7 Wis. 688 | Wis. | 1859
Ry the Court,
This is an application for a peremptory mandamus, to be directed to the common council of the city of Madison, commanding them to cancel, re-consider, and strike out of the tax-roll of said city, for the year
The common council of the city answer, in substance, to this part of the relation, that these bonds were issued to John Wright by virtue of the ordinance passed by that body on the 3d day of January, 1857, (a copy of which ordinance is attached to and made a part of the answer,) as the price and purchase money of the west half of the south-east quarter of section twenty-one, in the town of Madison, which had been before that time, purchased of the said Wright, by the common council, for the purpose of a cemetery for the city, agreeably to the power and authority vested in said common council, by the act of incorporation, and which premises Wright had conveyed to the city for the purposes aforesaid, by a deed bearing date 6th of January, 1857, duly witnessed, acknowledged and delivered to the city on that day. The common council further state, that in consequence of the absence of the mayor, and the sickness of the clerk, and the want of any memorandum or record, they are unable to state the exact day the bonds were executed, but that the day they bear date was not in fact the day, of their execution; and they claim that they were legally and properly issued, and that they are binding upon the city, and that the common council in justice and good faith, are bound to provide for the payment of the interest upon them, and that the eight hundred dollars included in the tax roll, which the relator desires to have struck out, is for that purpose.
It was assumed upon the argument, and probably correctly, that the indebtednes oí the State itself, already came up to, if it did not exceed, the constitutional limit, and it was contended that this provision was intended to restrict the aggregate public indebtedness of the State and municipal corporations, in time of peace, to one hundred thousand dollars. We are unable to adopt this construction of the constitution. To our minds the provision was clearly designed to apply to a State indebtedness, and restricts the legislature from contracting a debt on the part of the State, exceeding a hundred thousand dollars. But we do not think it was intended to apply to debts contracted by municipal corporations, towns and counties. The language of the provision is plain, and evidently refers to a debt on behalf of the State, and contracted in its political capacity as such; and cannot, without great violence, be held to apply to the debts of cities and municipal corporations. The debt restricted is a State debt, not a county debt or a city debt. By another provision of the constitution, § 3, Art. 11, it is made the duty of the legislature to provide for the organization of cities, and to restrict their power of taxation, assessment, borrowing money, and contracting debts, &c. We cannot discover that the legislature restricted in the charter the power of the common council to contract debts, and some provisions of the charter obviously contemplate that debts will be contracted against the city. Chap. 7, §§ 1 & 3’. We therefore conclude that the ten thousand dollar indebtedness, contracted by the city to purchase cemetery grounds, is free from all constitutional objection.
Something was said upon the argument in reference to the time the bonds bore date, and it was stated, either the day they bore date, or the day they were actually issued, was Sunday. The bonds were issued under and by virtue of the or
The motion for a peremptory mandamus, must be denied.