tn
gas furnished and sued for, were, at th,
time referred to in the petition, an,
continued to be, a nuisance that th,
city, under its charter, has authority t,
prohibit but not to legalize a nuisance
: aud that a contract made for gas for
nished at such place is not binding
If the gas works referred to constitute
a nuisance, then it was the right ant
duty of the city to SO declare; but uuti
| this Ia dana and thu f.nA ra.,.l