Stewart v. Supervisors of Polk County.

the present, be regarded or regretted, that, finally, the professional and general judgment of men will assent to its correctness, and that its views as to the inviolability of private property, and as to the nature and legitimate purposes of taxation, will be laid up among the fundamental, acknowledged and cherished axioms of American constitutional law.

It follows that, in my judgment, the plaintiffs were entitled to the maintenance of the injunction they had procured, and that the court erred in dissolving it.

NOTE.-WRIGHT, J., and BECK, J., each delivered an opinion concurring in their conclusions with the chief justice, and COLE, J., delivered a dissenting opinion.

In 1870, the general assembly passed an act (ch. 102) containing similar provisions with the one passed upon in Hanson v. Vernon, and that act was subsequently brought before the supreme court for adjudication in the case of Stewart v. Supervisors of Polk Co. As the court in the latter case overruled their decision in the former, we believed it better to insert the decision here instead of waiting for its appearance in the regular reports. The decision is copied from the Western Jurist for November, 1870.

STEWART V. SUPERVISORS OF POLK COUNTY.

Constitutional law-when acts of legislature may be declared unconstitutional. Right of legislature to tax in aid of railroads.

Courts of justice are authorized to declare a legislative act unconstitutional and void, only when it violates the constitution, clearly, palpably, plainly and in such a manner as to leave no reasonable doubt.

The right to exercise the power of eminent domain in behalf of railroads and other improvements of public utility is recognized by all the courts and denied by no one. The right to take private property under this power for public use is conditioned upon making compensation.

The taxing power being one of the sovereign powers vested in the general assembly by the people, and not being limited either expressly or by clear implication in the constitution to the condition of making compensation, the judicial power possesses no authority to thus limit it.

As the legislature may constitutionally exercise the right of eminent domain, which is limited by the constitution, in aid of the construction of railroads etc., so also may it exercise the taxing power which is not thus limited.

APPEAL from the order of the judge of the Polk district court.

Petition in equity, by the plaintiff, a property owner, against the board of supervisors of Polk county, for an injunction to restrain

Stewart v. Supervisors of Polk County.

the levy of a tax voted by the qualified electors of Des Moines and Lee townships respectively, in said county, under an act of the General Assembly, approved April 12th, 1870, entitled "an act to enable townships, incorporated towns and cities, to aid in the conetruction of railroads."

The petition was presented to the judge of the district courtHon. H. W. MAXWELL-in vacation. The defendants appeared and filed an answer, and, on a hearing, the injunction was refused, from which refusal the plaintiff appeals.

Barcroft & Gatch, for plaintiff.

Polk & Hubbell, for defendant.

MILLER, J. The case before us raises the question of the validity of chapter 102 of the laws of the thirteenth general assembly, granting local aid to railroads.

No question of superior importance and gravity is ever presented to the courts for adjudication than one involving the validity of an act of the legislative department of the government, and none demands more careful examination and serious consideration in its determination.

This is peculiarly true in this case, inasmuch as an act of likǝ character to the one under consideration was held void by a majority of this court in Hanson et al. v. Vernon et al., June term, 1869, and that a subsequent general assembly, by the passage of the act of April, 1870, re-asserted the power denied them in that case.

If this case but involved a second time the validity of 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.

The first section of the act declares "that it shall be lawful for any township, incorporated town or city to aid in the construction of any projected railroad in this state, as hereinafter provided."

"SEC. 2. Whenever a petition shall be presented to the council or trustees of any incorporated township, city, or trustee of any township, signed by one-third of the resident tax-payers of such

Stewart v. Supervisors of Polk County.

township, city or town, asking the question of aiding in the construction of any railroad to be submitted to the voters thereof. it shall be the duty of the trustees, or council, or board of trustees, to immediately give notice of a special election, by publication in some newspaper published in the county, if any be published therein, and also by posting said notice in five public places in each township, city or town, at least twenty days before said election, which notice shall specify the time and place of holding said election, the line of road proposed to be aided, the rate per centum of tax to be raised, and the township or townships, incorporated town or city, in which such tax shall be expended; at which election the question of “ taxation" or "no taxation" shall be submitted, and if a majority of the votes polled be "for taxation," then, in that case, the township clerk, recorder, or clerk of said election shall forthwith certify to the county auditor the rate per centum of the tax thus voted by such township, city, or town. The board of supervisors shall, at the time of levying the ordinary taxes next following said special election, levy all taxes voted under the provisions of this act, and cause the same to be placed on the tax lists of the proper townships, cities or towns, and said taxes shall be collected at the same time, in the same manner, and be subject to the same penalties for nonpayment, as other taxes: Provided, That the aggregate amount of tax levied under the provisions of this act, in any township, city or town, shall not exceed five per centum of the assessed value of the property of said township, city or town.

"SEC. 3. The funds collected under the provisions of this act shall be paid out by the county treasurer to the treasurer of the railroad company, upon the orders of the president or managing director of the railroad company, whose road such tax has been voted to aid; which orders shall be accompanied by sworn estimates of the engineer in charge of the work on such road, showing that double the amount of such orders has been expended for the construction of such road, in accordance with the terms of the notice provided for in section two of this act, and also by a certificate, signed by the members of the council, or board of trustees, or a majority of the members thereof, of the township, city, or town voting the tax for which said orders are drawn, to the effect that the provisions of this act have been so complied with as to entitle said company to the amount called for by such orders; and it is hereby expressly provided, that no part of the funds raised under

Stewart v. Supervisors of Polk County.

the provisions of this act shall be expended in any other townships than those specified in the notice of election: Provided, however, That should the taxes not be drawn from the county treasury in accordance with the provisions of this act, by the railroad company in whose favor the same may have been voted, within two years after the date of the collection thereof, then the right of said railroad company to said funds shall be deemed forfeited, and the same shall be repaid by the county treasurer to the persons from whom the same may have been collected.

"SEC. 4. All railroads constructed by or with the aid of any taxes levied and collected under the provisions of this act 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 authority and power of the courts to annul an act of the legislature, in conflict with the fundamental law, has been repeatedly asserted and is now universally acknowledged. While this authority is unanimously conceded, the cases, with entire uniformity, hold that it is never to be exercised in doubtful cases.

The supreme court of New York, in Clark v. The People, 26 Wend. 599, says, that "the power of the courts of justice to declare the nullity of legislative acts which violate the provisions either of the constitution of the United States or of the state, while it is undoubted, should be exercised with extreme caution, and never where a serious doubt exists as to the true interpretation of the provisions alleged to be repugnant.

In Illinois, it is said that the true inquiry is whether "the will of the representatives, as expressed in the law, is or is not in conflict with the will of the people, as expressed in the constitution, and unless it is clear that the legislature has transcended its authority the courts will not interfere. Lane et al. v. Dorman et ux., 3 Scam. 238.

See, also, in support of this rule, the following cases: Foster et al. 7. The Essex Bank, 16 Mass. 245; The Farmers and Mechanics' Bank v. Smith, 3 Serg. & R. 6373.

Many other cases might be cited, but I forbear, as this court has frequently declared the same doctrine.

In Santo v. The State, 2 Iowa, 208, it is said by Mr. Justice WOODWARD, that "although the power is universally admitted, its exercise is considered of the most delicate and responsible nature, VOL. I.-31

Stewart v. Supervisors of Polk County.

and is not resorted to unless the case be clear, decisive, ard unavoidable. It is the duty of the court to give an act such construction, if possible, as will maintain it; citing Rice v. Foster, 4 Harring. (Del). 479; Fisher v. McGin, etc., 1 Gray, 1; Maize v. The State, 4 Ind. 342; Commonwealth v. Williams, 11 Penn. 61; State v. Cooper, 5 Blackford, 258; 2 Peters, 522; Ogden v. Saunders, 12 Wheat. 270; 19 Johnson, 58; 1 Conn. 550; Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cran. 87.

In the case of Morrison v. Springer, 15 Iowa, 304, this court held, that it "will declare a law unconstitutional only when it is clearly, palpably and plainly inconsistent with the provisions of that instru ment "; and Mr. Justice WRIGHT, in his opinion in that case, cites a long list of authorities in support of the rule announced.

See, also, McCormick v. Rush, 15 Iowa, 127; Whiting & Whiting v. City of Mt. Pleasant, 11 Iowa, 482-485; McGregor v. Baylis, 19 Iowa, 43; Duncombe v. Prindle, 12 Iowa, 1.

The same rule of construction has been declared in Massachusetts, Pennsylvania, and other states. Adams v. Howe, 14 Mass. 347; Sharpless v. The Mayor, etc., 21 Penn. 162; Thorp v. R. R. Co., 21 Vt. 142; The People v. Draper, 15 N. Y. 543.

Having seen that courts of justice are authorized to declare a legislative act unconstitutional and void, only when it violates that instrument, clearly, palpably, plainly, and in such a manner as to leave no reasonable doubt, we proceed to inquire whether there is any checks on legislative power, independent of, or in addition to, those which are to be found in the constitution, or, in other words. whether the courts possess the power to annul an act of the legislature for any other reason than that of its plain, clear and palpable violations of the written constitution.

It is said that "the judiciary may arrest acts of the legislature on the ground that they are unjust and immoral;" "that there are certain principles of natural justice which not even the legislature can be permitted to disregard." It is conceded, that the power of the legislature must be confined to "making laws." It cannot administer or execute them. So the very words of the constitution which vests the power of legislation in the general assembly, exclude the judiciary from any share in it; and such share they will undoubtedly possess if they are at liberty to refuse to execute a statute, on the grounds that it is not in harmony with their notions. of morality and justice. Mr. Sedgwick, in his work on statutorv