Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-01-22
JUDGE HOLLIS OPINION.

The opinion Of Judge Holl is given in
letter addressed by that gentleman to Judge
ii. o. Beatty, and is as follows:
Judge II. O. Beqttg-DEAR SIR: Some time
ago you asked me 10 give you my opinion as to
the effect of q new charter upon the Act of
March IS, 1872, entitled IAN Act to provide for
the redemption Of the funded Indebtedness of
the city of Sacramento"
have been delayed in complying with your
request by a desire to examine this question
with considerable care. 1t is in my Judgment
of paramount importance TO the city, and l
think all citizens who understand the benefits
derived from the Funded Debt Commission will
agree with me that il is far better to do without
q new charter than to destroy the Commits ion.
Indeed know of no calamity likely to befan
the city fraught with so serious a financial dis
aster as would be the abrogation of this law
In view of the importance of the subject,
have devoted such time as could spare from
other engagements TO the examination of this
matter. l have now arrived at q COZ elusion,
which is quite satisfactory TO my own mind
and propose to give il you for whatever it is
worth.
First-It is my opinion that the adoption of a
new charter would have the effect to abrogate
the law in question and destroy the Funded
Debt Commission.
Second-It is my opinion further that any
provisions in the new charter providing for the
pespetuation OF the old, or for creating a new
Funded Debt Commission, would be held in
conflict with the provisions OF the new Consti-
tuition.
There are several reasons why believe the
adoption Of the new Charter would repeal the
Act creating the Fund Commission, which
will state in their order:
First-The ACT referred to is in substance part
OF the law regulating the municipal affairs of
this city, and it must naturally give way to a
new system of municipal government.
Second-The new Charter must inevitably
deal with the city debt, and it is a familiar rule
of construction that where new law covers the
same ground occupied by the old the old law is
IN M no lQt
is fully borne out by the following cases Peo-
pie VS.. Henshaw, l16 Cal, p. 442). Frazier VS..
Alexander, (75 CAL, l52); State VS.. Conkling, (l9
Cal. 5i2); City ard County of Sacramento VS..
Bird, Us Cal, 275).
Third-The Board OF Trustees of the city, the
Treasurer of the city, lax Collector, City. As
SCISSOR. the President of the Board of Tru.tees,
each and all, have duty to perform under this
Act IN aid of the Fund Commissioners.
A new charter would, of course, abolish these
Offices aud the Commissioners would be power
less to act without them. This last objection is
sometimes attempted 70 be met by saying that
the new charter could provide officers TO take
the place of those now named in the Act creating
the Fund Commissioners. No doubt this could
be done in form, but in substance it would be
re-enaeting the old law. 1t would not be merely
amending the old law, but IL would do some
thing moTe-it would give new life and vitality
to the Act because without this new legislation
the Act would be utterly Imperative; aud while
the new legislation would in due form be in the
nature of an amendment, II would, in fact, be the
re-enacting of a new law. This could not be
done under the present constitution, because II
would be special legislation applied to the
affairs of q municipal corp ration. In speaking
upon this subject the supreme Court of the
State. in the case of Thomss VS.. Ashworth as
Cal, p. 10 says; "A charter cannot be amended
BIZ special law. but while these restrictions
exist the Legislature has the power to control
the charters of all corporations by general law.
In the same case, on page !I they say; On
reading the Constitution it will be observed that
its trainers were particularly careful to restrict
the Legislature from passing local or special
laws, See Art. !, Sec. .: Art. IL, Sec. T. D, II.
IL II: Art p Sec J. s. II, and Sec. II OF Art. 10,
where legislative powers are conferred on eoun-
ties, cities, towns or townships oy the Conslltu,
ton such powers are still made subject TO and
liable to be controlled by general laws so II
will be observed that the meaning attributed TO
the last clause of Sec g. Art. II, is in accordance
with the general plan on which the ConStltu-
ton was framed-thst is, the inhibition OF spe-
cial or local legislation and the allowance OF
general legislation. Evils constantly arise from
SPECIAL Legislation, and such evils il was the IN
tentinn Of the Constitution-mskerst to prevent.
l viii give you my reasons for the opinion
that the old Act creating the Commission
could not be perpetuated, nor & new Com
mission be created by the new charter. In Con-
sideTing this question, the nature of the Funded
Debt Commission must be carefully Kept u
mind. 1t has been held ever since William
Pitt introduced his great funding scheme in the
English Parliament that Governments, whether
national, state, county or city, could lawfully
create commissions. CT. in other words, trustees
to handle, or deal with or buy up the pubic
debt of such Government This, however, can
not be done by the CO. .,Tnment itself; it must
in this matter act by trustee, as Ii cannot become
or act as its own trustee. II the City Trustees,
as such, should do what the Fund Commissions
ers are doing-that is. buy up the bonds and
coupons of the city-ihe bonds and coupons
thus bought would be cancelled at once and
cease TO exist. The act of the trustee would be
the act of the city, and the city. IN buying its
own coupons and tonds. would simply be pay
ing lis debts. With the Funded Debt Commits
sioners it is otherwise; they are the trustees fol-
the city. They take the city's money; with thi:
they buy ap the city 6ebt-ho2d; and coupons
hold them in trust for the city. and continue &c
collect the interest thereon. for the benefit o
the civ. int as any other houdn0lderwo do
This distinction between the Officers Of tAt