Summary
concluding that the purpose of the unenumerated rights clause is to "bring . . . unenumerated rights retained by the people, founded equally . . . upon natural justice and common reason . . . within the censorship of courts of justice . . . when . . . [the rights are] assailed"
Summary of this case from Atwood v. VilsackOpinion
June 16, 1862.
1. RAILROAD SUBSCRIPTION BY COUNTIES. The Legislature of the State of Iowa has no power to authorize counties to become, as corporations, stockholders in Railroad Companies; and has never attempted, by the provisions of § 114 of the Code of 1851, or otherwise, to confer such power; overruling Dubuque County v. The Dubuque and Pacific Railroad Company, 4 G. Greene, 1; and approving Stokes v. The County of Scott, 10 Iowa, 166.
2. SAME: STATUTES CONSTRUED. "An act regulating interest on City and County bonds," and "An act regulating the issue of county and corporate bonds," both of which were enacted on the 25th day of January, 1855, regulated the exercise of a power which it was supposed had been already granted; but neither of these can be construed as an original grant of power.
3. RAILROAD CORPORATION. A railroad corporation in this State is a voluntary association, self-organized under a general incorporation act, and is invested with the privileges and franchises which belong to other joint stock companies.
4. BILL OF RIGHTS. The bill of rights, in the Constitution of the State of Iowa, will not be so construed as to exclude, impair or deny any rights not enumerated therein, and retained by the people.
MANDAMUS to compel the issuing of bonds by Wapello County, in payment for stock subscribed in the Burlington and Missouri River Railroad Company.
The facts are stated as the opinion of the court.
D. Rorer for the appellant.
The subscription was made under the old Constitution and under the Code of 1851. The county is a corporate body, and the county judge and court are the agent of such corporate body. The acts of the judge and court judicially performed, are not only the acts of an authorized agent of the county, with power to contract, but are res adjudicata and binding, when made on a subject matter prima facie within the jurisdiction of said court; therefore, a construction of the road making power conferred by the statute, as applying to railroads, is, until reversed, binding on the county; and especially so when acted on by other parties. Code of 1851, §§ 93, 103, 106, 114-116. For these enactments, there is ample authority in the Constitution. Art. 8, § 2.
The county judge was authorized to cause a vote to be taken as to the appropriation of money to construct roads and to take stock in such roads. The term roads here used, is not limited by restraining language, as county roads, plank roads, railroads, township roads, but is used in the broadest sense, and includes railroads; unless a railroad is not a road. A judicial construction has been given to the statute by the agent of the county, and it is res adjudicata. Hopkins v. Lee, 6 Wheat., 109; Bank of the United States v. Beverly, 1 How., 134.
The continuous and contemporaneous decisions of this court, affirming the power, and the acts of the General Assembly of 1854-5 (see pp. 192 and 219); emanating from the two highest departments of the government, from powers representing the counties as parts of the whole State; under which this contract, and these investments were made, do estop the county, as a person in law, from denying the binding force of the contract. Dubuque County v. Dubuque and Pacific Railroad Company, 4 G. Greene, 1; The State of Iowa v. Bissell, Id., 328; Clapp v. Cedar County, 3 Iowa, 15; Ring v. Johnson County, 6 Iowa, 265; McMillan v. Boyles, County Judge, Id., 304; Stack v. Maysville and Lexington Railroad Company, 13 B. Monr., 1; Cincinnati and Zanesville Railroad Company v. County of Clinton, 10 Ohio, 77; Justices of Clark County v. Turnpike Co., 11 B. Monr., 143, 156; Aspinwall et al. v. The Commissioners of Davies County, 22 How., 365; The Commissioners of Knox County v. Aspinwall et al., 21 How., 539; Graham et al. v. Maysville et al., 6 Am. Law Reg., 92; McCoy v. Washington County, 7 Am. Law Reg., 193; Mygatt v. The City of Green Bay, 8 Am. Law. Reg., 271; Seeley v. The City of Racine, 8 Am. Law Reg., 603; Sharpless v. The Mayor of Philadelphia, 21 Penn. S. R., 147.
The construction of a railroad is as much a matter of public interest, and is as fully within the statute conferring the power to make roads as is the construction of any road. It matters not that the work is performed by a private corporation or person, and with private capital. The road is a great public highway, and the company constructing or running it, are the mere agents of the public, for the management and care of the easement, which is in the public. Beekman v. The Saratoga and Schoharie Railroad Company, 3 Paige Ch., 45; Louisville, Cincinnati and Charlestown Railroad Company v. Chappell, 1 Rice, 383, 400; 8 Am. Law Reg., 129; Bonaparte v. The Camden and Amboy Railroad Company. 1 Baldwin C. C. R., 205.
James Grant, of counsel in several causes pending in the Supreme Court for parties holding the bonds of counties issued in payment for stock taken in Railroad Companies, submitted an elaborate argument in support of the validity of such bonds, which was considered by the court in the determination of this cause. He reviewed: —
I. The history of the legislation and judicial opinions of the Supreme Court of Iowa on this question; citing Code of 1851, §§ 114, 670. Acts of 1854-5, pp. 192, 219. Dubuque County v. The Dubuque and Pacific Railroad Company, 4 G. Greene, 1; The State v, Bissell, Id., 328'; Clapp v. Cedar County, 3 Iowa, 15; Ring v. Johnson County, 6 Id., 265; McMillan v. Boyles, County Judge, 6 Id., 304; Gaines v. Robb, 8 Iowa, 199; Stokes v. Scott County, 10 Id., 166; Whittaker v. Johnson County, Id., 161.
II. The question as determined in other judicial tribunals, 2 Kent, 310, and the cases there cited, Raleigh Gastin Railroad Company v. Davis, 2 Dev. Batt., 451; Walker's Am. L., 76, The People, ex rel. Wood, v. Draper, 15 N. Y., 543; Goddin v. Crump, 8 Leigh, 120; Harrison Justices v. Holland, 3 Grat., 247; Bridgport v. The Housatonic Railroad Company, 15 Conn., 475; Nichols et al. v. The Mayor of Nasvhille, 9 Humph., 252; Louisville and Nashville Railroad Company v. Davison, 1 Sneed, 637; Cotton v. The Commissioners of Lion, 6 Fia., 610; Talbot v. Dent, 9 B. Monr., 526; Stack v. Maysville and Lexington Railroad Company, 13 B. Monr., 1; Maddox v. Graham Knox, 2 Metc., 56; Shaw v. Dennis, 5 Gilm., 405; Ryder v. Alton C. R. R., 13 Ill., 576; Lawyer v. The City of Alton, 3 Scam., 130; Mason v. Hart et al., 4 Scam., 134; Prettyman v. The Supervisors of Tazewell County, 19 Ill., 406; Johnson v. Stark County, 24 Ill., 75; Thomas v. Leland, 24 Wend., 65; The People v. The Mayor of Brooklyn, 4 Com., 419; Grant v. Couster, 24 Barb., 232; Clark v. The City of Rochester, 24 Barb., 446; Bank of Rome v. The Village of Rome, 18 N. Y., 32; Commonwealth, ex rel. Dysart, v. McWilliams, 11 Pa. S. R., 61; Sharpless v. The Mayor of Philadelphia, 21 Id., 147; Moore v. The City of Reading, Id., 188; Commonwealth v. The Commissioners of Allegheny, 32 Id.; Griffith v. Crawford, 20 Ohio, 609; Cincinnati, Wilmington and Zanesville Railroad Company v. Clinton County, 1 Ohio State, 77; Cass v. Dillon, 2 Id., 607; The State v. Van Horn, 7 Id., 301; 8 Id., 401; Stien v. The Mayor of Mobile, 24 Ala., 591; Taylor v. Newbern, 2 Jones' Eq., 141; Police Force v. The Succession of McDonough, 8 La. An., 341; 11 Id., 649; Parker v. S cogin, 1 Id., 119; St. Louis v. Alexander, 23 Mo., 483; Strickland v. The Mississippi Railroad, 21 Miss., 209; Aspinwall v. Commissioners of Knox County, 21 Howard, 539; Zalinske v. C. C. R. R. Co., 23 How., 381; Mygatt v. The City of Green Bay, 8 Am. Law Reg., 28.
III. The moral aspect of the questions; citing Commonwealth v. Commissioners of Allegheny County, 32 Pa. S. R., 235; The State v. Van Horne, 7 Ohio, 331; The State v. The Trustees of Union Township, 8 Ohio S. R., 401; The State Bank v. Hunter, 1 Dev., 125.
Knapp Caldwell and J. F. Wilson for the appellee.
No written or printed argument was found on file.
Parker Edwards being of counsel for some counties resisting the collection of interest coupons attached to railroad bonds, submitted an argument which was considered by the court, reviewing the judicial history of this question as presented by the decisions of the Supreme Court in the cases above cited; and contending that the question has never been finally settled, and that stare decisis does not apply. In support of the proposition that such bonds and coupons when void in their inception cannot be rendered valid by a transfer to third parties, they cited WOODWARD, J., in Stokes v. Scott Co., 10 Iowa, 166; 2 Par. Cont., 252; 12 East, 304; Edward's Prom. Notes, 337; Edwards v. Docie, 4 Barn. Ald., 212; Smith v. Strong, 2 Hill, 24.