Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1878-05-11

The Objection now before us is identicalIy the
same which was h"tore the court In Cass county
VS.. johnson. supra, and this being 50, We have
the authority OF the Supreme court OF the United
States IN the case OF Boyd vs.. State OF Alabama,
~ D. >, ti,i IN saying that we are not pre-
cilait'i iron. "A iull consideration of the subject.
1he court in that case held that ''courts sell
dom undertake III any cast 10 pass upon the VA
lidliy OF legislation when the question Is not
made between the parties. Their hnbiI is To
meet questions oil that kind when they are raised,
but not t. anticipate them. Until then they viii
construe The acts presented for consideration DE-
lne their meaning and enforce their provisions,
The Tact that ACTS in this way hay. often been
before the court IL never "a reason for not suisse
quentiy considering their validity when that
other points, do not operate as an estupp,I
against Tie parties In new c2s,s; nor conclude
the court, upon the constitutIonality of acts be
cause that point might have been raised and de-
ter!hintd III the first instance"
Beside this. in view of the fact that at the Oc-
toDer term, ls15. an op Mon was delivered by
the supreme court in case OF Harshnuu vs.. Bates
county, 81 U. >, 5f9. declaring the act of March
70, 1868. unconstitutional and yoII, and stamp
lux Tie bonds Issued under it rs valueless and IN
view oi the Tact that this was accepted AS the law
OF me ianu Tor two years before ii was oyerruled
anu recalled IN the Case Of Cass county vs.. john
BON curing which time ample opportunity was
anorueu u the mere scheIner ami speculutOr to
procure the bonds. thus declared 10 be worth
iess' LOT y song, We are not inclined TO lend an
attentive ear 10 the Invocatlvns now made that
the act oi 1865 is u sealed book SO lar rs the deter
ihinati0n OF It's Validity by this court Is Concern
ed. especially in tie face Of tl- concession th 1t it
has never before been determined IN any case
Which has been before Us.
IT IS also urg' d that the bonds have been issued,
placed upon the market and have passed into the
hAhos Of innocent purchasers and should there
lore be upheld.
While bonds of the character involved in this
SUIT have ieen put on the footing Of commercial
paper, We apprehent no well-considcrcd case
can be found which asserts that II bond issued
under II Law absolutely null and void viii be en-
forced by the Courts IN the hands of anybody.
A purchaser OF such bond takes II charged
with notice OF u total want ot power TO issue II;
and If i,suei under an unconstitutional law. il
Is void into w,osesoevec hand it may come.
lCooiy's Con, Lin, lis and 2l5i DIii; Nun
S Mnks Zee; ioS. 7. az -, County oi Dallas vs.
Whiis loss to the holder OF u bond issued under
= void law would necessarily result, it should
not he forgotten that to enforce the payment of
such bonds. by striking down the organic law.
would innict u severe blow on good government
and entail n greater loss on the community at
large than mere pecunIary sacrifice.
While ii is The duty OF courts TO employ all the
appliances and ngencies provided for that purpose
u compel the ment oil ali obligations which
are recognized rs legal, il Is equally their duty
to prevent the Use OF any ofthem in the enforce
mtnt OF any obligation which /, illegal and VOID.
Whiie 1t would be unjust not to give force and
ELECT to II valid contract. II would be equally
unjust to give effect To a contract which the law
pronounces vOid, either because not allowed or
forbidden TO Ice made.
The only other alleged error rs appears from
the record, Is The actIOn vi the court below IN
everything the demurrer To the ilrst count OF the
l u IA sim IL SultlJtIt VI IN Z
murrer that the acts rcCitrti III the bond did not
confer on the county court the authority to Issue
1t.
We think this position not well taken, and
without specially Considering the objections re-
ferred 10 IN the brief ot counsel ,ireIn II sufficient
To say that under the act of 1853, Incorporating
The Lexington and st. Louis railroad company,
anu an act supplemental thereto, approved
JANUARY l. lo,U, aud AN act entIiied AN act To
authorize counties, cities and towns TO iuni
their re-pe tive indebtedness approved
March -, 1865, that the County court mad luli
authority to issue the bond III question, and that
the demurrer was rightiully overrul.d
Perc.ivlng no error We affirm tile judgment
Tor plaintiff on the first count Of Ill.
petition, and also affirm the judgment rendered
tor defendant on the second count, in which
sherwood. Z. j.. and Henry. j.. concur
Judges Naplnn and Hougt dissent from the views
here expressed Us TO The consiitutiOnaiiIy o. the
act OF March y, 1865. +. II. NORTON, j.
State -! Missouri, IS. /. Henry W. Ewing,
clerk of tte supreme court Of the state ator"sari.
certify that the foregoing Is u iull. true AMI COR
rect copy OF the opinion OF said Court IN the
therein entitled cause. died III my oIlice on the
6tn day OF May lS1s.
Witness my hand and the seal of our said
supreme court hereunto afi xed at office
in the cIty OF Jefferson, this 9TH day OF
lsEAL.l May, 1873.
HENRY W. EWING, Clerk.
BY CHAs. Il, GCESTHER. D.. Z.