McMillen v. County Judge of Lee County
6 Iowa 391
Iowa
1858
Check Treatment
Wright, C. J.

— The power of a county to take stock in a company, organized for the purpose of constructing a railroad, or other public improvement, through the same, has been recognized by a majority of this court, in the following cases: Dubuque County v. Dubuque and Pacific Railroad Company, 4 G. Greene, 1; Leech v. Bissell, County Judge of Cedar County, 4 G. Greene, 328; Clapp v. Cedar County, 5 Iowa, 15; Ring v. Johnson County, ante, 265. While I have never concurred in this ruling, and still deny the power, yet it may now, as I suppose, be regarded as settle,d. Assuming this much, I think but one question remains to be considered in this case; and that is, whether the legislature had the power to pass the act of January 29th, 1857, and did it have the effect of legalizing the vote taken.

The language of the law is, “that all votes heretofore taken in the counties of Lee and Davis, in the form of a joint or several proposition, whether said counties will aid 'in the construction of one or more railroads, specifying the amount to be given to each, as a joint or several proposi*393tion, and the subscriptions made by said counties, and the bonds of said counties issued in pursuance of said votes and subscription, or hereafter to be issued, are hereby declared to be legal and valid; and that all such bonds issued, and hereafter to be issued, in pursuance of such votes and subscriptions, shall he a valid lien upon the taxable property of said county.” It is also provided that the county judge, or other proper authority, shall levy and collect a tax to meet the payment of the principal and interest of such bonds; and that said counties shall not be allowed to plead, in any suit brought to recover the principal or interest of such bonds, that the same are irregular and invalid, in consequence of the informalities cured by said act. And, finally, all bonds issued by said counties for subscription to railroads, in pursuance of any vote of the people, are declared to be valid, and of full legal and binding force and effect, notwithstanding any informality or irregularity in the submission of the question to the vote of the people.

By reference to the case of McMillen et al. v. Lee County, 3 Iowa, 311, it will be seen that three propositions were submitted at th,e same time to the voters of Lee county, but that the subscription was not to be made to either of the companies, tinless there was a majority of the votes cast in favor of each and all of them. This was held to he irregular, and it is this irregularity which was designed to be cured by the legislature. And it seems to me very clear, that if the legislature can authorize the counties to make such subscriptions, by a vote of the people, it can certainly legalize and cure any informality or defect in taking the vote. Having the power, the legislature could have authorized in advance, the county judge to submit the question as he did. He submitted it, however, in a manner not provided for in the law, and subsequently this submission is legalized and declared valid. I cannot see how it can change the matter, whether the power is given beforehand, or the informality cured subsequently. The right of the legislature to pass such laws, retrospective in *394their character, cannot, as I think, be seriously questioned. The policy of such legislation is another thing, with which I have nothing to do. The case of The City of Bridgeport v. The Housatonic Railroad Company, 15 Conn., 475, is in point. See, also, 3 Dallas, 385; 8 Pet., 110; 2 Ib., 412, 661.

It is urged, however, that the act of January 29th, 1857, is unconstitutional. It is claimed to be so, because it legalizes the votes and bonds issued in Davis and Lee counties —does not embrace all the counties — and cannot, therefore-, have a uniform operation throughout the State. . The language of the constitution, (section 6, Art. 1), is that “all laws of a general nature shall have a uniform operation.” It will not be claimed, certainly that this law is of a general nature. And thus, we see that this objection is without foundation.

It is also urged that the curative act is not a law, but a legislative sentence, and that the constitution confers no power to thus legislate. The true inquiry, however, is, whether the exercise of the power is inhibited. In ascertaining the power of the legislature under the constitution, we look, not to what the instrument authorizes to be done, but to what is prohibited. In this Case, there is no provision prohibiting, either expressly, or by implication, such legislation.

The other objections relate to the power of the legislature to authorize a county to make such subscriptions. Eor reasons before stated, I need not refer to these. While I concur in denying this power, I am of the opinion that it was perfectly competent for the legislature to legalize and make valid any informality or defect in the vote taken.

Decree affirmed.