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

proceedings to show that bonds were issued
ander said special Act, March 22d, 1858. to
cue Iuli amount thereof in 1853 which are
stu outstanding, and that this scrip is no
part OF SAID Indebtedness and has no connec-
| non "ltniG. AND therefore that said law was
exhausted by that issue and was no authority
FOR the Issue of this scrip Record 266 to 269.
Inc scrip In question, was issued in 1859.
Record 1854, to take up scrip of 1856 given
ior subscription to stock, Record 262 26l260.
And The question now presented is whistler
the city had any authority to make said sub.
scription or issue said scrip. contend it
had not.
This cause when formerly before this Court
| was evidently decided upon the hypothesis {
hat the Act of March 22d, 1853. AUTHORIZING.
the loaning of the credit of the city to the
railroad for one hui dred and filty thousand
dollars was in full force, as an authority to
make thls SUBSCRIPTION; and that the sub =
| scrption and scrip should be upheld for that
reason. u''t 7if - s. l'7N' 4
Bvreference to the syllabus of the csse as
reported in Wallace 1914, we find the sub 4
stance of the decision stated as follows ~
Where the Legislature of q State passes Two
Acts, one, (which by the constitution it ha6
the power TO pass) authorizing City to sub
scribe limited amount $3.50, 000) of stock to
railroad, another (Which, by the Constitu-r
ton, 1t PAD no powerto pass,) authorizing it
L..
| City, protesting to act under the one which
autk orized the unlimited amount. snbscribes
the limited amount ($150,000) a subsequent
recognition by the Legislature of the SUBJ
scrbtlon as legal, validates thesubscription y
The above syllabus correctly states the
point OF the decision So 4 pf17 81 80 I
The Court all through the opinion treat the
case as one, where there was valid authori-e
lty TO make the subscription, and that the cIty
authorities in making it had by mistake act.
ed under an invalid authority, and that such
a mistake was curable.o Ell eff t3 I Nt
See opinion OF Court, 5 Wallace 1893 TO 2O5.
In this supposition the Court were entirely
hmistaken for the reason that at the time when
said subscription was made there was no such
valid authority as was supposed. sTa 1921
The Act OF March Sd, 1868, was exhausted
in 1858 by the issue of the full amount author r
lied to be issued under it. The whole of
which Is now outstanding as debt against
said City +@A
See Record, PIP. 266 to 269. d21tqsih ltt994
Hence, at the time when this scrip was is
sued in 1856, the said Act of March 22d, 1858,
was no authority for the issue OF the same.
The decision of this Court, therefore in this
case, based upon the hypothesis that sand Act
was then in tull force and valid authority
for making this subscription is wholly inap- q
| pncable to the case as it is now presented
1 That decision held this srbscrip ion and
the issue of this scrip valid by reason of that
law. suppOs1ng it to be in full force but it
now appears that the law had been exhaust
ed more than three years previously, and
therefore it was no authority whatever for
this scrip or subscription. Eh 1921
We are, therefore, not asking the Court to
reverse it's former decision, but have present-
ed new case on the facts, which renders the
former decIsion inapplcable to this case
as il is now presented. q tAfpi
In consequ snIe of this misapprehension of
the real facts o: the case on the former ap.
peal, the true question involved in the case
and presented by the counsel forthe present
plaintiff In error was not considered by the
Court nor was it necessary that it should be
had the facts in reality been as the Court as
sumed them to be. ,4tfas.4 g,.at3sastf .,ar
This apprehension is now removed and
The facts OF the case as now presented show
that the only pretense OF authority upon
which the City Councii assumed to act in
making this subscription and issuing this
scrip was section 0 the amended charter
approved March % 1858.
The real question then in the case u.s. was
that Act valid and sufficient authority for
The subscription TO the stock and the issue of
this scrip. t4o5t .iE ftd s.l.a
500 "a H. 3mif VII
There was authority In the city to SUBJ
scribe to the capital stock and issue its Or
ders or scrip in aid of the Kenosha 81 Beloit
Railroad Company, and the scrip itoued for
that purpose is therefore, void st eii~4 a
b. Each OF The orders or scrip counted upon
shows on its face, that it was issued, - in aid
of the Kenosha q Beloit Railroad Company =.
and no. for any municipal purpose The
holders thereof all took it with iufl notice of
the purpose for which it was'issued, and were
bound to inquire into the authority Of the
city to issue 1t, and cannot be regarded as in
nocent purchasers or holders without notice,
and entltled8 TO protection, if there was no
authority for it's issue.4~s ftlatiel Els b0tsy 81
9 The plaintiff, in order to recover, was sound
to show affirmatiyely, that snch authority ex-
listed. There was no pr assumption in his ia
yor on this point.
In the case of Thompson VS. Lee County,
Wallace, $780, this Court say op a0 naa
"a county or other municipal corporation,
" has noinhercnt right of legislation and can
g not subscribe for ste ck in public improve
= ment, unless authorized to do, SO by the IS
Legislature Such Incorporation acts who'll h
81 y under delegated authority, and can ex- J.
Is erclse, no power which is not in express
terms, or By fair implication, conferred up
ION il. But the legislature OF State, unless
restrained by organic law, has the right to
thorZe municipal corporation to take
g stockin q railroad or other WORK OF inter
" nal Improvement, to borrow money to pay
:" for it and to ,evy tax to repay the loan.''
The question: therefore, for our consldera
Itioniis, was the city of Kenosha authorized to
issue these orders in aid q said railroad com
pany? ''4fhN $3.50 ~.
The pretended authority upon which the
city acted, aswe have already seen, was Sec
tion S, Of the amendment to the City Charter,
approved March 23d, 1853, and the ordinance
and other proceedings, passed BY said city,i
pursuance of said act. Record PIP 259 TO 262.
II We deny that said act and proceedings I'M
tder it were any authority for the issue Of said
scrip or or ders for the reason that said sec
tion of said act was in direct contraventIon
of Section 3 of Article II of the Constitution
of the State of Wisconsin, which is as lol-
Flows ~ b3s4 49, s,l.s
1T shall be the duty of the legisl AZURE,
9 and they are hereby empowe cred to provide
9 for the organization OF cities and ineorpora
q" ted villages, and to restrict their power or