The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1870-04-21
Concluded from Sth. Page.


Foster vs. The city of Kenosha, u Wis
I616
This action was broughtin the Circuit Court
OF Kenosha County to enjoin the city OF Ken
osha from collecting certain tax, levied up
on real estate in SAID city. for the purpose OF
paying this identical scrip and tn remainder
o; the same lssue,and an injunction obtained,
restraining its collection, aud on appeal to
The Supreme Court the Judgment was al
firmed on I he ground that said section eight
was void,as being in conf.cG with said section
three OF article | l. OF the Constitution of Wis
consin The sole que tion before the Court
was the constitutionality or aaconstitution-
ality of section eight; and the Court We're
unanimous that it was unconstitutional and
void, and SO adjudged. This was the first adj
judicatlon OF tile Supreme Court on this ques-
ton, and STANDS to day as the final and set
Cied Judgment CT said Court upon that sub
jeCt. We therefore insist that said city of
Kenosha had no authority TO subscribe for
stock in the Kenosha Il Beloit Railroad Com
pany, or TO issue its scrip in payment of said
subscription IN aid Of said Railroad Com
pany. .,rtt g9 a4o.i. +.
1t is true Il at the Court in their opinion. in
that case say, :" whether this woul,; render
the scrip of the city issued in pursuance OF
Chat action of the Common Council, void or
not, we will not attempt to determine in this
proceeding" 81. e s- p, '' -
l,dI
there was no necessity to say that the scrip
was void. But the question that was before
j hem was whether the tax that had been lew
led TO pay thatescrp was legal or void And
Ithey declared it void on the sole ground that
the city lad no authority to issue the scrip or
crea tie the debt. Aes'7 ~ = <
/ IT was not declared void because improper
Iiyfor irregnlarly issued, butfsolely upon the
aground of. total want Of authority to issue
tine scrip and make the debt. That decision
was an express adjudication OF the supreme
tribunal Of the State, that the CITY OF kenosha
had nc legal right or authority to make the
debt, and as necessary consequence had no
power or authority to take any step tospay it..
| For municipal indebtedness can be paid only
BY taxation.
That decision declared and decided that
there was a total want of power in the city to
cremtegt his debt. and in such case this Court
Ihave decided that the Indebtedness of mu-
Epcipal co poration isanot yaliid. 3 Wallace
$50. as sb1 Y Garrett s57s aaaa1a5
That this scrip, in its Inception ~ as void
land must so be heldin all Courts, results nee
Ivssa lily from the fact that there was no au-
hority 10 issue it, and inasmuch as the Su-
Ipreme Court of the State has already decided
\ hat there was authority Tor its issue, we
may safely rest on that decision as theslaw
IN this case onsthis question. The scrip hay-
ing been issued and the debt inc drred without
Authority of law, it necessarily follows that
! some subsequent process it has been ratified
and legalized. ia pli-.aatf5g ,.
| ss4 s.aess E4 e. III. se9aeaa ss7
"The construction given TO a statute of a
State by the highest iudiciattribunal OF such
State,is regarded as a part OF the statute, and
4 is as binding upon the courts of the United
! STATES as the text - .,vs..,
4 Leffingwel vs.. Warren, 2 Black, sos.
Shelby VS.. Guy, Ii Wheaton,. 337.
Il McCluuy VS. SilliInan 3 Peters, 270. A..>i
4 Greene vs. Neil's lessee, Peters, POI.
Ross VS. Dnvall. IS Peters, 45. 3l
Massingali VS.. Downs,1 Howard, 767.
Nesmith VS.. Sheldon Howard, Sl2
| Van Renslear VS.. Kearney,sn Howard, 297
| Webster VS. Cooper, IA Howard, 504.
This. case comes strictly within the above
rule which is the settled practice of this court
| 1t is not p question Of mercantile or CONNER
/ cial law, nor of imparng the obligations of
lcontract, out simply a question If power and
authority arising " on the construction of the
constitution and statute law Of the State of"
Wisconsin. In such case this court say, in
Mercer County VS.. Hackett, 8 Wallace, 90,
We acossld haze Jelt bound to foll0ao Il. the
ldecision of the State court. So III
| This caseis not within the decision i'm the
case OF Gelpcke IS. Dubuque, Wallace, IT'S,
| for here the Supreme Court OF Wisconsin has
never changed its decision, bat declared the
law unconstitutional when it was first brought
to its notice. and have always adhered to that
decision. TO hold that the decision in that
case applied here, would entirely. nullify all
provisions of the State constitution which at
tempted to restrain the Legislature from au-
thorizing cities. towns or counties from rum
ming in debt. 1t is true that the city has as
sumed to act rnder this law, and has issued
this scrip. But the scrip shows on it's face
for what 1t was issued, and the provisions of
the constitution and the law were notice 10
al the. world, which they were bound to re.
gard. The law was utterly void, as being in
conflict. with the constitution, and therefore
no authority to the city, and the. Supreme
Court so held at the first opportunity. In the
| case Ia cited the court say where there
lsino defect of constitutional power, such leg
islation in cases like this is valid.p s3l7{
50 The converse of that proposition is also
true that where there is such defect of con-
stitunal power, such legislation is invalid
The fact that the city council have acted un
i der such invalid law and attempted to create
a debt against the city, does not make it val
i i'd as to such debt, but it is void IN toto and
i for all purposes. Otherwise the constitution
i is no protection, and itmay be violated with
limpunty, and a debt contracted by munici.
pal corporation under an unconstitutional
law, which. was no authority for contracting
lit, if done before the Supreme Court OF the
i State adjudged it void, is equally binding up
ntne corporation as it would have been had
the law been constitutional and valid. In
other words, the law would be constitutional
i for that purpose but void for all Others This
cannot be the true construction of the matter
1.-THE law must be held void for all PURPOSES
land the action under it without authority, the
Isarne as if@nolawdhad existed. So the HIGH
est tribunal of the State has adjudged and we
lclaim that its decision On the validity of
/ this law is conclusive upon this court.
Hu Nv.
This scrip has never been ratified, confirmed
| or legalized SO as to become legal aud bind.
ing Indebtedness against the City ofKenosha. .
4 Tie city could noLlratlfy, confirm or legaIize
Iit without legislative uthority. rs
i y If the City Council had no authority to
make the subsc ripGion to the capital stock of
The Kennsha and Beioit Railroad Com pany,