Daily Democrat and news. [volume] (Davenport, Iowa) 1859-1864, 1862-06-25

the Absence Of an expresa grant from
The Gepersl Assembly ofthe State.
This would seem TO be concession |
IN Lm;ns. that it 10, to Gay the least, an
extraordinary power which does not re-
side inherently io, pertain naturally to,
form an incident Of, or fall within the
scope Of, the power usually exercised BY
such corporations.
The subscription in this case was ta.
ken or attempted TO be taken by the
county Of WapelIo in the year 1858.
Its authority tor doing so, if any it had,
is claimed to have been deriyed from
STA Of the Code Of 1851.
Wright, c. j., who prepared the
opinion 10 the above case Of Stokes ct
al, ys. the County Of Scott, showedhow
utterly untounded was and is this as
sumption. And upon this particular
point in that case the court was unit.
Woodward, j., dissenting on other
grounds, used the following language
with reference to the power being de-
rived from sl14 aforesaid
"If the power exists, IT must nave
come other foundation. But th's 10 .
subiect on which change is disastrous.
Il i ono on which We are bound by for
mar decisions. 1t would not be
no.sible for a judicial opinion to ind'-
cate more clearly what would be the
view of the court, if it were untram
meIed by previous decisions and legis-
lative action, and we're free TO express
its own opinions. So tar as regards the
existence of the power, true, under the
law a. it now is, agree with the Chief
Justice, and have 30 agreed from the
time the first case was presented"
In the case just referred to, the then
Chief Justice showed that such con.
struction was not only Unauthorized by
the spirit and the language Of the sec
ton in question, but proved Affirmative
~, from the journals OF the General AS
sembly, that the Legislature absolutely
intended, and did expressly withhold
from the counties of the State the pow.
er to subscribe to works OF internal i'm
provement.
He demonstrated it 10 this way: The
Code commissioners in making their re
port to the Legislature, presented that
part Of 5 ia that bears upon this point
10 the following form:
"The County Judge may submit to
the people, at any regular election. =.
-. the question whether money may
be borrowed to aid in the erection OF
public buildings, whether the county
will construct, or aid to construct, any
road or bridge which may call tor an
extraordinary expenditure, sohether the
county soiU subscribe to any aoOrk Of en-
ternol Improvement, &C."
The last clause, after days of discus
sion, was stricken out, as an unwise and
inexped,ent provision. At the mex,
succeeding session Of the Legislature q
second attempt by the f.icuds of inter
nal improvement, was made to have the
power conferred upon the counties, but
without success. After these two affirm
alive acts on the part of the Genera
Assembly to withhold the power, there
is no ground left upon which to raise 9
doubt in regard to the real meaning and
object Of the above section.
That no improper or extended con
, struction should be given to the wor(
road, the Legislature took the precan
! ton, in s 26 OF the Code, to define th'
sense 10 which it was to be used, limit
, ing its meaning to that Of an ordinar.
G "couuty road" common road" o
6 estate road" Now we have an abund
/. ance Of judicial authority for saying tba
Q a railroad is neither of these, for it ha
g been held, both in England and in thi
h country. upon principle as well as upc
i authority, that the construction Of a raj
j, way over lands already taken for pub
! lie highway, is an additional servitud
J.. upon the land, and entities the owner
additional compensation for right Q
/. way; and that, upon this ground, tn
3 use of land for a railroad is vastly NOR
onerous aud detrimental to the owne
!. of the tee. 20 com. $50; 4 Cusn. 63
< 9 Indiana 433-467; Dona. 2S9.
0 The great marvel is, that this frsg
ment Of legislative history should hav
!. escaped the notice of our predecessor
d who first gave a construction to this SET
e ton of the Code. Ofcoursc, VIC are nc
i at liberty to suppose for an instant, thu
}, with knowledge Of these facts, the
r could have adopted a construction so u
= terly at variance with the known an
declared intention OF the Legislature
= ct that it is so, there remains no, til
r sLade Of doubt.
We inquire, then, whether the war
e of authority Oh the part Of the county {
5. Wapello to make this subscription, hs
J. been cured or legalized in any wav b
10 subsequent legislation. On the 25tL
e January, 1855, the Legislature passe
# two acts, one to the fleet that city 40
!. county railroad bonds should not dra,
= greater interest than ten per cent, br
that they might be sold by the compan
. at such discount as may be deemed e,
e peditnt. The other limiting the tim
} within which said bonds should be i
d sued, and requiring the proceeds there,
to be expended within the county iss,
q ing them. It cannot be said that eithe
y Of these acts confer the power in que
Q ton, nor do they, upon their face, pu
t port to legaize the power where it hi
h been exercised in the absence Of an
is such grant. He would be bold iuri
y who could affirm that they were an,
o thing more than a regulation Of graz
!. or power already supposed to be subsis
/ ing.
; Upon what ground, then, can th
v | cnnnfv Of Wanello he comnelled 70 iasu