Hetherington v. Bissell, 10 Iowa 145

Hetherington v. Bissell

10 Iowa 145 | Iowa | 1859

Weight, C. J.

We do not propose to re-exSlw^^t^iy**®^" questions decided in the case of Davis & Bro. v. Woolnough, 9 Iowa 104. A brief reference will be made to some further considerations now presented by counsel.

It is claimed that the act of 1857, providing for the incorporation of the City of Dubuque, is divisible, and that the repealing act of 1858 may be and is constitutional as to so much of the charter as provides for a city court, though unconstitutional as to the other part. The act oi 1858, in a few words, but expressly, repeals the acts of 1857, or at the least this was the design and intention. By the charter the power and right to exercise the corporate privileges therein granted, the administration of the fiscal, prudential, and municipal affairs of the city, and the conduct, direction and government thereof are vested in part in the city judge or the city court. To strike out this part of the charter by holding the repealing act valid, would be to strip the corporation of one of the modes adopted by the legislative will, for giving efficiency to the municipality created, and leave it without a department deemed essential to its completeness. The act giving the charter is an entirety. It is repealed in the same way. A court vested with the powers given to that provided for in this charter, if not a necessary, at least is not an unusual incident to a city government, Then, if the legislature could repeal a portion of a city charter in this method, so it could by expressly providing for the repeal of specific portions; and then upon the same ground amendments could be made, new powers be conferred, and old ones taken away, in time the essential features be changed, and the intention of the constitution, as we interpret it, be entirely defeated. The inhabitants of the city are as competent to amend the charter in this respect as in any other. As we have seen in the cases of Davis & Bro. v. Woolnough, supra, and Ex parte Pritz, 9 Iowa 30, the intention of the constitution was to leave power over these subjects with the local governments, or the people composing them.

The argument that the court is not an inferior one, within *148the meaning of the constitution, and therefore could not be created, is now stated in this form: That an inferior court is one from which an appeal lies to a superior, and over which it (the superior) has a supervisory power and control, that no appeal lies from the City to the District Court, and the latter has no supervisory control over the former, and therefore it is not inferior. But the language of the constitution is not that the courts not named, and_ which the legislature have power to establish, shall be inferior to the District, but to the Supreme Court. The constitution gives the Supreme Court supervisory control over all inferior judicial tribunals, and the act incorporating the city and creating the city court provides for appeals direct to this court.

It is claimed that by article 12, section 2, of the New Constitution, the power of the legislature to repeal this charter is retained. The argument is that the act of 1857, was not to take effect until after the meeting of the General Assembly next after its passage; that this section continues in force all laws not inconsistent with the constitution, until they shall expire or be repealed; that this law was repealed and therefore it is at an end. The force of the argument we do not appreciate. All of the propositions stated may be true, and yet the conclusion be unwarranted, unless the repeal was a valid one. To concede this would be to yield the whole argument, and to insist upon it as true, is to claim the very point in controversy. The repealing act is invalid, because it is legislation upon a subject inhibited by the constitution, and therefore it can not put an end, as counsel expresses it, to the act attempted to be repealed. The argument made by appellants, if sustained, would give the legislature authority to repeal every town or city charter existing at the time of the adoption of the constitution. And this is exactly what we decide can not be done.

Judgment affirmed.