The weekly hawk-eye. [volume] (Burlington, Iowa) 1858-1860, 1859-12-31

- THs sUPARKR COURT o. IOWA on COUNTY
RAILROAD DoxDs.
December Tessn, sS0.
-. c... !; o., p 1Rst CO... A. = =
On the 18th Of December, 1858, The elec-
tors Of tho county Of Scott BY majority
vote, authorized the County Judge to sub
scribe e275 600 to the capital stock Of the
Davenport and Cedar Valley Railroad Com
pany, and 100000 to that cf the Re Claire
and Davenport Railroad Company. BY THU
vote hs was also authorized 70 levy tar 70
nav the principal and interest Of the Bonde,
not TO exceed one peF cent in each case ID
any one wear. On the eth Of the same
month these petitioners fled their petition
for an injunction to restrain the County
Judge from subscribing the stock and issuing
subsequently,, on respondents motion, was
dissolved and the bill dismissed.
Complainants appeal
Grant u True for Compliments
Hubbell 4 Putnam for Respondents.
WRIGHT, C. J.
Several objections are made by the bill,
and in the argument in this Court, to the
proceedings, submitting these propositions to
the people. The first in order Is that which
denies the right or power of the counties in
this state to borrow money or subscribe to
the stock Of any company for the purpose in
this vote contemplated. And this position
proceed to examine.
A briefrecapitulatio Of the cases in which
this question has been presented in this State
may not be inappropriate. 1t first arose
before our predecessors in Dubuque County
Us. Dubuque J. Pacific Railroad Company, 4
Greene, /. in which majority Of the Court,
KINNEY, >. dissenting) affirmed the power
of the Legislature to authorize such sub
acription, and that it had been given BY o.
ia oil the Code.
In subsequent case in the same Vol 1.-THE
State Is. Bissell, 1881 Hall, j., in speaking
Of this point, says it ''was not argued, and the
same question having been decided at the
Dec Term, 1858, Of this Court, (referring to
the case subrG) is not examined This de.
cision is not intended to sanction or deny tho
legal validity of that decision, but to leave
the question where that has left it,
The question was first presented to the
Court Us now constituted in Mcmillan, ct al
rs. Lee County, and the County Judge there.
OF, Iowa 3ll but was not then decided, as
the case was disposed Of upon other and diff
ferent grounds.
ltwas FIRST decided by us in Clapp Is. &c
dar county, 5 Iowa, Is. in that case, the
bonds had been issued and passed into the
hands ofan innocent holder. A majority Of
the Court held, under the authority of the
previous decisions, tLat the power could be
and had been conferred 1t will be seen,
however, BY reference to page As of that case,
that the decision was based alone upon the
ground that the majority felt bound by for
mer decisions, and for the reason that it was
a subject on which change was disastrous,
for says Woodward; j.: "If we were called
upon to decide this question now for the first
time, for this State, we should entertain heavy
doubts of the existence of the power on any
ground and if the attempt were made to
place it upon IS. ia Of the Code, under the
power to aid in constructing roads, we should
think very light OF the argument If the
power exists, it may have some other foun
dation. But this is subject on which
change is disastrous. DC.
In Ring rs. johnson Co.,-6 Iowa, 265-
the action was upon the coupons which had
passed into the hands of an innocent holder
and the question now under consideration
was not argued. The case In Iowa, Is is
referred to, however very brie6y-it being
stated that "the Court has no change o.
view.
In the Gaze of Mcmillan, ct al. VS. Boylcs,
Go. Judge, 6 Iowa, 304 and 39l-the bonds
were issued, and taxes levied to meet the in
terest, and the petitioners sought to restrain
the county officers from collecting the same.
This Court had held the vote to be irregular
% Iowa, 3ll-and the Legislature, by an
Act Of Goth Of January, 1857, legalized the
issuing Of said bonds, and declared said vote
to be regular, valia and legal The power OF
the county to take stock, is recognized by
reference to the cases previously adiudicated
ana the case turned upon the question Of the
power OF the Legislature to leealize the irreg.
uiarlty.in the manner OF submitting the prop.
osition. The power was held to exist, and
the order of the Court b, low dissolved the in.
junction, was affirmed
In the three cases Of Garnes, Alger a. Jun
kin vs. Robb, Dune Term, 1889 the County
Treasurer had levied upon pesronal property
to satisfy a tax thus voted The owners
brought trespass and repievin, and among
other grounds, urged that the county had no
power to levy and collect tax for this pur
pose. The question was regarded as settled
BY the previous cases, and was disposed of
by simply referring to them.
In the case before Us, the question is made
toI the first time, to the present members of
the Court before the bonds have been issued.
and before the rights Of third parties have
interviewed.
By reference to the cases cited, it will be
observed that have uniformly denied the
power, and have held as consequence that
the bonds are invalid-that the tax could not
be collected, and thst the vote afforded no
protection to revenue officers in leyying upon
property to make the same My dissent is
expressed in Clapp vs.. Cedar county, Ring
vs.. johnson county, Mcmillan vs. Boyies, and
though not expressed in Garnes vs. Robb, il
was because the previous decisions were sta.
ted without argument, and they showed nv
position So clearly, that q formal dissent
seemed unnecessary. In Mcmillan Vs. Boyies
County Judge, l concurred in the opinion
that the Legislature had the power to legal
ize the irregularity, but denied the power
OF the county, though expressly authorized
to subscribe the stock
These references give US the history ofthis
question IN this State, to the present date
As the majority of the Court have concluded
in this elsewhere the question is made be.
fore the bonds have been sisaed-that the
injunction prayed for should have been made
| proceed to state briefly the
ground upon which this opinion, so far as
Am concerned, is founded
For myself, as will be seen from what has
been stated, regard that it makes no differ
ence whether the objection is made in suit
On the bonds, or in proceeding by an in
junction to restrain the subscription to the
stock In my opinion the county las no pow.
sr, inherently or otherwise, to issue and sub
scribe stock for any such purpose and put.
ling it upon this plain, broad ground, deny
hat such bonds are valid, whether held by
The Railroad Co, or by an endorsee. There
are, 1t is claimed, fair arguments and some
luthJrity for holding that the bonds will not
De declared invalid, though the county might
md could be restrained by the Courts, if ap.
'lied to, from issuing the same. This view
# the case, however, do not propose to ex.
lmine, as it will be discussed by Stockton. j
who concurs with me in reversing the case |
,pon the ground that the objection is made |
'efore the stock has been subscribed, or the |