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, fsse.

DECEMBER TERM, 1850.
Young saOkes.et. al J
Scott County, opp D,:s:|:s ,.rgs., os.,s ss the Scot
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 ofany company for the purpose in
this vote contemplated. And this position
proceed to examine.
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
cs. Dubuque & Pacific Railroad Company, 4
Green, l. in which majority Of the Court,
(kinncy, j, dissenting) affirmed the power
ofthe Legislature to authorize such SUBJ
scr'ption. and that it had been given by IS
ia of the Code.
In subsequent case in the same Vol. 1.-THE
State cs Bisself, 32s.) Hall, j., in speaking
ofthis point, says it"was not argued, and
the same question having been decided at the
Dec. Term, 1853, ofthis Court, (referring to
the case supra) is not examined. This de-
cision is not intended to sanction or dcny the
legal validity Of that decision, but to leave
the question where that has left it,"
The question was first presented to the
Court as now constituted in Mcmillan, ct. al.
cs. Lee County, and the County Judge there
OF, Iowa 81, h,lt was not then decided, as
the case was disposed of.upon othor and diff.
ferent grounds.
1t was first decided by us in Clapp o.. Ce-
dar county, 5 Iowa, Is. In that case, the
bonds had been issued and passed into the
hands of an 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 decide this question now for the first
time, for this State. we should entertain heavy
doubts of the existcnce Of the power on any
ground and if the aAempt were made To
place it upon IS. ia ofthASCoie, unier the
power to aid in constructing fssds, we should
think very light Of the argnnsut. If the
power exists, it may have some otN~r foun.
dation. But this is a subjsct ON which
change is disastrous" &c "
In Ring ps. Johnson Co.,-6 Iowa. as5A
the action was upon the coupons which had
passed into the hands of an innocent holder.
and the question now under consideration
was not argned-A Tho case in 5 Iowa, Is is
referred to, however very brieHy-it being
stated that sthe Court has no change Of
view.
! In the case Of McMiilan, etsal. vs Boyles.
Co. Judge, Iowa, 304 and 39l--the bonds
were issued, and taxes levied ta 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, legalized the
issuing of said bonds, and declared said vote
to be regular, valil AMI legal The power of
the county to take stock, is recognized By
reference to the cases previously adjuiicated
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, J 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 no
power to levy and collect a tax for this ,r-
pose. The question was regarded as settled
by the previous cases, and was disposed Of
by simply referring to them
In the case heforr us, the question IS made
for 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 no,
be collected, and that the vote afforded no
protection to revenue officers in levying upon
property to make the same. Ny dissent is
expressed in Clapp VS.. Cedar county, Ring
|cs johnson county. Mcmillan VS.. Boyles, and
thou IN not expressed in Garnes vs. Robb, il
was because the previous decisions were sta
ted without argument, and they shovel my
position so clearly, that formal dissent
SCENE unnecessary. In McMillanvs. Boyle;
County Judge, concurred in the opinion
that the Legislature hal the power to legal
ize the irregularity, but denied the powe,
ofthe couaty, th,a,h expressly authorized
to subscribe the stock,
i These references give US the history o
this question in this State, to the presen
late. As the msiority Of the Court hav,
concluded in this cass-whera the question
is made before the bonds have been Issued
that the injunction prayed for should hav,