Long v. Boone County, 32 Iowa 181

Long v. Boone County

32 Iowa 181 | Iowa | 1871

Day, Ch. J.

All of the warrants are in the usual form of an order upon the treasurer, payable o'ut of any funds in the treasury, except those named in the fourth, fifth and sixth counts, which contain the words for “ bridging and grading road.” Defendant insists that warrants executed for grading and improving public roads, and for bridges or *183culverts thereon, are void. This view the court below adopted in overruling the demurrer as to the first point. The case of Soper v. Henry County, 26 Iowa, 264, relied on by defendant in support of-this position, simply decides that a county is not liable for injuries sustained through the want of a culvert fourteen feet wide,’three feet across, constructed over a ditch ten feet deep, for the reason that the duty of keeping such culvert in repair does not devolve upon the county. The case does not decide that a county may not lawfully issue a warrant for the purpose of grading and bridging a highway. Upon the contrary, it is said in Barrett v. Brooks, 21 Iowa, 144, that a county has power to aid in constructing roads and bridges, and the authority to levy a tax to execute these powers. And reference is made to section 253 of the Revision, which, as section 117 of the Code of 1851, was in force at the time these warrants were drawn, and which, with reference to a county tax, provides that “ when the object is to construct or to aid in constructing, any road or bridge, the annual rate shall be not less than one mill on a dollar of the valuation. From this provision the authority of a county to aid in constructing a road is necessarily implied. The court, in our opinion, erred in holding the warrants void for the reasons set forth in the answer.

Inasmuch as the warrants, under the allegations in the answer and counter'claim, are legal, it becomes unnecessary, in the present case, to inquire whether money paid upon a void warrant can be recovered.

The cause is, upon plaintiff’s appeal, reversed and remanded for new trial. Reversed.