Wichita eagle., 1889-07-23
n favor of the former. When municipal

vlding for the purchase of all necessary
buildings for the use of the city, and as the
lesser power is included in the greater. the
city has power to purchase land on which
difficulty is in discovering what means
the Legislature has provided for paying for
such lands and buildings. Subdivision l,
section 5, chapter SO, laws of 1887, provides
that the mayor and council shall have
power to levy taxes for the following pur-
poses to-wit: First-For general revenue
purposes. Second-For general improve
ments. Subdivision of the section afore-
said grants power to levy taxes for the
purpose of paying the interest coupons as
they become due on all bonds of the city.
Other sections of the act aforesaid make
various provisions for levying special as
sessments for the purpose OF paving, con-
structing sewers, curbs and cutters, etc.
10 summarize, the city has, therefore,
tour distinct funds; First, general revenue
fund; second, general improvement fund;
third, bond fund; fourth, spe-
cial assessment fund. For the
purposes Of this opinion all
consideration of the Third and Fourth
Funds is omitted as it is too clear for ar
gument that the city can use no part of
either said fund to pay or partially pay for
the proposed site. The question. then, is
can the city use either, or any part, of the
what extent?
Section 4 of the act of 1887 aforesaid
reads: THAT for opening, widening, ex-
tending and grading any street, lane, alley
or avenue, and for doing all excavating
and grading necessary for the same. and
for all improvements of the squares and
areas formed by the crossing of streets,
and for building culverts, bridges, via
ducts, and all crossing of streets, alleys
and avenues, the cost or contract price
thereof shall be paid out of the general
Improvement fund, except as otherwise
provided for by law" The law nowhere
else declares that the cost or contract price
OF any other Improvements than those
enumerated in said section 4, shall be pay
able out of the general improvement fund.
In the construction of statutes, all courts
delight to honor the maxim that the eX-
preston of certain things implies the ex-
clusion of all not expressed, 'eXpresslO
unius est exclusio alterius." Inasmuch
therefore, as said Section does not spe-
officially prescribe that site for a city
building shall be payable out of the gen
eral improvement fund, it follows under
the above rule of construction that the
purchase money for the land in question
shall not be payable therefrom. Exclud-
ing this fund, then, there is left only the
general revenue fund; and the money to
pay for said land if payable at all out of
any funds on hand, must be payable out of
the general revenue fund. For what pur-
pose or purposes dld the Legislature OF
Kansas intend this fund? The phrase
General Revenue" is, indeed, general; but
the very generality OF the expression shows
that it must have reasonable limitation.
For no one VIII suppose that under this
form Of expression every tax will be legal
which our city council should choose to
sanction, even though in their
coed the prescribed limit of six
u special tax general tax do not make it
so. 1t would appear that a fair and reason
able construction of the term general
revenue fund" would subject that fund to
the payment of all current expenses" of
the year, except such rs are payable out Of
one or the other of the three funds afore-
said. Among these expenses would be the
support and defense of such actions as the
city might be party to, the payment and
support of the various departments of the
city, and other charges of Il like nature
which are necessary charges, because the
effect of legal dischar,e of a corporate
duty. The council must then in their wis
dom first determine whether the purchase
price for the land in question Is an item of
current expense" If you shall determine
it to be such an item, then the use of the
general revenue fund, subject to limita-
tons hereinafter mentioned. can be justi-
fed, otherwise it can not be. 1t might be
well to add that the courts have construed
current expenses" as including only such
charges and expenses as are incidental in
the business of the city govern
nent for the current year. They have
meyer extended it to cover lasting improve
ments, the benefits wherefrom are perma-
nent and continuous.
AS there seems to be an impression on
the part OF some mem bers of your honora-
BILE body that any moneys in the general
fund of the city can be applied to the pur-
chase of said lots, conceding for the sake of
the argument. but for the sake of argu-
ment only, that such is the case, We are
nevertheless met with an insurmountable
obstacle in the first proviso of subdivision
20, chapter 80 laws of 1887.
Said proyiso reads as follows: THAT no
shall be incurred, or order or
of Indebtedness OF the city shall
be drawn or issued on the treasurer
in payment of tany Indebtedness, to
exceed the amount OF the funds on hand in
the treasury at the time"
That is plain provision, meaning ex-
actly what it says, by which the mayor
and councilmen are prohibited from In
curing any Indebtedness in excess of the
amount of funds on hand in the treasury
1t the time the Indebtedness is incurred
And it should be added that ''the funds on
hand" must be those particular funds out
IF which the proposed Indebtedness is pay
able. Each fund is consecrated to q par
ocular purpose. and the mayor and coun- |
cilmen have no right and no power to di- |
vert it TO any other purpose. The lots in |
question are to cost SIS, 600. The aggregate |
amount of both the revenue fund and the |
general improvement fund on hand in the |
at the present time does not ex- !
"a e IL
,ity average about $4,000 per month. Not |
until October will the county treasurer
pay over any additional money to the city |
treasurer. None Of the current expenses !
or July have been paid. The city, there |
ore. finds itself in this financial condi- |
jon: $4,000 on hand with which to pay |
he current expenses for three months, aY- |
,raging 81, 600 per month. Hence the con-
,luslon, any contract signed by the mayor |
md binding on the city for said building |
lite would at the present time be in flat /
yiolatlon of said 10th subdivision, illegal |
md void.
In reply to this conclusion it may be |
by some of the mem bers OF your /
honorable body that it is not proposed that |
he city shall enter into binding contract |
1t the, present time for said land, but that |
n lieu thereof the city shall take bond /
or said land. pay an agreed sum, say S.,
100 down, conditioned that the bal /
Ince be paid on or before a GER
ain date, with the further proviso that /
n case the balance be not paid at the stip- |
Hated time, then the sum already paid /
hall be forfeited TO the owners of the lots /
md the city incur no further liability. In /
,ther words the suggestion amounts TO
his: That the city take an option" on
he proposed building site.
My reply to that is the statement Of the 4
proposition is its own REPUTATION. On the
me hand cities of the first class in Kansas
lave never been given the express power
= ~ /