Daily Davenport Democrat. [volume] (Davenport, Iowa) 1864-1874, 1868-05-12

ODIMIOn oil hCOs r. "mAtCV1Us
City Attorney.
DAvxxroar, May sth. 1858.
Geo. r. whitcomb, Esq.:
DrAs Su we understand that you, - a.
tornsy for the city, ksvs investigated she nat,
ssr Of the city debt question, and the power o.
taxation by the city, and believing that Jour
views On these matters will b Of Interest 70 sne
taxpayers Of the city, who seem - % snxioaa
fSr light on the subject. We request you 10 for'
nish 10 with sn exprsssien Of those views. with
your reasons therefor, IN writing
Respectfully yours.
l.s:' .s:s ) ..s.s; .s:s:::' % r''.'''co"
DAvsxroRr, May llth, 1858.
Gentlemen ofths Finance Committee Of the city
OF Davenport
Your communication relstive to the matter si
the city debt and the power Of taxation by tns
CITY Conncil, was duly received, and hastily
comply with your request at my earnest opPor
,unity. ~
The results Of my investigation is a. follows
Noprincple OF law is more firmly sstablishsd:
l. Than that corporations have, ana shsre'oIe .
cen lawfully exercise, no greater and no other
powers. than those expressly granted TO them
Dy the power creating them, and such incident
al powers Is may ~ necessary - carry INTO o.
feet such express powers.
g. That the officers Of a corporation must dis
charge the functions OF their offices, that h per
form their duties under the trust and power
conhdsd in them, in the manner pointed out IN
and by the lev, aud % to those things which the
lsw expressly requires shall be done, there 10 no
discretion LETT to the sficers strict confosAanee
being their imperative duty.
ii.
Keeping the foregoing principlssin view, and
applying them to the city OF Davenport ana isa
officers, it will be iseen. in the charter aad IL
ams sndments, in reference TO the power OF levy
ing and collecting taxes.
I. That this power is vested solely in the City
Council.
2. That the charter, act Feb. 9th, 1881. arti-
Gle s, section !, expressly limits the power Of
levying taxes to five mills on the dollar.
.. By an amendment TO the charter, act Of
Ian. 27d, 1855. section 8, the Council were
further empowered to levy, in addition 10 said
tive mills . specific tax, 90 called (limtsd only
BY the amount requisite for the demand, II any
to pay the semi annual interest on the debt 81
the city heretofore created being the debt legal
ixed by section Of said act, and being the
1l25, 900 railroad bond debt lfthe ordinary rev
enus, tthat is, the revenue from the five mills
tax Wa Insufficient to pay said interest, afssI
the payment Of the ordinary city expenses.
Z. The 9Th section Of SAID act, conferring upon
the city OF Davenport mot in bonds upon this
Code (of 1851 for the organization OF cities
either did, or did not, authorize the Council ia
levy tax not exceeding ten mills on The dol
lar.
l understand that il 10 claimed BY some of the
creditors OF the city, or their attorneys, that
this section does authorize tax of ten mills
But, believe, hon. }. y. Dillon, when acting q
District Judge, held that thus section does ns'
authorize any greater tax than the charter o.
1854 thst his honor, Judge Hickman, also %
held in the case Of Oofin. ex'r. &c., 70. City
Council OF Davenport, decided the past week
aud the Supreme Court OF this State also %
held in IA Iowa, p. 4s9.
Resting upon three authorities, l shall A.
sumo, whether right or wrong, that said section
, does not authorize such = tax Is is claimed by
those holding claims against the city.
8. BY the amendment of January Esd. 1857.
the Ohy Council are further authorised to lazy
. road tax that is, the road tax which Ufior t.
said amendment had been levied by the county
authorities if not more than three mills on the
dollar.
8. These, the ave Tor ten mill tag. the sps
sifc tax to pay said interest on the railroad
bonds only, authorized only when the ordinary
revenue is insufficient therefor after the pay
mens (out of the ordinary reyenue) Of the ordi
nary city expenses, and the said road tar, =
these sre oil the taxes that the City Council
have any express power TO levy or collect upon
the property owners Of this city.
| ought to state, however, in this connection,
that il 10 claimed BY some, that the City Coun-
oil also have power to levy q tax of one mill on
the dollar. IS q sinking fund TO apply on the
principal of the city Indebtedness | believe |
have examined carefully and thoroughly for any
authority in the law for this power, and can
tnd nothing except provision in the revision
of 1859, section l, l25 (95) which does contain
| yer in he of crAd
but not in fact, 30 far ~ this city is concerned
For fsaid section ,l25 is applicable te this city
then sections 1884 ct sequens, most also be
applicable. lfso, then the city Of Davenport
has no power, itself, 10 collect any tax, and iti
charter and ordinances are not worth the frsc.
tional part OF city bond. 1t isdoubtful wheth.
er single provision OF Chapter 81 Of the kevis-
ION containing said section Lips except sec
tion ,o9l 81 was intended by the Legislature
to apply to every city Incorporated prior to said
act. approved March 23d, 1858, a7d, in conse
quence Of the decision Of our Supreme Court at
the June term 1861, Of the case Of Whiting, &c.
vs.. The City of Mount Pleasant, in order to re-
more any and all doubt, the Leg stature, at the
next session, think, declared by enactment
that no part of said act of March 23d, 1858.
should be applicable TO any city, created prior
to the said aci, unless the same should be adopt
cd, &c. This act never was adopted by this
city, and its provisions therefore do not apply to
il. Hence the Council can no more levy a tar
of one mill in addition 30 the chartered powers
for q sink ing fund than it can execute any 9th
er power provided for in said act.
This view is sustained bv cur Supreme Court
in the case of Burke VI. Jeiliies, decided June,
1866, in effect overruling the case Of Whiting,
Be-, so that there can be no doubt, as to this
matter OF sinking fund, so far as our State
courts ars concerned.
Iwoud here make sugge stion, which hav .
not had time to consider, whether the repeal in
act nf fhs nj ! ~ All for al
organization of cities in the code, by virtue oi
the act Of March Esd, 1858, affected in any way
the celebrated 9Th section Of the act Of jan
23d, 1855.
This much as to the power TO levy taxes.
Now as 10 the power Of the city to borrow
money. issue bonds. and the manner in which
the revenue Of the city must be expended and
Under the proviao in the provision Of the
charter on borrowing money, (if the Issuing o
said railrosd bonds tor railroad stock, or selling
them for money with which to buy railroad
stock, was borrowing money within the mean
ing OF the charter,) OF for some other reason
gal and void, As the Legislature BY said act oi
Jan. 32d 1855, section I, legalized and decl ared
them v.lid and in section Of said act the
Legislature provided how the interest on them
was TO be paid, viz BY said specific tag, iustead
Of setting apart portion of the ordinary rsye.
other words. the Legislature Of Jan. 22d, 1855
by enaeting said sections and 9. amesded the
whole provision in the charter for borrowing
money % far as these bonds we're concerned
bv declaring said bonds legal. when bv The
charter they were undoubtedly not legal, and
ID. BY providing that, instead of setting apar. I
portion ofthe revenue, &c, } If or when the or
dinary revenue was insufficient to pay the inter
est on said bonds. after the payment Of the or.
dinary city expenses, (thus implying that thes.
expenses must first be paid) then, and then oply
. specific tax might (or should) be levid suff
cient to pay the same.
The provision in the charter, on borrowing
money. required the question to be submitted
and approved by . majority of the taxpayers
lsuch il the language and that no debt should
be contracted, the yearly interest on which
should exceed one-half the revenue derived
frem taxation on the real and personal property
The amendment of Jan. 22d, 1855, section 7
provides that the city shall have the right |,
borrow money aud issue bonds, (subsequent q
the passage Of the act, Of course) provided thai
NO debt shall be created, the yearly interss
upon which, together with the yearly interest 0
any asbt before created shall exceed three
feurths Of the ordinary yearly revenue. unles
the eostracting Of said debt shall be approves
bv . majority mot Of taxpayers } but Of the 70
ters Of said city, who may vote upon the quss
tion to be submitted 10 them BY the Council.
Obviously, and - . matter of fact, this loan
~ called, ofls56 and 1857, were made under thi