Yant v. Brooks

19 Iowa 87 | Iowa | 1865

Wright, Ch, J.

At the special election ordered by the board, the question of appropriating thirty thousand dollars to aid in the construction of the “Des Moines Valley Railroad” was also submitted and decided affirmatively. The court below sustained the prayer of the»petition so far as to enjoin this appropriation and all proceedings thereunder. From this order there has been no appeal. Our present inquiries are to be confined, therefore, alone to the validity of the orders of the board of supervisors and the election held thereunder, so far as they relate to the several bridges therein named, and the propositions to raise a tax to pay the proposed appropriations.

i. ehgcbridges, And the first and main question made by the appellants is, that the supervisors had no power to submit these questions at a special election, but that this could only be done at a general election. That the point made may be the better understood, a brief reference to the several provisions of the statute becomes necessary.

By the provisions of the Code of 1851 (ch. 15; Rev., ch. 22), it is declared that the county judge may submit to the people of his county at any general election, or at a special one called for that purpose, the question whether the county will construct, or aid to construct, any bridge which may call for an extraordinary expenditure. (Bev., §' 250, Code, § 114.) Article 11, chapter 22 of the Bevision, provides for the creation of a board of supervisors in the several counties, defines their duties and the duties of certain other county officers. The first section declares “ that each organized county shall be a body politic, * * * with such powers and immunities as shall be established by law.” The board of supervisors, at any lawful meeting, have the powers prescribed in section 11 of said article (Bev., § 312), and among others the following: “To have the care and management of the property and business of the county in all cases where no other provision shall be made“ to provide for the erection of all bridges which may be necessary, and which the public convenience may require within their respective counties, and keep the same in repair.” And then follows this provision: “It shall not be competent for said board of supervisors to order the erection of a court house, jail, poor house, nor other public building or bridge, nor the purchase of real estate for county purposes, when the probable cost will exceed two thousand dollars, until a proposition therefor shall have been first submitted to the legal voters of the county, and voted for by a majority of all voting for and against such proposition, at a general election ; notice of the same being given,” &c. Section 324 provides, that “ after the taking effect of this act, neither the county judge nor County Court shall have or exercise any of the powers hereby conferred upon the board of supervisors,” &c. By the next section it is declared, that “ in all cases where the powers hereby conferred upon said board have heretofore been by law exercised by the county judge, County Court, or other county officers, the said supervisors shall conduct their proceedings under said powers in the same way and manner, as nearly as may be, as is now provided by law in such cases for the proceedings of said county judge, County Court and county officers, provided they are not inconsistent with the provisions of this act.” The last section (326) provides, that “ all acts and parts of acts heretofore enacted, and which are inconsistent with this act, are hereby repealed.”

By an act passed at the same session of the General Assembly, entitled, “ An act to conform existing laws to the change made in the system of county government and organization ” (art. 13, chap. 22, Revision), it is declared: “ That all laws which may be in force at the time of the taking effect of this act, devolving any jurisdiction or powers on county judges, which said jurisdiction or powers are conferred on the county board of supervisors by an act of the present General Assembly, entitled, 1 An act creating a board of county supervisors, defining their duties and the duties of certain county officers,’ shall be held to apply to and devolve such jurisdiction and powers upon the said county board of supervisors in the same manner, and to the same extent, as though the words ‘county board of supervisors’ occurred in said laws instead of the words ‘county judge.’ ”

, , Argu. 1. BsotbE°-f visoks. From these several provisions a few propositions may be stated, as to which there can be no room for con-7 troversy.

Argu. % County judge: election. And it was the intention of the legislature to make a complete and radical change in the board or officers having the management or control of the county business or government. In other vtords, it was the design to substitute the board of supervisors for the county judge, and confer upon them, so far as relates to the management of the affairs of the county and the government thereof, all the powers and duties before that time devolving upon him. Following this, as a necessary deduction, is the proposition that the county judge has no power to submit to tbe voters of tbe county any question in relation to the affairs of the county, but this duty and right belongs exclusively to the supervisors. And this power is to be exercised in the manner pointed out in the statute, and not otherwise.

The power then being with the supervisors, the question is how and when it is competent for them to submit such propositions. Appellants insist that all propositions to construct or aid to construct a bridge or bridges, must be submitted at a general election. The appellees on the other hand claim that section 250 of the Revision authorizes the submission of the question whether the county will construct or aid to construct any bridge, at a general or special election; that subdivision 23, § 312, cb. 22 only requires the submission at a general election where the object is to order the erection of a bridge; that to erect or construct, and aid to construct are or may be distinct in their nature; that to do the whole may and would involve a greater expenditure than to aid or do a part, and hence one can only be done at a general election while the other may be done at a special election, that tbe two statutes are not necessarily in conflict or inconsistent, and that it is therefore our duty to so construe them if possible, as that both may stand.

A 3 amsTBnerepeal. We acknowledge the full force of the proposition, that tita repeal of a statute by implication is not favore¿ by the courts. The doctrine upon this subject we had occasion to recognize in Casey v. Earned, 5 Iowa, 1, and with what is there said we are content to abide. And see Ament v. Humphrey, 3 G. Greene, 255; United States v. Boyd, 5 How. U. S., 37. It is a proposition of equal weight, that a court should, in the construction of a statute, take into view the general system of legislation upon the subject matter, bringing all into review, whether repealed or unrepealed. (Mayo v. Boyd, 3 Mass. 13; The People ex rel v. Utica Ins. Co., 15 Johns. 380; Bruce v. Schuyler et al., 4 Glim., 221, 12 N. H., 284.)

Now we have already said that tbe legislature intended to provide for a new system of county government and to substitute another tribunal or board with the powers in the new act prescribed. This is manifest from the first section of the act creating the board of supervisors, which endows each county with the powers of a body corporate or politic. Not only so, but we know that it was the design and intention to abandon the old or former system of county governments and introduce a system deemed to be better calculated to promote the prosperity of the counties and protect the rights of the people therein. This appears from the several acts before referred to, as well as the whole history of our legislation on the subject. One evil design to be remedied, was to prevent the submission of questions involving the expenditure of large sums of money, to the people at a special election. From time to time we have abolished special elections, or elections to be held at other times than when all our officers for'the year were to be chosen. The object was to obtain a full and fair expression of public sentiment upon all matters affecting the public welfare. It was known and felt that at these special elections the vote was apt to be partial; that an expression of opinion from all the voters of the county was not so likely to be obtained, and hence the proposed change, the necessity of which must be admitted by the experience of all.

. . Argu. 4. Mdtoeconf Aside from this, however, we think the position of appellants is sustained by the language no less than by treason of the statute. Under the cowers to con-L struct, it is admitted that there exists the power to aid to construct. If, then, the supervisors have the power to aid to construct, how or when is such a proposition to be submitted ? Ata special election ? Certainly not. For the statute from which the power to aid is implied, expressly says that the vote cannot be taken at any other than a general election. If it is said that the power to aid is derived not by implication, but from the former statute (§ 114 of the Code, and § 250 of the Rev.), then the difficulty is that this section also provides that a proposition to construct may be submitted at a special election. Not only so, but this view loses sight of the repealing clause of the new statute, and of the changes inaugurated in the system of county government. Then again, where would this argument lead us ? We are looking at this question now as one of power. If a proposition to aid may be submitted at a special election, while one to construct or do the whole thing must be at a general election, then the evil designed to be remedied would remain in all its force. For though the construction might cost $30,000, which the county proposed to aid to the extent of $29,000, it could be done at a special election, whereas, if the whole $30,000 was required, it must be done alone at a general election. And so it would for ever so great a sum and however great the proportion to be appropriated by the county. We cannot believe that the remedy was designed to be thus partial or limited. Our opinion is, that the legislature intended that all these questions should be submitted at a general election; at a time when all the voters would be more likely to be at the polls, and when there would be less probability of foisting upon the people, by interested parties, a debt and taxation against their wishes and interest. And so concluding upon the first question presented in this discussion, it becomes unnecessary to consider the other objections made by appellants against this vote.

Reversed.