# Stewart v. Bd. of Super. of Polk County > Supreme Court of Iowa · October 8, 1870 · 30 Iowa 9 URL: https://www.frixlaw.com/law-library/cases/3432041 ## Case - **Full name:** Stewart v. the Board of Supervisors of Polk County. - **Court:** Supreme Court of Iowa - **Decided:** October 8, 1870 - **Citations:** 30 Iowa 9 - **Precedential status:** Published - **Opinion:** Dissent by Beck - **Judges:** Miller, Beck - **Cited by:** 77 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3432041 ## How later opinions describe it (automated extraction) - stating the court will “declare a law unconstitutional only when it is clearly, palpably and plainly inconsistent with the provisions of that instrument” (quoting Morrison v. Springer, 15 Iowa 304 (1863)) ## Opinion text *23 Beck, J. (dissenting) This court has ruled in at least eight cases that the people cannot be taxed to raise money - for the payment of county and city railroad bonds. This is the effect of, the course of decisions upon the questions growing out of the county and city railroad bond cases. It is not pretended, in the opinion of the majority of this court just announced, that there is any distinction in principle between those cases and this. But to avoid the effect of this conceded and indisputable fact, it is said that the decisions in those cases were not based upon the want of constitutional power in the legislature to authorize the levy of such a tax, but upon the alleged omission of the legislature to bestow upon the cities and counties the power so to do. Here is a most grave error of fact. This court has decided, that, under the constitution, the power in question is not possessed hy the legislature, and cannot be conferred upon the counties and cities of the State. A brief reference to the adjudged cases will vindicate the positive assertion I make. I will notice in the first place The State ex rel. v. The County of Wapello, 13 Iowa, 389 , the leading case upon the questions involved in the railroad bonds litigation. Upon pages 393, 394, Lowe, J., gives a statement of the facts of the case, which are simple and few, being the vote of the people to subscribe stock to the railroad company, to be paid in bonds of the county; the subscription of the county judge, for the county, to the capital stock of the incorporation; the issuing and delivery to the company of a part of the bonds provided for by the vote; the demand of the residue by the company, and the refusal by the county officers to issue them. Thereupon an information, upon the relation of the company, was filed, asking for a writ of mandamus to compel the county to issue bonds in payment of the balance of the stock subscribed. The opinion then proceeds, in the statement of the case, in the following words: “This informar *24 tion was dismissed by tbe court, upon demurrer of tbe defendant, alleging, in substance, as the grounds thereof, .that the said railroad subscription on the part of the county and its agents was not only without authority of law, but m violation of the constitution of the State.” It thus appears that the very ground of objection made by the defendant was that’ the subscription, and, of course, all proceedings to carry it out, were in violation of the constitution of the State. On pages 394, 395, Justice Lowe, in stating the questions presented for determination, uses this language: “ The question, as presented by the record in this case, assumes a duplex form, and is to be considered under two aspects. First, whether, at the time this subscription was made, the legislature had conferred upon the counties of the State the power of subscribing to the capital stock of railway companies; if so, then, secondly, whether it was competent for the legislature to pass a valid act giving such power.” Five pages of the opinion are devoted to the inquiry whether the power had been conferred upon the counties, and the conclusion arrived at that the legislature had made no attempt so to do. The constitutional question is examined in tmenty-f/oe pages, and the power, either in the legislature or in the counties, is utterly denied upon constitutional grounds. This question Was presented by the pleadings; it was the main question in the case; the first question was the subordinate one. It is claimed that as the determination of the first question authorized the final conclusion arrived at, the affirmance of the judgment of the court below, all that is said upon the constitutional question is mere diefrnn. But the question is in the case, and it is determined. The fact that it is second in the order of consideration cannot make the determination thereon dietum. Its deteimination, by adopting the view of my brothers, rendered the decision of the other question unnee *25 essary, and with equal fairness all that is said upon the want of legislative grant of power to the county may be claimed to be dictum. I am astonished that such views should be entertained and expressed by my learned brothers. The simple statement I have made of the facts of the case, and the grounds of the decision, will disclose the grave and mischievous error into which they have fallen. The State v. The County of Wapello is followed and approved in Myers v. The County of Johnson, 14 Iowa, 47 . The statement of the case is brief as well as the opinion. The county was sued upon coupons of bonds issued to a railroad company; defense, fraud in issuing the bonds, and the absence of power and authority in the county to issue them for the purpose intended. A replication, pleading a former adjudication, was held bad upon demurrer The ruling upon the demurrer is sustained, and the decision in a sentence re-affirms the rule in The State v. The County of Wapello, as to the want of power in the counties to issue such bonds. The next case decided by this court is McMillan et al. v. Boyles et al., 14 Iowa, 107 . From the statement in the opinion it appears that plaintiffs insisted that the bonds were void, because “they are not only unauthorized by the laws and the constitution of the State, but in contravention of both.” A demurrer to the petition was sustained. Following The State v. Wapello Co., and upon the principles therein announced, the judgment of the court below was reversed. Rock et al. v. Wallace, 14 Iowa, 593 , follows next in order. The opinion is brief, and holds the county bonds in question invalid on the authority of The State v. The County of Wapello. Smith v. Henry County, 15 Iowa, 385 , was an action upon coupons of certain county bonds issued to a railroad, in payment of a county subscription. A demurrer to the petition was sustained. Upon appeal to this court, it *26 appears from the opinion that the questions involved in The State v. The County of Wapello were re-argued, counsel conceding that decision to be against the power of the county to issue the bonds. The arguments, adverse to the ruling of the court in that case, are declared to have been most ably and carefully prepared. But the court adhered to the prior decision in the cases above referred to, in the following language : “The want of.power under our constitution and laws is so clear, and the argument, against the right to exercise it is so well sustained and conclusive, as we have attempted to show in the eases above cited (the same above quoted), that we cannot longer regard it as- with us open for controversy. In this State it must be considered settled.” Ten Eyck v. The Mayor of Keokuk, 15 Iowa, 486 , without a statement of the facts of the case further than to show that the same questions were presented to the court that- had been determined in the prior cases, follows their rulings. Chamberlain v. The City of Burlington, 19 Iowa, 395 , was an action-to restrain the city authorities from.levying and collecting taxes for the purpose of paying the interest upon certain bonds issued by the city upon its subscription to the capital stock of a railroad. The statement of the case,- as contained in the report, is lengthy, and shows that the bonds are claimed, in plaintiff’s petition, to be void, because of want, of authority of the city under its ordinances and the laws of the State to issue them, and because they were issued for an illegal 'purpose. A demurrer to the petition was overruled by the district court, and, upon the-questions presented by the decision, the case was submitted to the court. The ruling of the district court was affirmed, Cole, J., delivering the opinion. The questions discussed relate to the power of the city under its charter and. the laws of- the State to levy and collect taxes for the-payment of the bonds issued by the city. This,, of *27 course, involved their legality. It may be admitted that the constitutional question was not passed upon in the opinion. But the case is valuable for my present purpose, as it clearly shows that the court, as then constituted, and especially the learned justice delivering the opinion, who now concurs with the majority in this case, regarded the constitutional question as presented in and determined by the cases I have above noticed. The opinion uses this language: “ The following cases determined by this court hold that counties have no eonsütwtíonal or legislative authority to bind themselves by the issuance of bonds for railroad stock.” The cases cited are those above referred to. McClure v. Owen, 26 Iowa, 144 , is the last case determined by this court in which the question as to the constitutional power of counties to collect taxes for the payment of railroad bonds was directly presented for our decision. It was a proceeding to enforce the collection of taxes levied for that purpose. The relief was asked upon the grounds of irregularity in the actions of the officers issuing the bonds, and the want of power in the counties to issue such obligations. A few quotations from the opinion wiil most clearly show the points decided, the authority relied iipon, and the views of the court, as then constituted, upon the constitutional question. My learned brother, the present chief justice, concurred. Upon page 248 will be found the following language: “We are asked by appellant’s counsel to change the later ruling of this court, and abandon the principles of the adjudications so frequently heretofore announced in the cases that have arisen upon these county and city railroad bonds. This we are asked to do, not because the rulings and the principles of the construction of our constitution upon which they are based are unsound, but because the supreme corut of the United States, which is termed, in the language of appellant’s counsel, the final *28 arbiter of these questions, has disregarded the decisions of this court, and, in cases before it, has overruled them.” The question decided in The State v. The County of Wapello is stated in the following language: “ It is held by a unanimous court, in a carefully prepared and well-considered opinion, after elaborate and profound argument by counsel among the ablest in the State, that the constitution confers nb power upon the legislature to authorize counties and cities to become stockholders in railroad corporations, and to borrow money upon their bonds for the purpose of payment upon such stock, and that under the constitution they are forbidden so to do.” The cases above noticed are cited as following and reaffirming The State v. The County of Wapello. The opinion’ then announces that “the principles of these adjudications, independent of their authority, have the unqualified approval of this court as now constituted. We see no reason to depart from these rulings.” In Hanson v. Vernon, 27 Iowa, 28 , the constitutional question was again before this court, and prior adjudications were again examined and re-affirmed. Dillon, C. J., in his able opinion, uses the following language: “ If any thing can be said to be settled in this State, it is, that under the constitution there is no legislative power to endow public or municipal corporations with the faculty of subscribing to the stock of railroad companies, and to levy'a tax on the inhabitants to pay therefor. Every body so understands it. I have so understood it ever since I have been on the bench, and have never felt myself at liberty to regard it as an open question. Not one of the oov/nsel concerned in this case has eroer asTced the cou/rt to overturn that decision, cmd to hold such subscription and tax to be constiirwtionalP The learned chief justice, still further on in his opinion, affirms that it was decided in The State v. The County of Wapello, “ that the legislature could not, under any circumstances, pass an act which *29 will make it lawful for a county or city in its corporate capacity to subscribe stock in a railroad company.” Tbe opinion of Wright, J., in the same case, more carefully notices tbe course of adjudication of this court, and tbe points ruled in tbe several cases, and arrives át tbe same conclusion. These opinions expressed tbe view of tbe majority of tbe court. Cole, J., dissenting. In order, if possible, to determine if in fact any reasons exist for tbe position of my-brothers, that tbe constitutional question was not in tbe cases above cited, and that, therefore, all tbe decisions therein are mere dicta, I have examined tbe record of so many thereof as tbe clerk has been able to find in bis office. Tbe records in Smith v. Henry County and in Rock v. Wallace I have not seen. In my opinion tbe question is fairly presented in all those I have examined. All of tbe records contain objections to tbe bonds, against tbe payment of which relief is claimed, founded upon their invalidity and want of binding force. In my opinion no one of tbe records withdraws tbe constitutional question from tbe consideration of tbe court, but, on tbe contrary, tbe court was required, in view of tbe want of constitutional authority in the legislature, as presented in tbe records, to clothe counties and cities with tbe power to issue bonds, to bold them invalid upon that ground. In McMillan v. Boyle, tbe petition of plaintiff, upon which tbe relief was granted, presents tbe constitutional question and no other. An injunction is asked to restrain tbe collection of taxes to pay tbe bonds and to declare them void upon 1jhe ground, and no other, that they were unauthorized by and in conflict with tbe constitution of tbe State. In Ten Eycke v. The City of Keokuk tbe petition of plaintiff asks that the defendant and its officers be enjoined and restrained from tbe collection of taxes leviedj or to be levied, for tbe payment of tbe interest and prin *30 cipal of the bonds of tbe city issued upon its subscription to a certain railroad company. It is expressly admitted in the petition, tbat, by an act of tbe legislature, an attempt was made to confer tbe power to issue the bonds upon tbe city, and that another legislative act was passed with tbe express purpose of “curing, establishing and making legal and binding ” tbe bonds in question. See Acts of 5th General Assembly, (1856) pp. 118, 119. These enactments are expressly referred to. Tbe only objection made to tbe bonds are those of a constitutional character, and it is not pretended tbat tbe bonds are invalid for want of power conferred by legislative enactment. Tbe simple point made is, tbat they are unauthorized by, and in conflict with, tbe constitution. I repeat, tbat in all tbe cases tbat I have cited, except Chamberlain v. The City of Burlington , so far as I am able to discover upon examination of tbe records thereof (with tbe exception above mentioned), and tbe reported decisions therein, tbe constitutional question is fairly and expressly presented; and tbat question and no other is presented in tbe two last mentioned. Probably no litigation tbat has arisen in tbe State has been conducted with more ability and vigilance than that growing out of county and city railroad bonds. This is especially true of this litigation in the United States courts. No cases have been more critically examined than those of this court, declaring void paper of this kind. The State v. The County of Wapello has been subjected to tbe closest scrutiny by many able counsel. It was overruled and disregarded by the United States supreme court in Gelpcke v. Dubuque, 1 Wallace, 176. Tbe counsel in tbat case, supporting tbe validity of these bonds, as it appears from their argument, printed with tbe report of tbe court’s decision, do not question tbe fact tbat tbe constitutional question is properly presented and decided in The State v. The County of Wapello. There is no claim by them tbat the decision therein is dictum. I have *31 never heard, that any attorney for the bondholders has, in any case, claimed the like. The United States supreme court, in Gelpcke v. Dubuque, and in all other cases where the question has been before it, concedes that this court, in The State v. The County of Wapello, and other cases, has decided against the constitutionality of the bonds in litigation. Ve can find nowhere in all of this protracted litigation, from courts or counsel, the intimation of an opinion that.these decisions are ddcta. The foregoing -'examination of adjudged ’ cases in this court justifies the statement I have made, that this court has repeatedly denied the constitutional - power of the legislature to authorize taxation to aid in the construction of railroads owned .by private corporations. I have shown that all the judges making the decisions so understand it; the courts in the land so understand it; the bar so understand it; the people so understand it; and, until the dissenting opinion in Hanson v. Vernon , a doubt upon the subject was never expressed. A striking instance of the unanimity with which all minds admitted the fact may be mentioned. The question incidentally arose in a case in argument before us on the day the opinion of the majority' was announced. The counsel, among the ablest at' the bar, conducting the argument on both sides, admitted the fact that the decisions of this court upon the question were as I have above stated. I may well express my astonishment that my learned brothers should have fallen into so serious an error. It may probably be explained by the fact that the case was not argued before us, and the opinion was prepared without the .aid of the discussion of counsel, which all courts so highly prize, especially when great questions are presented for consideration, and authorities are relied upon. The appellant’s counsel, though among the ablest at the bar, favored us with neither printed, written or oral argument, and the brief discussion on the part of the appellee was, as I remember, confined exclu *32 sively to the impolicy of declaring the law unconstitutional, in view of the great advantages of railroads to the business of the State, and the development of its resources, and the great want under which the people labor for facilities of transportation. The necessary haste in the preparation of the opinion, resulting from the accumulation of the business of the court, may have had something to do in the failure of my brothers to perceive the points decided in the cases heretofore in this court, involving the constitutionality of taxation for the purpose of building railroads. The opinion of the majority of this court overrules Hanson v. Vernon, supra, which held an act of the legislature of 1868, in no essential particular affecting its validity different from the one in question, unconstitutional and void. Both these acts make it lawful for townships, incorporated towns or cities to aid in the construction of railroads, by levying a tax not to exceed five per centum upon the assessed value of the property thereof, to be paid to the corporation building the road. Nothing in the way of stock, nor any interest in the road, is to be received in return for the money so paid the corporation, but it is to be a free gift on the part of the townships or towns voting the tax. The acts provide for the method of calling into exercise the power conferred, and the manner of collecting the tax, and the payment of the money to the corporation. Their provisions are not essentially different, and as it cannot be pretended that these matters in the least affect the question of power on the part of the legislature to authorize the taxation, it is needless to notice them. In two provisions the acts differ. The act of 1870 provides that the money may be raised by taxation “to aid in the construction of any projected railroad in this State.” The act of 1868 provides for the taxation in aid of any railway located in, or which may be contiguous to, the township voting the tax. The act of 1870 provides that all rail *33 roads constructed in this State which shall accept the township aid, “ shall be subject to the control of the general assembly in regard to the management of the same and the charges for the transportation of freight and passengers thereon.” The prior act contains no such provision. In my opinion, there is no such difference in these acts as would render one unconstitutional and void and the other valid. As to the question of power in the legislature, to authorize taxation as provided for by either, it is the same in both cases. If there be any difference, the first is the less objectionable. It provides for taxation to build roads in the township or town, or those contiguous thereto; the second authorizes taxation for any road wherever it may be located, within the State. Under it a tax may be levied in the city of Keokuk, to build a road in Alamakee county. The later act provides that the roads built with the aid of the tax shall be subject to the control of the State as to their management and rates of transportation. The. first act contains no such provision. Will my brothers maintain that the legislature has not such power over all railways ? Are they prepared to hold that this provision at all increases the legislative authority over railway corporations ? These are grave questions, and I am glad that in this case they have not been touched. The majority in their opinion do not pretend that the acts are essentially different upon points which affect the constitutionality of either. In my opinion they are each equally invalid. All that is said in the majority opinion in regard to their difference is, that there are important modifications in the last upon the provisions of the first. The subject is dropped with that single remark. It cannot be claimed, therefore, that the law is sustained because these modifications cured it of any invalidity by reason of constitutional objections. The law of 1868, as I have before remarked, was declared unconstitutional in Hanson v. Vernon . In the *34 outset of the opinion of the majority, this fact is stated, and is the introduction of the following observation: “ If this case but involved a second time the validity or the act of 1868, annulled by this court in the case referred to, we might regard the question as to that act settled by that case, but as the general assembly has re-asserted its authority, and re-enacted the law with important- modifications, we have treated the question as still an open one, and have given it as full and careful examination and consideration as we are capable of.” Here we have stated the reason for overruling Hanson v. Vernon . As we have seen, the difference in the provisions of the respective acts has no weight with the majority in the conclusion. The ground, as given in the above extract for regarding the question involved as open, is, that the legislature “ re-asserted its authority cmd re-enacted the la/wV I have never heard it claimed that the legislature, by the re-enactment of an unconstitutional law, could make it valid, or that such action on the part of that branch of the government, the re-assertion of its authority, should influence courts in the determination of constitutional questions, and require them to regard as open questions of that character, which are settled by a long course of adjudications. It is a virtual surrender of the most important power and most sacred character of the courts — the power to annul all unconstitutional laws —the character that places them above every influence, public and private. Legislative action or opinions cannot be made, with safety to our form of government, a test of the constitutionality of laws, nor should they influence courts to disturb well-settled precedents and rules of constitutional construction. The right of this court to declare void, for unconstitutionality, a law of the legislature is conceded by the majority, and the rule is stated in language of no greater force than is usually employed for that purpose. I understand that the power must not be exercised except in clear *35 cases, where there cannot be a reasonable doubt, in the judicial mind, of the unconstitutionality of the law in question. Now, as we have seen, the law under consideration in no essential respect differs from the act of 1868, which was declared unconstitutional; and this court has settled, by a long course of decisions, that the people cannot be taxed to aid in building railroads, even when the counties and cities in which the tax is levied receive, in return, stock in the companies. How can it be said that upon this subject there can be a doubt in the judicial mind, when it is not an open question, but determined by a course of decisions that in all courts ought to preclude debate thereon, and forever put it at rest. If we who occupy this bench do not regard the decisions of this court, who will, and where will be the end ? Will not those who succeed us disregard our determinations as we do those of our predecessors ? If the judicial mind cannot rest upon judicial determinations of all questions, how may they be settled ? There can be no greater reproach to the administration of justice by the courts than the well-founded charge of oscillating decisions. This court, we know too well, has suffered in that way on account of the conflicting decisions upon the validity of county and city railroad bonds, though the later decisions had the almost unanimous approval of the legal mind of the State, and are most emphatically applauded and concurred in by the majority opinion, though disputing the reasoning upon which they are based. St