
    Same v. Same.
    No. 79.
    1. Where some parts of a contract are illegal while others are legal, the legal may he 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 i t 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 tho debt would be obligatory, the sanction will, primarily, be presumed. Its non-existence, if it does not exist, is matter of defence, 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 due — is not a “borrowing of money,” but isa contract for the payment of adebtj 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 tho preceding case in that it was not upon bonds issued upon tho 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 pecuniar}’ 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 de[>t, and that it will convey unto F. 8. 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. 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.
   Mr. Justice Swayne

delivered the opinion of the court:

The counsel of the plaintiffs in error have submitted no argument in regard to the two first causes assigned for the demurrer. We have not therefore considered the questions which they present. They relate to certain provisions of the contract which are claimed to be invalid. Conceding this to be so, they are clearly separable and severable from the other parts which aro relied upon. The rule in such cases, where there is no imputation of malum, in se is, that the bad parts do not affect the good. The valid may be enforced. That part of the complaint only which relates to the stipulations claimed to be valid will be considered. The residue of the complaint may be laid out of view as surplusage. The demurrer is to the whole complaint. If the part to be considered shows a sufficient cause of action, the court below should have overruled the demurrer.

i. It is claimed that the contract is for the borrowing of money, and that the complaint is bad, because it does not aver the sanction of two-thirds of the electors of the city. If the fact were so, the consequence would not follow. If the city could make such a contract with that sanction, the sanction will be presumed until the contrary is shown. The non-existence of the fact is a matter of defence which must be shown by the defendant.

ii. We are also of the opinion that the contract, except the provision for an advance to the city of $20,000, which it is stated has been repaid, is not for borrowing money. It bound the plaintiffs to pay the interest for the city upon the debts of the city already created and presumed to be valid. The city agreed to refund the amount, so paid- at the times and in the manner specified. Such a1 contract is neither within the terms nor the spirit of the provisions of the charter upon the subject of borrowing.

Judgment reversed and cause remanded.

N. B. The dissenting opinion of Mr. Justice Miller, given in the principal case, No. 80, applied to Nos. 79 and 81. See also the dissenting opinion of that Justice in Meyer v. City of Muscatine (post), as well as that case generally. 
      
       United States v. Bradley, 10 Peters, 360.
     