The weekly Ottumwa courier. [volume] (Ottumwa, Iowa) 1857-1872, 1860-01-12
Decision
OF THd SUPREME COURT OF IOWA ON COUNTY
RAILROAD BONDS,
DECEMBER TERM, 1850.

DECEMBER TERM, 1850.
'' ..s.. ' es :. = App... from the Scot
Scott County, opp. District Court.
WRIGHT, CD.
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 In
the stock ofany company for the purpose in
this vote contemplated. And this position
proceed to examine.
A brief recapituhtion ofthe cases in which
this question has been presented in this State
may not be inappropriate. 1t first arose
before our predecessors in Dubuque County
rs Dubuque & Pacific Railroad Company, 4
Green, l. in which majority Of the Court,
Chimney, j, dissenting) affirmed the power
Of the Legislature to authorize such sub.
scription. and that it had been given by IS
ia of the Code.
In subsequent case in the same Vol. 1.-THE
State cs Bissell, 3,s.) Hall, j., in speaking
ofthis point, says it"was not argued, and
the same question having been decided at the
Dec Term, 1853, of this Court, referring to
the case supra) is not examined. This de-
c'sion is not intended to sanction or deny the
legal validity Of that decision, but to leave
the question where that has left it."i
The question was first presented to the
Court as now constituted in Mcmillan, ct. al.
rs. Lee County, and the County Judge there
Of, Iowa 81, but was not then decided, as
the case was disposed of.upon othor and diff
ferent grounds.
1t was first decided by us in Clapp ps. Ce-
dar county, 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. that 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, an for the reason that it was
subject on which change was disastrous,
tor says Woodward, j., "If we were called
upon to daciae 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 ataempt were made ia
place it upon IS. IA ofthASCoic. unier the
power to aid in constructing fscds. we should
think very light of the argrnsat. If the
power exists, it may have some Other fonn.
dation. But this is suhjsct on which
change is disastrous" &c. W
In Ring os. Johnson Co.,-6 Iowa. essA
the action was up IN the coupons which had
passed into tn ! hands of an innocent holder
and the question now under consideration
was not argned, The case in 5 Iowa, Is is
referred to, however. very brieAy-it being
stated that 'the Cont has no change q
view.
In the case Of Mcmillan. et.9al. vs. Boyles,
Co. Judge, 6 Iowa, 30t and 391--the bonds
were issued, and taxes fevied t. meet the in
terest, and the petitioners sought to restrain
the county officers from collecting the same.
This Court h Vi held the vote to be irregular
d iowa, 3ll--and the Legislature, by an
Act Of 39th Of january, 1857, legalzed the
issuing Of said bonds, and declared said vote
to be regular, vail AMI legal The power OF
the county to take stock, is recognized by
reference to the cases previously adiuiicatei
and the case turned upon the question of the
power Of the Legislature to legalize the irreg-
ularity in the manner of submitting the prop.
osition. The power was held to exist, and
the order of the Court below dissolving the
injunction, was affirmed.
In the three cases ofGarnes, Algcr & Jun.
kin VS.. Robb, (June Term, 1853, the County
Treasurer had levied upon personal property
to satisfy tax thus voted. The owners
brought trespass and replevin, and among
other grounds, urged that the county had nc
power to levy and collect tax for this D ,r.
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
for the first time, to the present members o.
the Court before the bonds have been issued
and before the rights Of third parties hav,
interviewed.
By reference to the cases cited, it will b,
observed that have uniformly denied tn,
power, and have held as consequence tina
the bonds are invalid-that the tax could no
be collected, and that the vote afforded M
protection to revenue officers in levying upor
property to make the same. My dissent i
expressed in Clapp VS.. Cedar county, Rim.
IS johnson county. Mcmillan VS.. Boyles, ant
thou ,h not expressed in Garnes VS.. Robb, j
was because the previous decisions were sta
ted without argument, and they showed m,
position so clearly, that formal dissen
seenel unnecessary. In Mcmillan VS.. Boyle
County Judgs, c,ncnrred in the opinio
that the Legislature hal the power to legal
ize the irregularity, but denied the powe
ofths caaaty, th,l,h expressly authorizes
to subscribe the stock,
These references give US the history Z
this question in this State, to the preseu
late. As the majority Of the Court hav
concluded in this case-where the qusstio