Iowa voter. [volume] (Knoxville, Iowa) 1867-1874, 1870-02-17
z From the Daily s-g's,er, sth inst.
TOWNSHIP PTAXAITONIN AID
OF RAILRO ADS. .i
Ty.vNrsyS ror r,Ss, n ,rNrn<,
JUDGE Coles Q. 3INIoN.

Supreme Court, upon t!ae law passed
blythe Twelfth, ,Gener Al Assembly,
authorizing towns and cities to tax
themselves in aid OF railroads rum
ming through them. The leading
Opinion, by Chief Justice
Dillon, wae published in the Register,
and several other ps.pers, shortly
after the case was dec ided; but the
minority Opinion was n OF, and VEIN
sert it in today's issue, at the request
OF several members OF the Legisla-
ture and others. It will doubtless
be found Of general Interest as pre-
senting the cpurSe Of t1ecisi0n on the
sAn1O uuestiOn by other Supreme
Courts, as also from its clear statement
the PRINCIPLES upon which it rests.
COLE J., disscnti,g.
I do not concur in the conclusion
reached by the foregoing opinions,
FIRST: ] deny that this Court pos
sesses any power or right to declare
an Act Of the Legislature unconsti-
tutional except it is in conflict with
the u71tten Constitution Of our State.
! think the doctrine, which is very
clearly enunciated in the first two,
and expressly stated in the last of
the foregoing opinions, to wit: that
we have an unwritten Constitution
upon which Courts may plant them
selves to overturn and annul an Act
of the Legislature, is unsound, with
out precedent and dangerous. For
myself, still adhere to and affirm
the oft repeated rule, that State
Legislature may exercise all rightful
legislative power not denied by the
State Constitution; but the Federal
legislature can only exercise such
powers as are granted by the Federal
In determining the
Of an Act Of the State Legis-
lature, the question is, has the power
to make the enactment been express
ly or by necessary implication denied?
And In the case of q Federal enact
ment, has the power to make it been
or by necessary implication
g granted? II denied in the one, or
not granted in the other, the Acts
arSfnvaf tt Fise, ii afiIry j y'1ir0vdIi1i. II
SECOND: tsF that this court has
ever decided that the legislature did
not possess the power TO clothe
Counties or cities with a hority to
for stock, or aid in the con-
struction of railroads or other works
Of internal improvement in or
through them. 1t is not necessary
or proper, Tin view Of the space al
ready occupied by this case) for me
to review the numerous cases. Up
to the case of State v the County Of
Scott, 10 Iowa 166, the legislative
power, and that it had been exer-
cised, was universally affirmed. In
that case, Wright, Ch. J, express
ly declined to examine the question
of Legislative powers, Stockton j,
declared that there had been at no
time any doubtin his mind as to the
power; and Woodward J, very clear
ly affirmed the power. In his opin-
ion in that case Wright Oh. J, ar
ranges the points for discussion in
their natural order, under three dis
tinct divisions:--frst: did the COun-
ties possess the inherent power?
second: had the Legislature clothed
them with the power? and third:
had the legislature any constitutional
to clothe the Counties with
such power?
AS to the first, he holds, in accord
with the current Of authorities, that
do not possess the inherent
power. AS to the second, he shows
by the legislative history, not only
that the Counties have not been
with the power, but that the
legislature had twice, expressly and
by direct action, refused SO to clothe
them-once, by striking from the
report Of the code commissioners
clause conferring the power; and
again by voting down upon recon-
sideration a bill for an act giving 1t.
Having thus decided that the legis-
lature had not clothed the Counties
with the power, it became unneces-
sary las stated by him in his opinion)
to examine the question Of the con-
authority OF the legisla-
ture to confer it, and this question is
not discussed. Thesubsequent
cases without referring to them
have held the same doctrine
and rested the decisions upon the
same groundS. Ifanything has been
said in any Of the opinions In respect
to the constitutional authority Of the
to confer the power, 1t
4 A. Z ~1Snx. 49,. - Al,< Ts.<1xpx, xr,s{