The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-06-08
PAYMENT BY BOND.
Judge Jacobs Gives an Opinion on It's
Legality.

The difficulty experienced in securing
bids for bonds issued to pay for street i'm
provements, on account of the question as
to their validity unless authorized by
popular vote, has given the council some
trouble.
Alderman Miller, as chairman of the
judiciary committee, applied to Corpora
ton Council Jacobs for advice, to which
he has made the following response:
In your communication of June you ask the
corporation counsel to take the necessary steps to
obtain the opinion of the supreme court of this
state on the question of the rightfui power of
the city of Seattle to issue local improvement
bonds, as provided in the charter. Secondly
you ask my opinion as to the validity OF
these bonds and the power Of the city to issue
them without any election and the concurring
vote of three ifths of the voters participating
in said election.
AS to the first, have already given my views
OF what are politely called friendly SUITS" and
have seen no reason to change or modify the
views before expressed by me, yet If the courts
are willing to hear and determine questions
thus raised, / certainly have no objections to
doing what you desire, and will Immediately
commence proceedings by drawing a complaint
or causing one to be drawn, so that the ques-
tons sought to be decided can be raised by
demur.
As to my own opinion, will state it briefly.
Taking it for granted that oil the preliminary
steps have been regular, and in strict compli-
ance with the provisions of the charter, can the
city issue these bonds without vote authoriz-
ing 1t so to do? If the Indebtedness of the city
did not exceed ~ per cent of the assessed
valuation of last year, there could be no doubt
on the question, for all doubt has been re-
moved by recent decision of the supreme
court of this state
Murray VS.. Fay ct al, commissioners of Pierce
county, decided this term-volume 26, No. s,
page 533, Pacific Reporterl
But the city's Indebtedness is far in excess of
that per cent. Then the question resolves itself
into this: Are such bonds an Indebtedness OF
the city within the meaning of statutory and
constitutional provisions? III SO, then three
hfths vote is necessary. Bonds are but mode
OF payment There are two modes of payment
provided in the charter-.he mode of immediate
payment, or the old mode and the mode of pay.
ment by bonds. Under the first the city issues
its negotiable warrants to the contractor as the
work proceeds. Under the second mode the
bonds are sold and the contractor paid in cash.
In the first case the city is liable on its warrants
when 1t fails or neglects within a reasonable
time to collect the money from those who own
property in the local assessment district. This
has been the uniform ruling of the court; hence,
IN ali these suits negligence has been alleged
pAo'Su. III OtHer WORDS, the ilaDlllLy OF the
city Is only contingent until it becomes fixed by
negligence.
The lndorser of negotiable promissory note
is not debtor to the holder until the note has
been presented and payment refused Neglect
likes the liability in the one case notice in the
other. Whether warrant or bond. IL is hut a
mode OF payment, and the relation of the CITY To
each Is the same. If it is a debt of the cifv in
one case, it is equally so in the other So that il
the objection is a valid one as against bonds ft
is equally valid against warrants. Then. as ve
have passed the 115 per cent limit, we have ex-
hausted our powers, and can do nothing with.
out threeffths vote of the electors. You GEN.
tlemen, If this logic be correct can have the
satisfaction of knowing that you did NOT create
this financial palsy.
l have more than intimated above that 4, NV
judgment the objection was not a sound one
think this eonclusively appears from the hrief
statement made. do not know that I can add
to its force or conelusiveness. will saw how.
ever, that the word used in the constitution Is
indebted debt is not only certain in
amount and in time of payment, but is nersent
and absolute in its obligation. In this last nar
ucular il differs from liability. The eitv ,nav
be liable 10 pay on the neglect or failure Of
others, but this is not debt because IL is mt
absolute, but contingent
The city is liable to persons using its s.roe.s
for injuries resulting from neglect 10 rans;r
but II Is not indebted TO any Injured narson
until Judgment is obtained. A Contingent dnht
Is thing unknown to the law and uukno,r, n
accurate language.
q Xyra fhagg