The weekly Ottumwa courier. [volume] (Ottumwa, Iowa) 1857-1872, 1860-01-12

L
There are, it is clains1, fair arguments and
some authority for. holding that the bonds
will not be declared invalid, though the coun-
ty might and could be restrained by the
Courts, if applied to, from issuing the same.
This view Of the case, however, 1 do. not pro-
pose to examine, as it will be discussed by
Stockton, j. who concurs withme in reversing
the case upon the ground that the objection
is made before the stock has been subscribed,
or the bonds issued
Ideny that under the Constitution (old or
new) the Legislature can confer this power
upon the counties deny in the second
place, that majority have any inherent
right to vote such tax, SO as to subject
the property Of the minority to. seizure and
sale for the purpose ofpaying tn same And
in the third place, affirm that the Legish-
ture never has conferred this power upon the
counties.
The argument is not strongly urged in IA
vor ofthe inherent right to vote. this tax, and
may therefore dispose of it in few words.
Taxation is an element Of sovereignty. Safety.
to the dearest rights of the citizen, demand
that thus should be so, and that it should not
be exercised, except when it is necessary for.
the welfare or safety of the public. All or
dinary taxation, whether National, State or.
County, is based upon this ground.
The citizen pays these taxes in return for
the protection AMI security which is gl,aran
teed and secured to him by law, and the po-
htical and municipal organizations created
for the like purpose. To support these gov
ernments, and these institutions which are
essential to their well-being and vital to their
continuance, he is subject to taxation. For
a purpose such ms that embraced in the
proposition submitted in this instance, he is
not boun1. However much enterprise may
tend to develop the material resources of the
county, they can in no proper sense be said
to render more secure his person, his life or
his liberty, nor to place his property under
more perfect protection. II is true that IN
telligence AMI knowledge may be more gen
orally di'tnsei, as consequences of the in
crease of railroal facilities. AMI the same is
true where mills, manufac.ories and ma
chinery is introduced, and yet il would
scarcely be claimed that county has the
inherent right, in its corporate capacity, to
tax the people for any such purpose.
The argument that a majority must rule
under our form ofgovernment, and that each
citizen, as member of society, must submit
to this rule, as applied to such questions, is
no less dan ,ero1s than fallacious Carried
out, popular will, when thus exercised, could
iegaliza the execution of the citizen--cauld
take As property and give it to B. These
Propositions would BE- regarded as monstrous.
ANa yet how is it tditferent when the majority
aets'Spt to tax the minority, without the au-
shos'sv of legislative sanction, for a purpose
les,t'rely foreign TO the support of Govern
msnt' isesno difference in principle, and
there Is nons certainly when viewed in refer
ence to thsss fn.isa,ntll rights which are
secured to US by the aatural law and which
no le s'slaton can take sSn US.
Then, again, the countie, exercise granted
pcxeFs and as municipal orgr.izations can.
not cxercisa any other. If n, exnrass,v
grantei, vet fnecsssary to carry o.t or ac.
conplish the purpose AMI object o, tho;-
creation. they may be exercised, but :,
otherwise. (McN,laavs. Lee county. 8 low,
BID If the power clainsl:in this Instance
has not been granite |, or is not necessary for
the fulfillnent Of the purposes designed h
the creation Of the corporation, tive conclu.
sion follows that its exercise would Ae illszal
and nu gatory.
But I pass from this part of the case to the
consideration OF the first AMI third pr,p,si-
tions before stated. For If the power can
under the Constitution. be conferred, and 4
the Legislature has, acting under the Consti.
tuition, made the grant, then we need not stor
to view it as one of inherent right. And
here again may abbreviate this opinion by
confinins myself to the question, whether
the power has been conferred, for if not, the
argument is at an end. tits claimed to be
given S ia Of the Code. This view has
never been held by any member oftLis Court;
and with the utmost respect for the learned
Judge delivering the opinion in the case OF
Dubuque Go. VS.. Dubuque and Pacific Rail-
road Co.. Green, where this PROPOSE.
ton is maintained, must say, that it is in
the very teeth of its spirit, as well as the
notorious and well understood history of our
legisla ion on this subject.
The language which it is claimed gives
this power. is as follows: "rhe County
Jndge may sub nit to the pe,ple Of his coun-
ty, at any regular election, or at a special ane
called for that purpose, the question: whether
money may be borrowed. to all in the erec.
tion of public buildings; whether the county
will construct, or aid ta caastruct. any roa
or b .idge soiict my call for. an ertraes.zi
nary expenditure whether stock shall bs
permitted to run at large, or at what time il
shall be prohibited; and the question of any
other local or police regulation, not incon
sistent with the laws of this State" Tn,
question is, what ''roais" are meant Doe:
this section embrace railroads, or only the
ordinary highways or roads Of the county .
1t is said that it is not to be confine to
the latter, because they do not require such
an extraordinary expenditure The argu,
ment, If true, proves too much. For if tie,
did not require it, then they are not within