The herald., 1895-10-29
hHD UNCONSTITUTIONAL
The Law AbOlishing Ger
tain Offices
DUNN RENDERS IN OPINION
The City Attorney Goes Deep
Into the Subject
HULL AND GISH ARE SAFE
Judge john S. Chapman Comes to
the Rescue
HULL AND GISH ARE SAFE
The acknowledgements Office Had Also
Been Consulted
The Legislature Had No Right to Delegate
Certain Powers to the Council.
Some of the Omissions
in the Statute

City Attorney William e. Dunn yester
day finally put an end to the suspense
which has been agitating nearly every
department. of the municipal government
for over three weeks, by filing an opinion
which declares The statute giving this
and other cities the right TO abolish the
two Offices of CITY assessor and city tax
collector, to be unconstitutional. The
arguments advanced in the matter are the
same as those which have been printed
In The Herald from time to time, since
the Citizens league first filed its petition
for the proposed consolidation.
The opinion from the attorney gen.
erals office referred to by Dunn. is tie
one which has heretofore been published
in tbese columns as having been written
BY Deputy Attorney-General Henry
Carter, which was asked for by Tax Col-
lector John Ii. Gisb but was never for
mally rendered. The CityAttorney COM
munication upon the subject is in full as
follows:
In the matter OF the abolishing of the
Offices of CITY tax collector and city asses
sor, | have made careful examination
OF the law under which the proposed
change was to be made, and am of the
opinion that the act is unconstitutional.
and that in addition to being unconstitu-
tional it contains several provisions and
omits some necessities.
First, the act provides that it shall
have No force in any municipality unless
the legislative branch of the municipal
:ty shall elect t, take advantage of it. In
short, the act places in the city council
power which the constitution clearly
gives to the legislature exclusively and
which the legislature cannot delegate to
any other body.
h; yix IN a ri a
power to abolish officers who have been
elected under d charter created under the
constitution of the state, and were the
act to he taken advantage OF by the city
council they would be exercising the
power of imposing additional duties and
responsibilities upon the county tax col
lector and county ASSESSOR, which is a
right reserved to the legislature alone.
There are other reasons in my oninion
why the act is unconstitutional. but this
one that have given seems conclusive.
The act provides for the collection of
all city taxes by the county tax collector.
These taxes would amount to something
like $500. 900 a year. and it will be seen
that no provision is made for the giving
of a bond BY the county tax collector, and
under the act he could NOT be compelled
to pay over the collections made by him
to the city treasurer until the whole
assessment was collected.
There are other omissions in the act,
ana maTlV OF 1C5 prONlSlUHS Will D6 lOu0u
very difficult to reconcile with the gen.
ersl scheme of government laid down in
our charter.
Under ordinary circumstances | should
not consider it within the province of
the city council or the city attorney to
pass upon the constitutionality of acts of
the Legislature, but in this particular in
stance, should we proceed to abolish these
o.nai ces under the act and a determination
OF court not be reached at an early date,
the whole tax levy for the next year
might, and probably would be invalida-
ted. For this reason | have felt II my
duty to make careful examination of
this matter and report TO you my oonclu-
sions.
The matter is of so great i'm Importance to
the city that | have procured the opin-
ions of some of the best attorneys in the
state upon thu subject, and these opinions
concur in finding the act uncOnstitution
al. I have in my office the written opin
ion of the Hon. J. S. Chapman, which is
open to the inspection OF any OF the mem
bers of the council, should they desire to
examine it. | have written for the opin-
ion of the attorney general upon the mat
ter and have been informed by lawyer
connected with his oice1 thar they havs
also found the act unconstitutional. The
written opinion is not hrre, but I am
satisfied it will follow in the lines of tn e
opinions already procured.
1t is but proper to say in closing, that
the results attem pied to he arrived at by
this act would undoubtedly result in a
great saving to the city,as we'll as a great
convenience to the people, and / would
advise that the council put the matter in
the hands OF a committee to prepare the
necessary change. either BY way OF amend
ment to the charter or by general act of
the legislature.
Such an act Of the legislature should be
made general in its character and so
framed as to apply to all cities of the
state, or at least to all cities , of the same
class, should be certain in its terms and
not leave to the discretion OF the city
council whether or not Its provisions
shall be carried into effect.
AS [ have stated before, it is not the
province of the city attorney or the
council to pass upon the contitutionality
of laws. but as the matter of aboiishlng
these Offices is left to your discretion, 1
think il is your duty to take into consid-
you aid so in the face of the fact that the
law is considered unconstitutional. 1t
would be impossible to begin an action
testing the validity OF the law which
the April term of that court. We know
as matter of course that the supreme
court wouio take some time to consider
50 important a matter, and that IN all
PROBABILITY the court would take the
ninety days provided by law in which to
held unconstitutional by that court il
would then be too late for the city t,
make an assessment for the coming year,
as this assessment must be begun in
March. For the city to be deprived o.
its revenues for one year would be disas-
trous: it would leave it without the
means of running the government for @
year and of paying any portion of its
bonded Indebtedness, or the interest there.
ON. due in that veai.
The opinion was referred by the cour
ell yesterday without de bate.to the specia
committee having the matter IN charge.
Councilman Munson, the chairman Of
the committee, expressed himself publicly
IN favor of enforcing the abolish m ent
law in some shape. He had no definite
suggestions to advance upon the subject
but ne thought that the law was too good
one for tue taxpaying public not &c
have the full advantage of its essential
provisions.