The weekly Ottumwa courier. [volume] (Ottumwa, Iowa) 1857-1872, 1857-08-13

part therein-and there being no approval of
the Governor.
So far as it is statement of accounts or a set
Element, it is binding, and section third there
fore and such other parts of said agreement,
as can be regarded as a settlement with the
company as contractors or creditors, is valid
and subsisting under the law, February s, '57,
Laws Of 1857. page l3s, section %.
BY Wright c. J. Note, I have no do ,bt but
that this agreement might be binding and val
id as settlement, or compromise Of claims
preferred, but for the fact, that taking 1t all
together, conclude that so far as it can be
called, or termed a settlement in its terms,
such terms are made dependent or conditioned
upon these provisions which are Genominated
the contract parts, that such contract parts
were the inIucement to such settlement, Gas
such settlement was the inducement to the
contract part that in short the clauses rela-
ting to the settlement and those relating to
the contract proper are so intimately connect
ed, that you cannot sever, and hold the one
bii.ding-and the other not-The entire con-
tract is valid, or it is all invalid-But wish
to add farther, that the petition does not seek
to avoid said agreement, either as contract or
settlement--rhe State insists upon ITS validi-
ty and binding force, and I cannot, therefore,
see why, as the case now stands, it should not
be carried out and enforced.
4. The act of January 29th 1857 in relation
to the Demoine River Improvement, sis it
valid as against the Company, and how far
does 1t invalidate the contract of December
29th 1856 or aEy of its parts ?"
The controct of June 9th 1854 being held
valid, 1t follows as consequence that the act
of January 29th 1857, in its essential features
Is of no practical force or effect. The predi-
cate, or basis, upon which it was enacted, (the
inval;dity Of the previous contracts with the
company represented by the Reator,) proving
to be incorrect, it Of course has nothing upon
which to act. (Stockton J. Contra.)
The foregoing position Of course is not to
to be construed as holding that said act can, in
no event, have no operative effect. The Com
pany may have forfeited all rights acquired
under such contracts, or may voluntarily as
sent 10 notifications of existing contracts, or
make new and other arrangement under said
act, or some other individual or Company, (if
the present Company shall appear to have
forfeited their contract,) may be contracted
with, and under these and perhaps other cir
cumstanees, the said act would certainly OF
be without force and effect. But SO far as it
treats the contracts referred to as being inval-
ii, and that the company have no rights there
under, 1t can as already stated have no effect.
What is meant by the concluding clause of
the contract Of December 29,h 1856, which
provides, that in the event of the passage of
any act of the Legislature invalidating the
rights OF either party TO this agreement, then
it shall become imperative and void, is per-
haps no: very clear. We conclude however
that at least it cannot mean an unsucc essful
attempt to invalidate, and that therefore said
act as already shown being of no practical
force or validity, the rights of neither party to
said agreement can be said to be invaiidated,
and that therefore said contract or agreement
IL not imperative by reason of anything in said
act contained.
(Stockton J. not asserting to 80 much of
this position as treats said act as invalid for
holding that no valid contract had ever been
made, he of course holds the said act opera
tive and yalid.)
5. Under the contract Of June 9th 1854,
is it proper to include in the estimates to be
paid by the State In lands, the salary Of the
Book keeper and the rent OF Office by the
company?
We unite in answering this enquiry in the
negative. The State, (through the lands, pays
the State officers and those engaged in the
the construction Of the work and not the Off
Gers and servants of the company proper. The
company we think is paid oy the considera-
ton provided for in the principal contract,
and should pay its own officers and employees,
and the expenses of the same.
6. We are to enquire finally whether the
relator is entitled to the writ of mandamus
as prayed for in his petition.
A majority Of this court concludes that even
il the contract Of June 9th 1854 is valid yet
under the showing made in the petition and
exhibits, the writ should not be granted.
First-Because the petition does not show
that 90 much Of the said contract as requires
one fourth of the work to be completed iu each
year has been complied with.
Second-That this is only proceeding in
another form to enforce the specific perform
ance Of this contract, and that the petition
does not show a performance on the part of
the psti'ioEing party, nor readiness. willing
ness or effort to perform.
Third-That from the petition and record it
is doubtful at least, whether the amount
claimed in the petition or any amount in fact
is due on the contract and settlement with
Manning.
Wright J. do not think that these questions
legitilnately arise at this stage Of the case.
The cause is before US by appeal from the de-
cission Of the cour: below, on the demurrer
to the petition. This demurrer OF course ad-
mlts the truth Of those facts which are well
pleaded in the petition. Taking the petition
as true therefore and unanswered, think that
the commissioner should be required to certify
the lands AZ claimed, or show cause in answer
to the writ, why he does not. In showing such
cause tho questions suggested BY the majority
Of the court might legiti.nately arise.
At present ! think the matters for our deter