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GELPCKE V. CITY OF DUBUQUE, 68 U. S. 221 (1863)
U.S. Supreme Court
Gelpcke v. City of Dubuque, 68 U.S. 1 Wall. 221 221 (1863)
Gelpcke v. City of Dubuque
68 U.S. (1 Wall.) 221
1. Where some parts of a contract are illegal, while others are legal, the legal may be separated from the illegal if there be no imputation of malum in se, and if the good part show a sufficient cause of action, it is error to sustain demurrer to the whole.
2. Where suit is brought on a contract made by a city, where the laws regulating it require the consent of two-thirds of its electors to validate debts for borrowed money, such consent need not be averred on the plaintiff's part. If with such sanction the debt would be obligatory, the sanction will, primarily, be presumed. Its nonexistence, if it does not exist, is matter of defense, to be shown by the defendant.
3. A contract made by a city to pay a sum of money with interest to a person who has assumed the payment of interest on some of the city's debt -- as well interest to become due, as interest already clue -- is not a "borrowing of money," but is a contract for the payment of a debt, and, as the last, will be sustained, when, if the former, it might fall within prohibitions against the city's borrowing money except on certain terms.
This suit differed both from the principal and from the preceding case in that it was not upon bonds issued upon the city, but was upon an instrument of writing by which the mayor and recorder
of the city had entered (Feb. 7, 1859) into a contract with the same Gelpcke and others, that if they, Gelpcke and others, would pay or advance the interest due on various bonds already issued by the city (part of the interest then due, and part to become due), and would advance a certain sum of money to enable the city to pay various pressing pecuniary demands upon it, the city "covenants that its city council shall by ordinance require" a certain tax, to be appropriated for the payment of this debt, and that it will convey unto F.S.W., as trustee, all its real estate, of whatsoever nature the same may be (excepting that appropriated to public uses), in trust for payment of the debt. To the suit on this contract the city put in three demurrers. Two of them related to these or other provisions of the contract; "a contract," each demurrer alleged, "the city had no authority to make." The third one was founded on the provision of the 27th section of the charter (see ante, p. <|68 U.S. 176|>176), and was because the petition did not show that the proposition to borrow money had first passed the city council, nor that it had been submitted to vote, nor that it had been adopted by two-thirds of the qualified voters of the city. The court below sustained the demurrers and gave judgment for the city, which on error here was the point brought up. No argument was made on the first two demurrers. The third one was argued in No. 80.
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