Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1891-02-05

CURED this morning in causeway in
his hundred and man had narrowly
escaped being killed and asked that he
be excused, so that he could have the
damage repaired Immediately. His re-
quest was granted.
u. G. Bradford, attorney for the court,
submitted written opinion in relation
to the validity Of the promissory notes,
heretofore made by the levy court, to
secure the floating indebtedness of said
county asked for by resolution yester-
day.. He cited the act March, 1881
providing for the borrowing of $500, 900
TO pay off the floating Indebtedness of
the county, and the section of the same
prohibiting the levy court to contract
any floating debt or borrow any money
lin addition to the $200,000) exceeding
the sum of $4,000 in any one year, and
when any such floating debt shall have
been contracted it shall be paid out of
the taxes of the next year. Another
section of the act hold the members of
levy court voting in favor of such viola
ton personally liable.
Mr.. Bradford finds that there are out
| standing promissory notes aggregating
$S3,O00 held by sundry banks which
have discounted them. These notes re-
present the floating Indebtedness con-
| tracted since the passage Of the act, ex-
cept the sum of $4,000 which was owed
/ by the county before the acts passage.
The attorney hold that the year relates
| TO the calander year--from the expira-
ton Of the 31st day of December to the
beginning of January a year later, To
| quote the words of the attorney:
AS the contracting. of any Indebtedness
| or the borrowing of any money by the
county in any one calendar year in SO far
as it was in excess of the sum of $4,000
was rendered illegal by said act, it there
fore follows that any and all promissory
notes OF the county given OBSCURE the pay
ment Of such Indebtedness or borrowed
| money We're, to the extent in which they
included such prohibited excess, illegal
and void. And | am of the opinion that
it was and is illegal for the levy court
to make and use any promissory note or
notes for the renewal in bank or elsewhere
OF any other note or notes of the county in
SO far as the latter include either medi-
ately or Immediately any excess of in
debtedness prohibited by the act
IL may be further remarked in passing
that any or all bank officials dscounting
any OF such notes were and are charge
able with knowledge of the provisions of
the statute in question. But it should be
county in any one year may have unlaw-
fully borrowed an amount in excess of the
legal limit does not necessarily show that
any particular note for Sl0, 000or less given
to secure a portion of the total amount
borrowed is a nullity; for the levy court
had and has Il right to borrow money or
contract Indebtedness up to the sum of
although it is prohibited from
borrowing money or contracting indebted
ness in excess of that amount during that
year. Any note or notes therefore in so
far as given to secure the payment Of the
whole or any portion of the sum of $4,000
of Indebtedness first contracted in any
given calendar year would be valid for no
subsequent illegality on the part of the
levy court in contracting additional in
debtedness or borrowing additional money
could in any way affect or defeat any note
or notes legal and valid at the time Of the
execution and delivery thereof.
There is practical question of fact prob
ably attended with some difficulty to be
determined by the levy court, upon this
branch of the subject as it best may, by an
examination of its books and accounts
namely; What promissory notes of the
county outstanding, whether original or
by way of renewal were given to secure
the payment of Indebtedness legally con-
tracted underth act, and what promissory
notes of the county outstanding, whether
original or by way of renewal, were given
to secure the payment of money or indebt-
edness the borrowing or contracting of
which may have been prohibited by said
act
There is a further question of fact to be
determined in like manner by the levy
court, namely whether any portion of the
indebtedness of the county which may at
first sight seem to have been illegally con-
tracted was incurred in case of emergency
arising from the destruction by fire Of pub
lie buildings or accident to bridges as men
toned in said act.
Another question which has been sug-
gested by my examination of the subject
submitted to me relates to the duty of the
levy court with respect to providing for
the payment Of Indebtedness contracted or
money borrowed lawfully under said act.
The statute in question first restricts the
levy court to the sum of $4,000 of floating
Indebtedness in any one year, and then
makes it the duty Of the levy court to pro-
vide for the payment of such Indebtedness
out of the taxes to be levied in the next
succeeding year. The evident intent of the
act is that the average floating indebted
ness of the county from year to year shall
not exceed the sum of $4,000. In my
opinion it has been and is the legal duty
of the levy court under said act to provide
for such payment out of such taxes so
levied; and the omission so to do and the |
giving of promissory notes in renewal of
such indebtedness after the time has
elapsed in which it should have been paid |
out of the taxes, constitute continued |
breach of legal duty
Another point which materially affects
the question of the legality or illegality of |
outstanding proinisory notes of the county, /
relates to the discounting of the notes
given by the levy court in order
to make payment Of other notes then or
heretofore matllred, If, for instance, a
promissory note be given in one wear for
$4,000 of floating Indebtedness, and if
during the next year the levy court should
contract Indebtedness or borrow money to
the amount of $4,000 and subsequently,
in the latter year the levy court should
have note discounted in some other bank
than that the holding the note given in
The former year or renewal note in place
thereof for the purpose of making pay
ment of the same, | am of the opinion
that the discounting of the note for the
purpose of paying the original or renewal
note would constitute the contracting of
Indebtedness or borrowing money under
he provisions Of said act and would there
5ore be unlawful as a prohibited excess of
SlO,uO0ln the last year over and above the
ioating Indebtedness of $4,000 lawfully
previously during that year
Another question of fact thus presents
tself to the court for its solution of refer
nee to the books and accounts thereof
namely, what promissory notes heretofore
'iven by the county represent original dis
cunts or renewal of notes originally dis
ounted in any given calendar year in one
'ank for the purpose, of making payment
# promissory notes of the county held by
mother bank where previously in the
anne year the levy court had contracted in
ebtedness or borrowed money to such an
mount that the amount of such discounts
+ renewals added thereto would be in ex-
ess of the sum of $4,000.