The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1881-02-18

The City Charter and the Council.
EDS. NEWS: In the report OF the
proceedings Of the city council, pub
lished in your issue of the 9th, an erro-
neous impression may be conveyed.
The committee appointed to examine
my books reported that up to December
LIST, so far as my individual account
stood, owed the city $35.12 The city
attorney. one of the committee who made
an examination as To the fees due the
marshal, certified that he was entitled To
$7345, and that I should retain that
amountout ofnny money due the city. To
pay this there was then $35, 12, andth bal
ance Of the $500 was to be made up in
fines subsequently collected, the full
amount of which has rot yet been re-
ceived
The last city council adopted report
that the marshal was not entitled TO said
fees. and that should pay the same over
to the city treasurer. and they based their
claim to it on the ground that an ordin-
ance was passed in 1876 which deprived
the marshal of these fees
In section "a of cities of the second
class (the charter it provides that the
police judge shall retain out of the fines
collected the fees of marshal in certain
cases dismissed. The city attorney GER
titled that as stated that they amounted
to S7345.
The question presented is this: Can
the council by an ordinance change or
annuI the city charter: l had supposed
that no one would contend that it had
that power. There has never been q
book written upon this subject, or an
opinion of court published that carried
any impression of that kind, but they
all uniformly hold that in so far as an
ordinance seeks to change, modify,
abridge or nullify the charter, just so far
the ordinance would be absolutely void
And ifvOid, then it would not bind the
marshal nor would it effect the action OF
the police judge.
The charter bears the same relation to
the council that the constitution does 10
the legislature. 1t is power superior
| to that of lawmakers in the one case and
above the power of Reputation by the
other. That which is created is inferior to
the power that creates. The council de.
rives all its powers from its charter, and
it cannot even pass any ordinance unless
1t is by the powers conferred by the leg.
islature. Hence to assume that, even il
they passed an ordinance that would,
considered by itself, deprive the marshal
| of his fees, still If II conflicts with the
fundamental law under which the city
exists, it can have no binding force.
| The charter is explicit as to my du.
| ties in such cases, and l must be excused
| if believe that the charter is of greater
| binding force than a resolution of a coun.
Gil in derogation of its provisions.
wish to say that personally have
no interest in this matter. l am ready
and anxious to pay over all moneys that
do not belong TO me, but t0 pay it TO the
treasurer would be no bar to the claim
of the marshal, as / believe. All de
sire is to dispose Oft in such way that
l shall not be held liable for it again.
l proposed to one of the committee
that the city attorney might draw up the
facts of the case, and let Judge Peters
now holding court here, decide it. which
could be done without any costs, and
that the marshal and myself would
| abide by his decision, but the PROPOSE
ton was not acted on.
G. b. BACHELLER.