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

putting it upon this plain, broad ground,
deny that such bonds are valid, whether hel,
by the Railroad Co., or by an endorsee. :
There are, it is claimed, fair arguments ant
some authority for. holding that the bond:
viii not be declared invalid, though the. coun
ty might and could be restrained by tn
Courts, if applied to, from issuing the same
This view of the case, however, do. not pro
pose to examine, as it will be discussed By
Stockton, j. who concnrs withme in reyersin,
the case upon the ground that the objection
is made before the stock has been subscribed
or the bonds issued.
deny that under the Constitution (old o.
new the Legislature can confer this powe,
upon the counties. I deny in the seconq
place, that majority have any inherent
right to vote such tax, so as to subjeci
the property of the minority to- seizure and
sale for'the purpose ofpaying tn same. And
in the third place, I affirm that the Legisla
ture never has conferred tais. power upon, the
counties.
The argument is not strongly urged in "a.
vor ofthe inherent right to vote this tax, and
may therefore dispose of it in a few words.
Taxation is an element of sovereignty. Safety
to the dearest rights of the citizen, demand
that this 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.
binary taxation, whether National, State on
County, is based upon this ground.
The citizen pays these taxes in return for
the protection ami security which is g,,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 rs that embraced in the
submitted in this instance, he is
not boun1. However much enterprise NAV
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. 1t is true that in
tellgence AMI knowledge may be more gen.
orally difusei, as consequences Of the in
crease Of railroad facilities. And the same is
true where mills, m,nufac.ories and ma
chinery is introduced, and yet it would
scarcely ba claimed that county has the
inherent right, in its corporate capacity, to
tax the people for any such purpose.
The argument that majority must rule
unter our form ofgovernment, and that each
citizen, as a member of society, must submit
to this rule, as applied to such questions, is
no less danyero1s than fallacious Carried
out, popular viii, when thus exercised, eoull
legaliza the execution of the citizen--cnuld
take As property and give it to B. These
propositions would be regarded as monstrous
Asd yet how is it different when the majority
aste'Vpt to tax the minority, without the au
ehos'tyof legislative sanction, for purpose
entirely foreign to the support Of Govern.
msnt? seeno difference in principle, ana
there Is nons certainly when viewed in refer
ence to thsss nAlaa,ntal rights which ar,
secured to US by the aatural law and whic!
no le sislation can take cSOa US.
Then, again, the counties exerc;se Grant. :
powers and as municipal org,rizarions can
not exercfss any other. If nj exnresslv
grantei vet Unnecessary to carry o., a. a.
conplish the purpose AMI object Q, ths;,
creation, thay may be exercised, but J,
otherwise. (McAlllanvs. Lee county. 8 low
BID If the power clainsl in this inst,nc
has not been granite I. or is not necessary 60
the fulfillnent Of the purposes designed h
the creation of the corporationr the conclu
sion follows that its exercise would be illsr
and nugatory.
But | pass from this part of the casato "a
consideration OF the first AMI third PROPOSE
tons before stated. For If the power car
under the Constitution. be conferred, and
the Legislature has, acting under the Consti
tuition, made the grant, then we need not sto
to view it as one of inherent right. An
here again l may abbreviate this opinion b
confining myself to the question, whethe
the power has been conferred, for if not, tn
argument is at an end. 1t is claimed to b
given S ia of the Code. This view ha
never been held by any member ofttis Court
and with the utmost respect for the learne,
Judge delivering the opinion in the case Q
Dubuque Go. VS.. Dubuque and Pacific Rail
road co.. Green, l-where this propose
ton is maintained, must say, that it is il
the very teeth Of its spirit, as well as tn
notorious and well understood history OF on
legisla ion on this subject.
The language which it is claimed give
this power, is as follows: "rhe Count,
Judge may sub nit to the peopls of his coun
ty, at any regular election, or at a special m
called for that purpose, the quest,,a whethe
money may be borrowed. to all in the cree
ton Of public buildings; whether the count
will construct, or all ia caastruct. any roa
or b .idge ,ciica nay call for an e1trao,,l
nary expenditure whether stock shall
permitted to run at large, or at what time
shall be prohibited and the question of an
other local or police regulation, not inco,
sistent with the laws of this State" II
question is, what "roais" are meant Do,
this section embrace railroads, or only I'll