El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-12-04

L
The 9th, 10th, 11uh, and 18th assign
menss bring into question the tax levi
| e to provide for the interest and s1nk-
ing fund for an issue of $40, 900 of bonds
| in 1856 for sewers. We think It Is not
necessary to discuss appellants propo-
sitions that sthe question of the lssu-
ance of these bonds was submitted to
a vote of the taxpayers as provided in
the constitution of 1876 instead OF the
qualified voters, as provided in the
! cha which was granted pr Or t.
the constitution, and that the purpOss
| for which sthes bonds were to be is
| sued should have been stated in con-
nection with the matter submitted to
| vote because we are of opinion that
| the levy for this tax in every instance
was greater than that allowed for the
purpose by the city charter. We OBJ
serve that for the year 1892 no levy
was made for the purpose of interest
| and sinking fund fer the sewer bonds.
and in each of the other .ye ar5 embrao-
ed in the recovery in this case, the
amount levied was more than sufficient
to pay the interest and provide to pay
| two per cent of the principal, which
was the amount of levy fixed by the
charGer. The charter, Spec. Laws of
1873, Sec. %, provides: And when
any bon Is are issued by the city fund
shall be provided to pay the interest
and two per cent per annum on the
principal as sinking fund to redeem
the bonds" Appellee contents first,
that a tax to raise five per cent of the
principal what was the provision at
the time of the issue) is tax to raise
| two per cent. We accede to this
view in so far as to believe that if the
! tax that was levied had been two per
, cent, it might be collected. But in ev-
cry instance we find it to have bee in
| nf% mol 1aA
by the provis on of the charter. In
respect to this view ppsllee shows
tn at these bonds wer. voted and issued
after the constitution of 1876, which
contained the provision that no debt
shall ever be incurred in any manner
by any city or county uni IS provision
is made at the time of creating the
same for levying and collecting a SUI
ficient tax TO pay the interest thereon
and to provide at least two per cent as
sinking fund. Art XII, Sec. 7.
This it. is insisted operated to amend
the city's charter in respect to the
amount it was authorized to levy for a
sinking fund. We are not of that
opinion. Suppose the charte~ in ques-
| ton had been granted after 1876. would
it be supposed that the Limitation it
pla les on the power to tax for sinking
fund, or rather the rate it establishes
for that purpose, would be in conflict
| with said section? We cannot see
wherein the charter provision should
! be deemed abrogated or changed by
| said section of the constitution. We
| conclude that the levy if more than
two per cent was excessive, aud the
particular tax not enforceable e, l Desty
| taxation o. 464. If this were suit by
the owner seeking aqui' able reli t
against such q tax, it seems he mlgh t
be required to pay to the extent OF
two per cent as a condition to the
& raining OF tie relief. Cooley taxation,
| 2nd. Ed. p. 43O
The 18TH 10th and Goth assignments
concern the validity of the tax levied
| to provide for interest and sinking
| fund to redeem the Ell Pa5o funded in
debtedness bonds, on several grounds
| to-wit: 1st The city had no power to
| issue bonds for the purpose of paying
| its floating Indebtedness; 2nd, such
power existed, if at all, by force of Art.
$50 j. Sayles Revis ed Statutes, and it was
not acquired by any ordinance or reso-
luton reciting the caption of that act,
! and adopting the same as provided in
such article; and 3rd, the provision
| made for interest and sinking fund was
| for at least two per cent of the amount
of the bonds annually and further
sum sufficient to pay Inter est, and the
contention seems to be that the pro-
| vision was not sufficient to provide for
| these bonds, which ran fer thirty
years. In the last named pos tion
| there is no force. Bassett VS.. Ell Paso,
| SO Tex.
In reference to the other two
rounds, besides tie s lid article 9S6 j,
the charter of Ell Paso (Sec. 81 of the
act of 1889 special laws.l provided that
he city may pass all necessary ordin-
anc,s to provide for funding or com.
| nrOmi 81 no the whole or auy part Of the
existing debt of the city or any future
debt" and that unless otherwise
specified such debt shall be funded O."
com prom sed in accordance with the
general laws of the state in force at
the time and applicable to cities.''
| Appellant insists that the. words